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

CONSTITUTIONAL LAW (Mazzone) (Spring 2014)
I. The Document and the Doctrine
   A. The Constitution of the United States: An Overview
      1. The United States Constitution contains seven articles
         a. Articles I to III correspond to the three branches of the federal government of the United States; i.e., the Executive Branch,
             the Legislative Branch, the Judicial Branch
            i. The Articles do things like establish the three branches and impose limits upon them
         b. Article IV deals with the states
         c. Article V explains how to amend the United States Constitution
         d. Article VI contains a supremacy clause and explains how to get things up and running
         e. Article VII explains the procedure for ratifying the United States Constitution
      2. The United States Constitution has been amended twenty-seven times
   B. District of Columbia v. Heller (2008) (Supreme Court of the United States) (Associate Justice Scalia)
      1. Facts: The case involves federal law. The District of Columbia passed the most restrictive gun control law in the United States.
          It specifies that one can neither register handguns nor possess unregistered firearms. One additionally must keep his firearms
          disassembled or equip them with a trigger lock. Π brings a Second Amendment argument against the law because he wishes
          to possess a handgun in his home and keep it ready to use for purposes of self-defense.
      2. Issues: (1) Does the Second Amendment protect an individual right? (2) What does the Second Amendment mean?
      3. Holdings: (1) Yes. (2) Justice Scalia (majority) and Justice Stevens (dissent) interpret the Second Amendment differently. Π
          wins and is able to keep the firearm at his home in an operative state
         a. Scalia: (1) The right is a right to keep a handgun at home for self-defense. (2) The right is an individualistic right that exists
             at home. (3) The right exists in many contexts. (4) The prefatory clause does not limit it.  
            i. He looks to the meaning of the terms of the Second Amendment at the time (1791) when looking at historical sources that
               shed light on the meaning of the terms; e.g., The English Declaration of Rights, state constitutions, and English history
            ii. The right in question is not unlimited and Scalia recognizes two limits on it: (1) Type of weapon. (2) Who can possess it.
                (a) United States v. Miller: (1) Weapons that were “common at the time” (1791) is not limited to muskets. (2) “Arms” at
                     the time of the case refers to those commonly in use in 2008. (3) Handguns are the most commonly used self-defense
                     weapon today
                (b) There are longstanding prohibitions on the possession of firearms by felons and the mentally ill
         b. Stevens: The prefatory clause qualifies what comes next and limits the right at issue to militia service
      4. How far does the right extend outside the context of the home?
         a. A law prohibiting concealed carry was struck down in Illinois
            i. The court relied on the Heller case; i.e., the individualistic right relating to self-defense extends outside of the home
      5. Problem 1: The .223 caliber Bushmaster AR-15 rifle is a semi-automatic weapon
         a. Samantha’s Attorney:
            i. Semi-automatic weapons as a class are very common
                (a) The AR-15 rifle is among the most popular sporting rifles in the country; i.e., it is a common weapon in use
            ii. The Second Amendment protects the right to have the weapon at home for self-defense
                (a) Samantha has the AR-15 rifle at her home
         b. Opposing Counsel:
            i. The AR-15 rifle is highly deadly 
            ii. The Second Amendment protects the handgun for self-defense purposes
                (a) The weapon is popular for sporting purposes as opposed to purposes of self-defense and is more for military purposes
II. An Early Case Study: The Bank of the United States
   A. A Bank of the United States was desirable because having branches around the country would be more efficient and the Bank
        would facilitate tax collection, spending, and the performance of other functions (the execution of powers that are enumerated
        in the Constitution)
      1. There was debate about the Bank because the United States Constitution is silent on the issue
         a. The federal government is of limited authority and requires authorization from the Constitution
            i. Article I lists the powers and does not appear to contain anything about a Bank of the United States
            ii. Amendment X puts forth that powers that are not given to the federal government are reserved to the states
               (a) Federalism: There exists a division of power between the federal government and the states
   B. Arguments Supporting and Opposing the Bank of the United States
      1. James Madison (against): (1) The Bank is merely convenient rather than necessary. (2) The power to establish a Bank of the
          United States would have been written into the Constitution had it been important.
