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

Constitutional Law Outline
Overview of the Constitution
1.      Article I-Legislative
a.       Section 1- establishes the legislature, Congress, as the first of the three branches
b.      Section 2- defines the House of Representatives
c.       Section 3- defines the Senate
d.      Section 4- defines how members of Congress are to be elected, and how often they should meet
e.       Section 5- establishes procedural rules of Congress
f.        Section 6- establishes that members of Congress will be paid, cannot be detailed while traveling to and from meetings of Congress, and can’t hold other elective offices while in Congress
g.       Section 7- defines the legislative process (how bills become laws)
h.      Section 8- defines the powers of Congress
i.         Section 9- defines the legal limitations on Congress’s powers
j.         Section 10- defines specific powers denied to the states
2.      Article II- Executive Branch
a.       Section 1- establishes the offices of the President and Vice President
b.      Section 2- defines the powers of the president and establishes the president’s cabinet
c.       Section 3- defines miscellaneous duties of president
d.      Section 4- addressed the removal from office of the President by impeachment
3.      Article III- Judicial Branch
a.       Section 1- establishes the Supreme Court and defines the terms of service of all U.S. Federal judges
b.      Section 2- defines the jurisdiction of the Supreme Court and lower federal courts, guarantees trial by jury in criminal courts
c.       Section 3- defines the crimes of treason
4.      Article IV- Concerning the States
a.       Section 1- Requires that each state must respect the laws of all other states
b.      Section 2- Ensures that citizens of each state will be treated fairly and equally in all states, and requires the interstate extradition of criminals
c.       Section 3- Defines how new states may be incorporated as part of the United States, and defines the control of federally-owned lands
d.      Section 4 -Ensures each state a “Republican form of Government” (functioning as a representative democracy), and protection against invasion
5.      Article V- Amendment Process-defines the method of amending the constitution
6.      Article VI- Legal Status of the Constitution- Defines the Constitution as the supreme law of the land
7.      Article VII- Signatures
8.      Amendments (first 10 are bill of rights)
a.       1st- Ensures the five basic freedoms: freedom of religion, freedom of speech, freedom of the press, freedom to assemble and freedom to petition the government to remedy (“redress”) grievances
b.      2nd – Ensures the right to own firearms (defined by the Supreme Court as an individual right)
c.       3rd- Ensures private citizens that they cannot be forced to house U.S. soldiers during peace
d.      4th – Protects against police searches or seizures with out a warrant issued by a court and based on probable cause
e.       5th- Establishes the rights of citizens accused of crimes
f.        6th- Establishes the rights of citizens in regard to trials and juries
g.       7th- Guarantees the right to trial by jury in federal civil court cases
h.      8th- Protects against “cruel and unusual” criminal punishments and extraordinarily large fines
i.         9th- States that just because a right is not specifically listed in the Constitution, does not mean that right should not be respected
j.         10th- States that powers not granted to the federal government are granted either to the states or the people (the basis of federalism)
k.       11th- Clarifies the jurisdiction of the Supreme Court
l.         12th- Redefines how the Electoral College chooses the President and Vice President
m.    13th- Abolishes slavery in all states
n.      14th- Guarantees citizens of all states rights on both the state and federal level
o.      15th- Prohibits the use of race as a qualification to vote
p.      16th- Authorizes the collection of income taxes
q.      17th- Specifies that U.S. Senators will be elected by the people, rather than the state legislatures
r.       18th- Prohibited the sale or manufacture of alcoholic beverages in the U.S. (Prohibition)
s.       19th- Prohibited the use of gender as a qualification to vote (Women's Suffrage)
t.        20th- Creates new starting dates for sessions of Congress, addresses the death of Presidents before they are sworn in
u.      21st- Repealed the 18th Amendment
v.       22nd- Limits to two the number of 4-year terms a President can serve.
w.     23rd- Grants the District of Columbia three electors in the Electoral College
x.       24th- Prohibits the charging of a tax (Poll Tax) in order to vote in federal elections
y.       25th- Further clarifies the process of presidential succession
z.       26th- Grants 18-year olds the right to vote
aa.   27th- Establishes that laws raising the pay of members of Congress cannot take effect until after an election
Alternative layout:
Sets up government (think LPJ):
Article 1- Legislative powers, powers of Congress
Article 2- Presidential powers, executes the laws as enacted by Congress
Article 3-Judicial power of the United States
Relations between states:
Article 4- Relations among the states, full faith and credit
How to change the constitution:
Article 5-Amendments
Importance of Constitution:
Article 6- Supremacy clause- constitution is the supreme law of the U.S.
How the constitution will come into effect:
Article 7- Ratification
 
Introduction
1.      Theories of Constitutional Interpretation
a.       Originalism- the meaning of the constitution is fixed at the time it was enacted. 
                                                               i.      Ways to frame the question as an originalist:
1.      Original intent: Did the drafters of the 2nd amendment intend it to protect and individual right to self-defense?
2.      Original understanding: Did the ratifiers of the 2nd amendment understand it to protect an individual right to self-defense?
3.      Original Understanding: Would an ordinary person at the time of the 2nd amendment’s passage understand it to protect an individual’s right to self-defense?- Dominant strand of originalism
4.      Original application
                                                             ii.      Pro-originalism: gives us a reference point and a way to frame the questions
                                                           iii.      Anti-originalism: framers had limited information about how the world would work, shouldn’t be bound by decisions made 200 years ago
CASE
FACTS
RULE
Arguments
Marbury v. Madison (Marshall)
Marbury is appointed by Adams but never receives his commission because it’s blocked by Jefferson
Supreme court has the constitutional authority to review executive actions and legislative acts
 
Outlines Sup Ct’s original and appellate jurisdiction
 
D.C. v. Heller (Scalia)
Handgun possession law.
 
