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Constitutional Law I
University of Illinois School of Law
Hamilton, Daniel W.

Con Law Outline | Spring 2012 | Prof. Hamilton
Thursday, January 05, 2012
9:42 AM
A.      Constitution’s Functions
·         Creates national government and separates power to create a system of checks and balances.
a.       Article I – Creates legislative power and vests it in Congress
b.       Article II – Vests executive power in President
c.        Article III – Vests judicial power in Supreme Court and inferior courts created by Congress
·         Divides power between federal and state governments (federalism).
a.       10th Amendment – explicitly reserves power not granted to federal government for states
b.       Article VI Supremacy Clause – establishes hierarchical relationship between state and federal government à federal law preempts state/local laws if they conflict
c.        Limits the ability of states to impose burdens on each other (e.g., cannot regulate/tax interstate commerce to place undue burden on it) (dormant commerce clause).
·         Protects individual liberties-(except for B of Rts few parts of C pertain to indiv. Rts.)
a.       Constitution’s protections of individual liberties apply only to governmental action, not private (exception – 13th Amendment prohibition on slavery directly regulates private behavior)
b.       Bill of Rights initially only applied to federal government
Why the Constitution is difficult to change, Broad outline, An attempt by society to limit itself to protect the values it cherishes most/society’s attempt to tie its own hands
B.      Interpretation of the Constitution
·         Complicated because:
a.       Only a broad outline/many problems not considered
b.       Open-textured language (e.g., “necessary and proper,” “commerce among the states,” etc.)
c.        Courts often have to determine what, if any, government justifications are sufficient to permit the government to interfere with a fundamental right
·         Originalism v. Nonoriginalism
a.       Originalism – the view that judges deciding constitutional issues should confine themselves to enforcing norms that are stated or clearly implicit in the written Constitution.  Originalists believe that amendment is the only legitimate means of constitutional evolution.
b.       Nonoriginalism – the view that courts should go beyond that set of references and enforce norms that cannot be discovered within the four corners of the document
c.        Arguments for Originalism:
                                       i.            the nature of interpreting a document requires that its meaning be limited to its specific text and the framer’s intentions
                                     ii.            Desirable to constrain the power of unelected judges in a democratic society
d.       Arguments for Nonoriginalism:
                                       i.            Desirable to have Constitution evolve by interpretation and not only by amendment because the amendment process is too cumbersome to meet the needs of a changing society
                                     ii.            There is not an unambiguous, knowable framer’s intent.
                                   iii.            Nonoriginalism was intended by the framers (did not intend their intent to govern later interpretations of the Constitution)
1.    Authority for Judicial Review:  
·         Marbury v. Madison (1803, Justice Marshall)
o    Facts:  Adams (Federalist, lameduck President) appointed Marbury justice of the peace in D.C. (wanted to pack courts with federalists). 
·         Marbury’s appointment wasn’t delivered to him before Adams left office.  When Jefferson (anti-Federalist) took office, he refused to deliver the commission to Marbury. 
·         Marbury applies to S.Ct. for writ of mandamus forcing Madison to deliver the commission. 
·         Marbury doesn’t get writ because the law under which he applied for it was unconstitutional.
o    What it established
·         Authority for judicial review of both federal executive and legislative acts
·         Article III as the ceiling of federal court jurisdiction
§  Congress can't expand original jurisdiction of Supreme Court
·         Look at article III, section 2, clause 2
·         Authority for judicial review of legislative acts
§  Does this by declaring unconstitutional a provision of federal law (Judiciary Act of 1789) which court interprets as authorizing SC to exercise mandamus on original jurisdiction
·         If repugnant to constitution, constitution wins
·         “It is emphatically the province and duty of the judicial department to say what the law is.”
§  Ultimately Marbury does not issue writ of mandamus for Marbury
·         Martin v. Hunter’s Lessee (1816, Justice Marshall)
o    What it established
·         Authority for judicial review of state court decisions
o    Arguments as to why
·         Structure of constitution presumes SC can review state court decisions
§  Article III deals with types of cases, not courts.  The subject matter of the cases confers jurisdiction, not the court where it originates.
§  Federal court review is a restraint on state sovereignty analogous to other restraints (i.e. the Guaranty Clause)
§  States do not have absolute sovereignty, they are bound to obey the Constitution (Article VI).