      2. Edmund Randolph (against): One must read things narrowly and not deviate from the list of enumerated powers
      3. Thomas Jefferson (against): A congressional power to incorporate canals was rejected in the past
      4. Alexander Hamilton (for): The necessary and proper clause gives Congress broad discretion to determine how to carry out the
          enumerated powers
   C. McCulloch v. Maryland (1819) (Supreme Court of the United States) (Chief Justice Marshall)
      1. Facts: Δ demands that the branch of the Bank of the United States in Maryland pay a tax because it is operating in Maryland.
          Π (local cashier) refuses to pay the tax.
      2. Issues: (1) Does Congress have the power to incorporate a Bank of the United States? (Does the U.S. Constitution authorize
          the incorporation of such a Bank?) (2) Can Maryland tax such a Bank?
      3. Holdings: (1) Yes. The Bank survives. (2) No.
         a. (1) The phrase “necessary and proper” means “a useful way of carrying out things that one has permission to carry out” and
             opens the door to decide which means to use from among a variety instead of acting as a constraint 
            i. Analogous to the argument that Hamilton makes in support of the Bank
         b. (1) The document at issue is a constitution that is meant to endure and is not and ought to not be like a statute produced by
             the legislature that lists everything or a legal code
            i. All means to pursue a legitimate end cannot be anticipated and the government has the power to select the best means
         c. (1) “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 and not prohibited, but consist with the letter and spirit of the constitution, are constitutional”
            i. Appears to be very loose and allow a lot of leeway
         d. (2) Article I, § 10: The states cannot lay duties on imports or exports
         e. (2) Article VI (“suprem

writs of mandamus in a way that would let a person go to the Court and ask for such a writ in the first instance 
               (b) Marshall chooses the Constitution over the federal statute, refuses to follow the statute, and declares the statute void
                  (i) Article VI (supremacy clause): The Constitution is supreme to federal law and state law
                     [a] The Constitution is listed first and therefore must be superior
                     [b] Statutory law must be made in pursuance of the Constitution in order to be valid
                  (ii) Article V provides a way to change the Constitution
            ii. (3) Marshall swore an oath to uphold the Constitution
               (a) The Constitution does not give judges the power of judicial review; i.e., to determine the validity of statutory law
         e. Note: Π could have sued in a court that had original jurisdiction regarding the matter at issue
             i. Π started in the wrong place because he relied on an unconstitutional statute; i.e., § 13 of the Judiciary Act of 1789
               (a) § 13 of the Judiciary Act of 1789 is thought to expand jurisdiction         
   B. Executive Disagreement about Constitutional Meaning
      1. Marbury v. Madison established that the Supreme Court has the power to decide constitutional questions
         a. There are alternatives to the Court deciding constitutional questions
            i. The President of the United States
               (a) Andrew Jackson vetoed the Second Bank of the United States as President because he thought it was unconstitutional;
                    i.e., on constitutional grounds 
               (b) A Presidential Signing Statement reflects an independent assessment of the constitutionality of a congressional act by
                    the President of the United States
               (c) The Attorney General of the United States announced that the Department of Justice would no longer defend Section
                  3 of the Defense of Marriage Act in court because the President concluded that it was unconstitutional
            ii. The United States Congress assessing the constitutionality of the acts that it adopts
   C. State Resistance of Unconstitutional (?) Laws
      1. A third alternative to the Supreme Court deciding constitutional questions has to do with the states
         a. Virginia, Kentucky, and other states resisted the Sedition Act of 1798
            i. At least one state is associated with an assertion of power to nullify the Sedition Act        
         b. A referendum is an event in which the people of a state vote for or against a law that deals with a specific issue
            i. Montana, Legislative Referendum No. 122 (2012) is an example
               (a) It declared that the healthcare statute was unconstitutional and void and that enforcement of it would be prevented
         c. One concern is uniformity