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Constitutional Law I
University of Illinois School of Law
Mazzone, Jason

Professor Jason Mazzone

Fall 2012


I. The Document and the Doctrine

The Constitution of the United States

Preamble We the people in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare and secure the blessings of liberty, to ourselves and our posterity, do ordain and establish this constitution for the United States of America.

Articles I. Legislative Branch – Congress

Section 8 Clause 1 Power to lay and collect taxes, provide for general welfare and common defense

Section 8 Clause 2 Power of congress to borrow $ from US

Section 8 Clause 3 Commerce Clause

Gibbons v. Ogden, Wilson v. Blackbird Creek, NY v. Miln, Cooley,

Section 8 Clause 18 Necessary and Proper Clause

Creation of First National Bank Argument

II. Presidency

III. Judiciary

Section 1 Guarantees life service of federal judges

Stuart v. Laird

IV. States

V. Amendment Process

VI. Legal Status of Constitution

Section 1 Clause 2 Supremacy Clause

Section 1 Clause 3 fed congress and judges take oath to support const.

Marbury v. Madison

VII Ratification

Bill of Rights

Amendment 1 Freedom of speech, religion, press, assembly

2 Right to bear arms

DC v. Heller

3 Quartering soldiers in times of war

4 No unlawful search and seizures

5 Due process – life, liberty and property

6 Criminal prosecution right to speedy trial

7 Right to trial by jury in civil cases

8 No excessive fines or cruel and unusual punishment

9 Rights reserved by people that aren’t enumerated

10 Powers not delegated reserved for the states


11 States can’t sue other states

12 Election of P and VP process

13 Abolish slavery

14 People born in US Citizens AND states due process clause

15 Right of citizens to vote

16 US can lay income tax

17 Election process of senators

18 Prohibition

19 Women’s suffrage

20 Presidential terms and succession

21 Repeals 18th- Prohibition

22 Terms of office of the President

23 DC and electoral college

24 No poll tax in federal election

25 Succession to office of P and VP

26 18 year olds can vote

27 Cant change the pay of Congress without election

Right to Bear Arms

Amendment II

District of Columbia v. Heller (2008) (Supp: 11- 51)

Strikes down DC gun prohibition statute, unconstitutional under 2nd amendment, people have the right to bear arms (at least handguns) for self-defense in home.

Facts: DC has a statute prohibiting handguns (can’t register new guns), you need a trigger lock for registered firearms. Heller is a cop who applied for handgun license to keep in home and was denied.

Issue: What gun rights are protected under the SECOND AMENDMENT? Does it protect militia only or personal self-defense?

Holding: The statute is unconstitutional; self-defense is protected right under second amendment

Majority Reasoning (Scalia): The prefatory clause “a well regulated militia being necessary to the protection of the state” merely announces a purpose, does not limit or expand scope of operative clause. Cite historical evidence for support idea its an individual right (normal firearm possession).

-Antifederalists, at time constitution was being written, sought to preserve right to citizen’s militia to rise up against any unlawful government action. Militia just means able bodied men. Looking back at founder’s interests and states passing similar laws at the time affirms this.

-“bear arms” means to carry arms, not strictly military purpose

-Not inconsistent with Miller, which limits types of weapons allowed for home use, Second amendment is not UNLIMITED, a bazooka isn’t protected for example. Applies only to weapons of common use

Dissent (Stevens): Purpose of second amendment to allow people to maintain a militia, does not protect self-defense, no evidence of this from founders intent. Congress can regulate non-military use of weapons.

Dissent (Breyer): Law is consistent with 2nd amendment since it regulates gun control in urban areas, which was permissible at time constitution was signed.

II. An Early Case Study: The Bank of the United States

Necessary and Proper Clause Article (Federalism)

Note on the First Bank (CB: 27-28)

● In 1790 after the ratification of the constitution Hamilton proposed a national bank.

● Said it would strengthen national government

● And aid in the collection of taxes and administration of public finances and provide loans to government

● Note there is nothing in the constitution about banks

● First National Bank lasted 1791-1811 (20 years). 2nd Bank in 1816 (McCulloch)


● Summary:If the power is not in the constitution then it’s reserved for the states. Article 2 section 8. Constitution says nothing about bank.