·         Constitution is based on recognition of that “state attachments, prejudices, jealousies, and interests might sometimes obstruct, or control, or be supposed to obstruct or control, the regular administration of justice.”
·         Essential to ensure uniformity in the interpretation of federal law
o    Facts
·         Land dispute.  Martin claimed right to land as a grant from Fairfax, Hunter claimed right to land as a grant from VA.  Jay’s Treaty of 1783 prohibits seizure of loyalists’ land, thus S.Ct. said that land rightly belonged to Martin and ordered VA court to find for him. 
·         VA court said that S.Ct. didn’t have right to review state court decisions and that §25 of Judiciary Act was thus unconstitutional.
·         S.Ct. upheld right to review state court decisions that rest on federal law.
·         Cohens v. Virginia (1821, Justice Marshall)
o    What it established
·         Reaffirmed the constitutionality of § 25 of the Judiciary Act and the authority of the Supreme Court to review state court judgments.
o    Arguments as to why
·         States can't be trusted to protect federal rights
§  Dependent for office and salary on the will of the legislature
o    Facts
·         Two brothers named Cohen had been convicted in a Norfolk, Vir., court for selling District of Columbia lottery tickets in violation of Virginia law. The Cohens claimed they were immune from state laws because the lottery tickets had been authorized by Congress.
1.    Introduction: Congress and the States:
·         McCulloch v. Maryland (1819, Justice Marshall)
o    What it established
·         Necessary and Proper Clause
·         Supremacy Clause
o    Facts
·         The State of Maryland sued the Maryland branch of the Bank of the United States for non-payment of state taxes levied against it
o    Question 1: Does congress have the authority to create bank? (Marshall makes 4 arguments)
1. Historical practice established the power of the congress to create the bank
Invoked history of the first bank as authority for constitutionalit

ck on congress is political process, not judicially enforced limits
b.    1890s-1937:  
o    United States v. E.C. Knight Co. (1895, Justice Fuller)
·   Facts: Merger of sugar refineries proposed which would give control of 98% of the sugar industry to one company.  Government brought suit to prevent merger under Sherman Anti-trust Act and the S.Ct. dismissed the action.
·   Decision: Constitution did not allow congress to regulate manufacturing
Sherman Antitrust Act could not be used to stop monopoly in sugar refining industry
·   What it established
Manufacturing of sugar see not as commerce
·         “Commerce succeeds to manufacture, and is not a part of it.”
·         Commerce is buying, selling and transporting goods, whereas manufacture is the transformation of raw goods that occurs wholly intrastate.
·   Distinction seems arbitrary
Maybe looking out for states
Monopoly in production means benefit in commerce
·   Majority applies categorical standards
Can divide and draw lines between things
Claim of protecting states' rights
·   Supreme Court renders Sherman Antitrust Act powerless
o    Carter v. Carter Coal Co. (1936, Justice Sutherland)
·   Facts: Invalidated Bitumonous Coal Conservation Act of 1935 that regulated the maximum hours and minimum wages in coal mines.  Violators of act taxed 13.5% of their production. 
C brought suit seeking to enjoin Co. from complying with Act because it is not constitutional.
·   Decision: Court declared Bituminous Coal Act unconstitutional
Act found connection between coal and national economy and its production affected interstate commerce
·         Court says such effect as they may have upon commerce, however extensive it may be, is secondary and indirect
Trying to dictate wages and hours for workers and price of coal
·         Court saw this related to production, not trade
Court says commerce is “intercourse for the purposes of trade.”
·         Mining seen as production, not trade/commerce
·         Brings subject matter of commerce into existence, commerce disposes it.
·   What it established
Production is not commerce
o    Houston, E. & W. Texas Ry. Co. v. United States (1914, Justice Hughes)
·   Facts: ICC set rail rates between TX and Shreveport, LA.  RR charged cheaper rates to ship within TX so goods would stay in TX. 
Government brought suit to enforce ICC rates. 
Court said that ICC could set rates in Texas because they have a substantial relationship to interstate traffic.
·   Decision: Court upheld Interstate Commerce Commission ability to set intrastate railroad rates because of direct impact on interstate commerce
Railroad ordered to charge same rates from either Dallas or Shreveport
·   What it Established
Congress' authority extend to instruments of commerce
·         Trains (here) / boats (Gibbons)
·         States can't affect these