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Constitutional Law I
University of Illinois School of Law
Mathews, Jud

·         state-action doctrine: constitutional duties only attach to the government
o    normally a private citizen can't violate someone else's rights
·         Structure & Workings of the S.C.
o    if CJ is in the majority, then he assigns who writes the opinion.
o    if he's not in the majority, it's the senior-most justice that assigns the opinion
o    you can concur specially where you don’t actually join the opinion, but you just write for yourself
o    so what happens when you don't have a majority opinion? PLURALITY
·         plurality = the opinion that has the most people
·         the precedent is what all the people  in the “majority” agree on
o    concurrences, dissents aren't binding
·         When should the Supreme Court overrule itself?
·         stare decisis – let the decision stand (why?: applicability, legitimacy, self-imposed restraint)
·         the situation has changed, the decision confuses lower courts
·         constitutional issues: the court should be more willing to overturn itself
o    it's the only way that the law can change in a constitutuonal ruling
o    ex. if it makes a bad ruling about a statute, Congress can just change it
·         they only really overturn if there's a good case to do so
o    they usually just narrow extremely without overruling.
·      How Democratic is the Constitution?
[[The Original Constitution]]:
democratic features
undemocratic features
popular election to the house (1.2.2)
SLAVERY (1.1.3; 1.9.1; IV.2.3 – runaway laws; V)
reps apportioned by population (1.2.3)
[BUT 3/5 clause] suffrage requirements left to the states (1.2.2)
fixed terms of office (1.2.2, 1.3.2)
Senate chosen by state legislature (1.3.1)
no property req to serve in fed gov't
malapportionment of Senate (1.3.1; V)
President chosen by electors, picked as states wish (II.1.2)
unelected, un-term-limited Supreme Court (III.1)
amendments only by supermajority: 2/3 of each house or convention & approved by 3/4 vote
[[The Constitution as amended]]:
(15) no vote denial based on race
malapportionment of Senate (1.3.1; V)
(17) direct election of senators
President chosen by electors, picked as states wish (II.1.2)
(19) voting rights for women
unelected, un-term-limited Supreme Court (III.1)
(23) DC participates in Pres. elections
(24) no poll taxes
(26) voting age lowered to 18
More Democratic Features:
o    7th Amendment – trial by jury in civil cases
o    13th Amendment – gets rid of slavery
o    14th Amendment – declares birthright citizenship
o    15th Amendment – no one can be denied the right to vote on the basis of race, etc.
o    19th Amendment – gives women the right to vote
o    22nd Amendment – sets Presidential term limit
o    23rd Amendment – DC residents can vote for President
o    24th Amendment – no poll taxes, etc.
o    26th Amendment – lowers the voting age to 18
·      How did we get the Constitution?
o    Articles of Confederation (1781): weak central authority, effectively no executive branch, has to ask states for money, treaties have to be ratified by 9 of the states → Constitutional Convention (1787) → Ratification (1788)
                                    I.         Marbury v. Madison – Marbury appt'd justice of peace by Pres. Adams at end of his term (signed, not delivered). New Pres Jefferson told Sec. of State, Madison to withhold commission → Marbury brought suit in SC for writ of mandamus against Madison
·         SC has power of judicial review & has limited original jurisdiction which may not be enlarged by Congress
·         Marbury has a right to the commission: signed by President, sealed by the SOS
·         Marbury has a remedy: if there's a right there's a remedy UNLESS there's a reason not to grant a remedy [political questions], but here it was part of his duty to deliver the commission. → Law reqs the commission to be delivered.
·         The remedy requested (writ of mandamus) can't be given by the SC: The Judiciary Act of 1789 (which allows writs of mandamus to begin in SC) is unconstitutional b/c Congress cannot expand the original jurisdiction of the S.C.
o    Original Jur = b/w states or b/w states & fed; cases affecting Ambassadors, other public Ministers & Consuls etc.
o    JUDICIAL REVIEW – doesn't get used again until Dred Scott (1857)
o    Marshall's 5 Points:
1.      it is the province and duty of the judicial department to say what the law is.
2.      the Constitution is the supreme law of the land and must prevail over legislation
3.      judges take an oath to uphold the Constitution
4.      the Constitution establishes a government of limited powers – the court must check the legislature.
5.      Supremacy Clause, Article 6, Paragraph 2
                                  II.         Who gets to say what the Constitution means?
The Oathkeepers: the citizens. 
Marbury: the judiciary/S.C.
                                 C.         Constitutional Interpretation:
o    District of Columbia v. Heller – DC ban on handguns w/o license & lock'd while in home; Police Officer Heller denied license for a gun he intended to keep at home
·         A complete ban on handgun possession in the home violates the 2nd Amend. right to bear arms, as does its req that any lawful firearm in the home be inoperable for the purpose of immediate self defense.
