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

Constitutional Law Outline – SPRING 2013- Mazzone
The Document and the Doctrine
       I.            The Constitution
a.       Separation of powers – divides power between three branches of government
b.      Supremacy Clause- Art VI- Constitution is the supreme law of the land
c.       Preamble- explains why articles are being adopted; democratic impulse
District of Columbia v. Heller (2008)
·         BACKGROUND: Heller, a DC police officer, authorized to carry handgun on duty, wanted registration.  DC law prohibits possession of firearms and prohibits carrying a handgun
·         CONSTITUTIONAL CLAIM: Heller says violates 2nd Amendment
·         HELD: Heller wins. DC law = unconstitutional. 2nd Amendment protects an individual right to possess a firearm unconnected with militia service.
o   Look to colonial era mindset to determine scope
o   Look at nature of weapon in addition to weapon’s popularity
o   Requirement to keep firearm disassembled makes it impossible for a citizen to use arms for the core lawful purpose of self-defense and is thus unconstitutional.
·         DISSENT: Founders would have made individual right aspect express if it was intended, only applies to militia service, courts still consider gun control laws constitutional so the majority opinion is inconsistent.
The Bank of the United States
       I.            Timeline
·                     1791: 1st bank
·                     1811: Not renewed
·                     1812: War of 1812
·                     1816: 2nd Bank of US
    II.            Constitutionality of the Bank
a.       Madison: Not Constitutional-> doesn’t fall under enumerated power
b.      Randolph: Not constitutional- congress only has powers necessary and proper.  Bank is convenient, not necessary.
c.       Jefferson: Not constitutional.  No power is in Congress that isn’t absolutely necessary.
d.      Hamilton- Yes, constitutional.  National bank is an inherent power of Congress. “Necessary” as defined by Jefferson would preclude too much.
McCulloch v. Maryland (1819)
·         BACKGROUND: Maryland passed tax on any bank not chartered within the state—Bank of US was the only one not in state.  Bank’s branch refused to pay tax. 
·         Art I, § 8: Enumerates powers-> rights of Congress to have power to pass laws necessary and proper to carry its enumerated powers:
o   Power to regulate interstate commerce
o   Collect taxes
o   Borrow money
o   Because the creation of the bank was relate to Congress’ power to tax, power to borrow, and regulate interstate commerce, BUS= constitutional.
·         Art. VI: Laws of US trump conflicting state laws
·         HELD: Congress had implied powers under the Necessary and Proper Clause of Art I, §8 to create the 2nd Bank of the US. Maryland lacks power to tax the bank.
·         Consider: Does the size of the tax matter? Would a $1 tax be unconstitutional?
o   State may not tax entity of federal government
o   MD taxing federal government means MD taxing people of the other states because that’s where federal government gets their money from
o   Slippery slope argument: May lead to war between the states if you allow one state to essentially tax another state.
Constitutional Interpreters
Stuart v. Laird (1803)
·         BACKGROUND: Stuart argued judge’s ruling could not be upheld after judge’s job was abolished by the repeal of the Judiciary Act of 1801
·         Court doesn’t decide if repeal= constitutional, only looks at transfer into circuit court and says court transfer is fine.
·         Judiciary Act of 1801
o   Create federal “midnight judges” so S. Ct. judges wouldn’t have to ride circuit
o   Abolished by repeal act of 1802
·         Judiciary Act of 1802
o   Reinstated circuit courts – back to the original system
Marbury v. Madison (1803)
·         BACKGROUND: Marbury was appointment by Adams as Justice of the Peace; didn’t get commission.
·         Does the applicant have the right to the commission he demands? Yes, it was signed and sealed.
·         If he has a right, do American laws afford him a remedy? Yes. Vested legal right.
·         If laws do afford him a remedy? Is it a mandamus issuing from this court?
o   Mandamus- order issued by court to a government officer
o   §13 of the 1789 Judiciary act gives S. Ct. original jurisdiction over writs of mandamus, so court must decide if this is a case of original jurisdiction. Marshall argues §13 violates Art. III, §2
o   Art III defines S. Ct. original and appellate jurisdictions
·         HELD: Congress doesn’t have the power to modify S. Ct’s original jurisdiction.  Constitution wins! There would be no point in a written constitution if courts could just ignore it. Congress is seeking to expand original jurisdiction beyond constitutional limits and they can’t do that.
o   Doctrine of Constitutional Avoidance- Judges, when confronted with a statute with different readings, go to the route of avoiding a constitutional conflict
o   Case establishes power of course to review what Congress has done/passed in terms of constitutionality.  S. Ct. can invalidate federal statutes for being unconstitutional.