Textual
 
THE POWERS OF CONGRESS
1.      Congress may act only if there is express of implied authority in the Constitution, whereas states may act unless the Constitution prohibits action
2.      Congress may enact laws that are necessary and proper to carry out their enumerated powers.  The Constitution is the supreme law of the land and state laws cannot interfere with federal laws enacted within the scope of the constitution.  See McCullough v. Maryland,
a.       Necessary and proper clause  Article I Section 8 [18]                                                                i.      Necessary is a broad term because the clause is placed among the powers of Congress and not among its limitations
1.      It expands rather than limits Congress’s power. 
                                                             ii.      Interpretational argument by Marshall: Textual; Degrees of the word will tell you how to interpret; other areas of the Constitution says absolutely necessary.
                                                           iii.      It is up to congress to judge what tools they need to do their work.  To limit what is necessary is to go beyond the powers of the judicial branch
b.      Interpretative argument: The constitution is an outlined with its important objects designated with minor parts to be deduced
c.       The government is one of enumerated powers.  Whatever is not enumerated is left to the states through the 10th amendment (some powers may be implied from other areas)
d.      Marshall “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are no prohibited, but consist with the letter and spirit of the constitution, are constitutional.”
e.       Supremacy clause: Power to create the bank implies a power to preserve it, a power to tax is a power to destroy, follows from supremacy that the power to tax must yield to Congress’s power. 
f.        Interpretative argument: Strict originalist view forecloses possible future learning which may be important to the survival of the country
CASE
FACTS
RULE
Arguments
McCulloch v. Maryland (Marshall)
 
MD taxes

ted
c.       Test: Does the activity have a substantial effect (in aggregate) on interstate commerce
d.      Abandons the distinctions between commerce and production and direct and indirect effects.
e.       Congress could exercise control over all phases of business, could regulate any activity that taken cumulatively had an effect on interstate commerce, and no longer was the 10th amendment a limit on congressional power (law would be upheld so long as it was within the scope of Congress’s power)
f.        Congress can regulate purely intrastate activities, including all aspects of business, if there is a rational basis for believing that there is an interstate effect.
8.      Congress may regulate activity that discourages interstate travel.  See Heart of Atlanta Motel
a.       Uncertainty stemming from racial discrimination discourages interstate travel on the black community
b.      Didn’t use 14th Amendment because it does not extend to prohibiting private discrimination
c.       Clark- Congress can decided how to remove obstructions in commerce as long as the means chosen are reasonably adapted to the end permitted by the constitution
9.      Supreme Court will uphold legislation under the commerce clause as long as Congress had a rational basis for finding there was a substantial impact.  See Katenback v. McClung
a.       Congress has the ability to require desegregation of restaurants under the Commerce Clause
b.      Congress had a rational basis for finding that racial discrimination in restaurants had a direct and adverse effect on the free flow of interstate commerce
                                                               i.      Policy: courts will not review data to determine if it is true.  Takes Congress at its word.
c.       Viewed in isolation, the volume of food was small but aggregate amount would substantially effect commerce
NOTE THE SHIFT IN IDEOLOGY
10.  Lopez outlines the three categories that Commerce Clause will reach
a.       The use of channels of interstate or foreign commerce which Congress deems are being misused (trade routes)
b.      Protection of the instrumentalities of interstate commerce and things moving interstate commerce (cars, trains, people, airlines)
c.       Those activities affecting commerce
11.  The activity being regulated must substantially affect interstate commerce.  See United States v. Lopez
a.       Note on Rehnquist- conservative and typically finds a way to carve out exceptions
                                                               i.      Economic has now crept into the analysis to be in “those activities affecting commerce”.  Note that possession of a gun is not economic activity
b.      Uses the outline from Perez
c.       Court asks if there is a rational basis for Congress to conclude that these activities have a substantial affect on interstate commerce.  Court just makes sure this is rational
                                                               i.      Analysis: The act did not have a jurisdictional nexus requiring that the firearms have some connection with interstate comer
                                                             ii.      Emphasis on the necessity that the activity being regulated have a commercial character
                                                           iii.      Congress had made no findings that school violence has a substantial commercial effect on interstate commerce. 
                                                           iv.      Regulated act only had a remote effect on interstate commerce
d.      Dissenting by O’Connor and Kennedy-Interpretive argument court should adopt a balancing test, concerned about federal encroachment on state power