● In Madison’s view, there were only three clauses which could be seen to grant such power:

○ The power to lay and collect taxes to pay debts and provide for the common defense and general welfare-ARTICLE I SECTION 8 CLAUSE 1

■ The creation of a bank had nothing to do with a tax

■ A bank had no defensive value, nor did it use taxes to provide for the general welfare.

○ The power to borrow money on the credit of the U.S. – ARTICLE 1 SECTION 8 CLAUSE 2

■ The bill did not include any provision for Congress to borrow money

■ The power to borrow money from a source is not the power to create a source from which to borrow money

○ The power to pass all laws necessary and proper to carry into execution those powers. – ARTICLE I SECTION 8 CLAUSE 18

■ This cannot grant a power that is not contemplated in the description of the above powers.

■ The creation of a national bank was not essential to the execution of any of the enumerated powers.

● Congress’s other powers are narrowly defined, and such a liberal interpretation of its powers to borrow and tax seems incongruous. Would create instability.


● Summary: No power of congress should be presumed, the law MUST be necessary and proper

● Wide implication of Congress’s power would put anything within its reach. Slippery slope.

● Can’t get this power from the preamble, congress has limited power, not the power to do whatever it wants


● Summary: Necessary in “necessary and proper “means absolutely necessary

● To take any power beyond what was specifically delegated to the United States via the Constitution would remove all limits on federal power.

● Too broad of a use of congressional power, to enlarge the scope like this would defeat the purpose of enumerating powers to assure a limited government


● The word “necessary,” as used by those above, was too narrowly understood, and could not bear such narrow construction. The necessary and proper clause meant to enlarge powers of congress, not limit them. What is required.

● Nothing in here that excludes a bank

● If the framers really didn’t want us to have a bank they could have said so

Note on the Second Bank (CB: 37)


shall Court (CB: 97-99)

The early Supreme Court was not nearly as prestigious as the court today.

● Washington and Adams had a trouble convincing people to serve.

● The turnover rate was high (3 CJ’s in the first 12 years)

● People routinely left the Court to take more prestigious positions, such as John Jay resigning from Chief Justice to become the governor of N.Y. after only 6 years.

● One of the problems was the fact that the Justices had to “ride circuit,” meaning they had to travel their jurisdictions twice per year to hear appeals alongside District Court judges.

● There were no circuit courts in the modern sense, consisted district judges sitting together with a supreme court judge as a circuit court

● The Court, while it was not as glorified as it is today, was able to simply grab certain powers without the notice of the public, most notably the power of judicial review of both state and federal laws.

● Marbury v. Madison was the first case of judiciary review and where marshall established a single opinion of the court (before each justice wrote one).

● States disagreed with courts holding of Chisholm saying cases arising between states and citizens of other states had original jurisdiction in federal courts.

○ Passed 11th amendment in reaction – the judicial power of the US shall not be construed to extend to any suit commenced or prosecuted against and of the United States by citizens of another state or foreigners w/o their consent

■ State sovereign immunity: a state can not commit a legal wrong and is immune from civil suit in federal court unless they consent

● The Judiciary Act of 1789 had set the Supreme Court at 6 members: five justices and one chief justice. There were 13 District Courts, and 13 judges among them.

○ Two Supreme Court justices would “ride circuit” with one district court judge, to hear appeals.

○ There were three “circuit” courts, of the above composition.

○ The Supreme Court only met twice per year; the rest of the time they were riding circuit.

○ One theory as to why justices rode circuit is that it kept them out of Congress’s hair.

The Election of 1800 (CB: 99-103)

Federalists: Adams, Hamilton, Randolph

Democratic Republicans: Jefferson

● The election of 1800 is fishy, Jefferson eventually wins and control shifts away from federalists

● The 12th amendment introduces a duo VP + P ticket, accommodates 2 party system, vs. a vote for a president with the second runner up becoming VP

● Federalists move to control judiciary before power switches over, Adams nominates Marshall as Chief Justice.

● Pass Judiciary Act of 1801 –midnight judges

○ Eliminated Supreme Court judges from riding circuit, quickly filled in feds with new circuit courts, obvious goal to make federal judiciary

● 1802 Jefferson repeals the act , enacts Judiciary Act of 1802- Repeal Act

○ Restores Supreme Court justices riding circuit, kicking out newly appointed circuit judges. Federalists think this is unconstitutional considering they are guaranteed a life service under Article III