·         Consider: Why is it the job of the court to assess what Congress has done/say things are unconstitutional?
o   Judge’s oath is to uphold Constitution
o   Constitution= superior to all other acts of legislature (Supremacy Clause)
o   Laws made in pursuance of the constitution
o   Subject matter jurisdiction- Any law made under jurisdiction is in scope of judicial power
·         Consider: Is it a good idea to give courts the power to invalidate federal statutes?
o   Argument against: can hinge upon 1 justice’s opinion.  No accountability for justices.  No practical checks on court
o   Arguments for: Lack of accountability can be good. No checks can be detrimental on finality of court decisions.
       I.            Role of President in Determining Constitutionality of Federal Statutes
a.       Jackson- vetoes bank because unconstitutional
b.      Signing statements:
                                                               i.      Signing a bill but won’t enforce unconstitutional interpretations
                                                             ii.      Reserves power not to carry out provisions of bill
Regulation of the Interstate Economy
Gibbons v. Ogden (1824)
·         BACKGROUND: Ogden filed complaint asking ct. to restrain Gibbons from operating on the waters between NJ and NY. NY state legislature exclusive navigation privileges to Ogden. 
·         HELD: Ruled for Gibbons.  Commerce includes intercourse and navigation.  Establishes Congress’ authority over states to regulate commerce crossing state laws
·         Art. I §8: “among several states”=“intermingled with”; Does this clause give Congress an enumerated power? Yes.
·         10th Am.: If power is not given to Congress, then it’s reserved to states.  But if Congress has a power, it does not necessarily mean the power is exclusive.
o   Marshall keeps precedent fact-specific.  Relies more on Supremacy Clause argument that the NY law conflicts directly with federal Licensing Act so State law loses.
Wilson v. Black-Bird Creek Marsh Co. (1829)
·         BACKGROUND: Owner of ship is sued for damages after running into dam; tried to use Gibbons to say he doesn’t have to pay because DE law conflicts with fed’l law.
·         HELD: Body of water only in De

e but you don’t have to comply with the Fugitive Slave Ac
·         Portion of the PA Statute that still survived- no PA judge can do what federal judge; this is a power vested in the Congress and federal government. Fed gov’t cannot compel state judges to hear this type of case.
Dred Scott v. Sandford (1857)
·         BACKGROUND: Dred Scott was a slave who moved to Missouri and tried to buy freedom from Sandford.  Sued Sandford in federal court for damages. 
·         HELD: Dred Scott (andany other American of African descent) is not a citizen; case dismissed.  Even if Scott is a MO citizen, he still can’t bring this case in fed’l ct. under Art III §2 because states get to define who is a citizen of the state but are constrained by federal imposed restriction that tracks race.
·         Art III: Only gives federal courts power to hear cases by citizens of the US and Scott was not a member of the political community formed and brought into existence by the Constitution.
·         Slaves=property under 5th Amendment. 
The Civil War and the War Power
The Prize Cases (1863)
·         BACKGROUND: 4/19/1861- Lincoln orders blockade of Confederate ports, seizure of ships traveling to them. 7/13/1861- Congress recognizes state of war. 8/6/1861- Congress ratifies Lincoln’s actions
·         HELD: Seizure upheld because President must respond to insurrections and congress has authorized use of militia and naval forces. Even if improper at the time, Congress later ratifies so it’s ok.
·         DISSENT: No authorization for seizing property in the absence of declaration of war by Congress and statute authorizing seizure.
Little v. Barreme (1804)
·         BACKGROUND: Danish ship was seized by US warship.
·         HELD:  Act limited president’s authority by only allowing the capture of certain values (not ones that were on voyage from French port)
·         Consider: Why does executive have power in Prize but not Little?
o   In Little, Exec was acting contrary to Congressional limitations
o   In Prize cases, president had to act decisively. Can put down internal rebellion immediately
Youngstown Sheet & Tube Co. v. Sawyer
·         BACKGROUND: Truman issues exec. order to Sec of Commerce to seize steel mills in response to looming strike for steel workers.  Argued needed to keep them going so military could still get resources for Korean War.
·         Why is seizure of steel mills a law-making power?
o   5th Amendment- Taking private property needs just compensation.  Only Congress can compensate, President can’t.   
·         HELD: Truman’s seizure= unconstitutional. Invalidates Truman’s seizure of steel mills.
·         CONCURRENCE: Jackson: Distinguishes:
o   Green light: Presidential assertion of power where Congress has authorized
o   Orange light (twilight zone): Presidential assertion of power where Congress is silent
o   Red light (lowest ebb): Presidential power where Congress has limited (instant case)