·         a complete ban on a class of weapons violates the Constitution
·         2nd Amendment = A well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
§  “right of the people” = individual rights vs. collective rights
§  “to keep and bear arms” = to hold in one’s possession (literal/dictionary definition)
·         history: purpose was to enable ppl 2 create a militia & militas were prevented from forming in UK by depriving ppl of weapons → contention founders intended 2nd only apply to military purposes = historically inconsistent
·         “not a right to keep & carry any weapon whatsoever in any manner whatsoever & for whatever purpose”
§  some safety regs OK: banning felons/children/mentally ill, and having registration requirements.
·         dissent: 2nd created to protect right of ppl to maintain militia → right to bear arms 4 military purposes only
·         (Stevens) textual: “the amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia”
·         (Breyer) interest-balancing approach: to violate the 2nd a reg must be unreasonable or inappropriate. DC's reg is a permissible legislative response to a serious problem → srs crime & deaths
o    originalism: understanding is fixed at the time of the writing
·         did the drafters of the second amendment intend it to protect an individual right to self-defense?
·         did the ratifiers of the second amendment understand it to protect an individual right to self-defense?
3.      would an ordinary person at the time of the second amendment's passage understand it to protect an individual right to self-defense? → look at other state constitutions, dictionaries
              F.            Art. I: Powers of Congress
o    Necessary & Proper Clause (Art. I, §8): ” Congress shall have Power… To make all Laws which shall be necessary & proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the US, or in any Department or Officer thereof.”
1.      McCulloch v. Maryland: Madison, part of the writing of the C, changes his mind & authorizes the creation of a bank; MD sued the MD branch of the Bank of the US for non-payment of state taxes.
·         Madison was in a position to learn what they needed: a strict originalist viewpoint would foreclose that learning opportunity which may be important to the survival of the country
·         Congress has the power to incorporate a bank → necessary & proper
§  (Marshall) necessary = convenient, useful, or essential vs. “absolutely necessary” in Art. 1, §9, clause 2
§  implied power – the constitution is short, so we have to imply certain powers that would be nece

rce, it must also have the ability to remove restraints on interstate commerce.
4.      Carter v. Carter Coal (1936): Bituminois Coal Conservation Act → production is NOT commerce
·         commerce =  intercourse for the purposes of trade & incl. “transportation, purchase, sale, and exchange of commodities between the citizens of the different states.”
·         Commerce does not include the production & manufacture of commodities, even when done w/ intent to sell or transport them out of state.
·         “plainly, the incidents leading up to & culminating in the mining of coal don't constitute such intercourse.”
·         mfgr vs. transport of goods: Production is not commerce, but a step in preparation for commerce. Production of goods and subsequent transport in interstate commerce involves 2 distinct & separate activities. Production & manufacture are purely local activities and are subject to state regulation.
5.      Hammer v. Dagenhart (1918): father sued on behalf of his 2 sons, seeking to enjoin enforcement of an act of Congress intended to prevent the interstate shipment of goods produced w/ child labor.
·         purpose of act = to regulate production → but freedom of K! if congress can reg this, can reg anything!
·         interstate commerce power = begins w/ transport of goods
·         To allow Congress to exercise power over local mfgr, would effectively remove 10th amend. power
·         10th Amend./zone of powers: “the grant of power of Congress over the subject of interstate commerce was to enable it to regulate such commerce, and not to give it authority to control the states in their exercise of the police power over local trade and mfgr.”
·         (Holmes dissent): immediate vs. indirect effects of use of commerce power “[act] not made any less constitutional b/c of the indirect effects that it may have, however obvious it may be that it will have those effects” → obvious w/ the immediate effects that congress can reg under the commerce power
·      when a State begins to ship manufactured goods across state lines, they are subjecting themselves to the control of Congress. No direct regulation of the States has occurred.
6.      Champion v. Ames (1903): Act of Congress criminalized interstate shipment of lottery tickets → constitut'nl
·         cannot regulate the interstate sale of goods made w/ child labor but CAN regulate the interstate sale of lottery tickets
·          the lottery ticket itself is the thing that's being regulated, not the production of it
·         Champion vs. Hammer = regulation of the prod (ticket) vs. regulation of production (child labor)
·      moral conservatism vs. economic conservatism (freedom of K)
·      decided 15 years apart, different court structure (only two overlapping justices)
                                                   B.            Post-New Deal transitions: 3rd Commerce Clause Era → BROAD power
dormant commerce clause – states passing regulation that interfere w/ interstate commerce too much
pre-emption – state legislation is preempted by federal law even if it doesn't directly conflict
                                                                         ·            Roosevelt, New Deal – extensive federal regulation of industry
                                                                         ·            Supreme Court overturned much of the first new deal