Select Page

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

Constitutional Law


Spring 2016

The Document and the Doctrine

DC v. Heller – [second amendment: militia; statute interpretation]

Constitutional language: “A well regulated Militia, being necessary to the security of a free State, [prefatory clause] the right of the people to keep and bear Arms, shall not be infringed.” [operative clause] Rule: second amendment also protects the right to use “operable” “handgun” “at home for self-defense use” in DC.

Fact: a police officer wanted to buy a handgun for self-defense use, but was refused by DC because “only registered weapon is lawful in DC,” but handgun can not be registered, and weapons has to be dissembled and trigger-locked. Heller sued DC.

Majority opinion: (Scalia)

Second amendment means “all law-abiding people” could “keep arm.”

What: only common-used weapon (rifle, short gun and hand gun)
Who: people who passed the criminal record check, mental situation check

Does not protect gun dealers; thus the 2015 Obama Act that requires all dealers to have license and carry out background check on their customers are constitutional.

Where: within home; not at sensitive places like schools
How: commercially bought guns.

Prefatory clause does not limit or expand the operative clause. Prefatory clause clarifies the purpose of the right.
Scalia looks to state constitution, English declaration of rights, history.
Looks to language as understood at the time.


The prefatory clause limits the second amendment rights to the right of individuals to join the militia.
Such reasoning split operative clause with prefatory clause. (Stevens J.)
It should be left to the legislator to decide the issue. (Bryer J.)

The Bank of the United States

McCulloch v. Maryland – [Necessary and Proper Clause; enumerated power; conflict; supremacy clause; Article six]

Constitutional language: “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or officer thereof.”

“Necessary” in necessary and proper clause means nothing but “useful/convenient.”
State does not have the power to tax an institution created by Congress pursuant to its powers under the Constitution.

Fact: In 1781, Congress chartered the Bank of North America using the necessary and proper clause of I, 8. The State of Maryland enacted a law imposing tax on this bank.

Majority opinion: (Marshall J. – supported by Hamilton)

Congress has not only the enumerated power, but all the power that is “necessary and proper” to carry out the enumerated power. (Congress has discretion to decide whether it is means to the end)

The bank is a convenient means to the end of tax, borrowing, regulating trade. (enumerated power)
“Necessary and proper” clause allows, but does not limit the means. Because “constitution is made to endure ages to come . . . to be adapted to the various crisis of human affairs.”
The “necessary and proper clause” is placed under the right section, not the limit section.

State can not tax an institution created by Congress pursuant to its powers under the Constitution.

States do have the power to tax.
But federal has supremacy over state (Article Six). Therefore, when there is conflict between state and federal law, state law has to yield. Here is conflict because

Tax is a power to destroy. (Imagine every state tax on the bank)
Article I ban on duties;
Structure of government: federal is allowed to tax on Maryland because there is representative of Maryland in Congress; but there is no Congress’s representative in Maryland.

Congress only has the enumerated power. (Madison)

This case established that Federal government is superior to State government; thereafter, congress could use this power to legislate.

Constitutional Interpreters

Background of Stuart v. Laird & Marbury v. Madison

1789 Judicial Act

1801 Judicial Act

1802 Judicial Act

Temporary Circuit Court



Permanent Circuit Court



No Circuit Court



Because the 1802 Judicial Act, federal judges in circuit courts are repelled even though they are in good standing.

This violates the Article Three: “The Judges . . . shall hold their Offices during good Behavior.”

Stuart v. Laird – [inferior tribunal; lower court]

Rule: Congress has the authority to establish and abolish lower federal court.


1802 Judicial Act is valid use of constitutional power because Congress could abolish “inferior tribunal.”
Court ducked the issue of constitutionality of “justice in good standing is repelled.”

Marbury v. Madison – [Judicial review, Article Three]

Constitutional Language: In all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State Shall be Party, the supreme court shall have original jurisdictio

not to those which are completely within a particular state.” – Gibbons v. Ogden
A dam, though located within the border of a state, is also a part of interstate commerce. – Wilosn v. Black-Bird Creek Marsh Co.

Who is entitled to regulate interstate commerce:

Congress – I,8.

Under Dormant Commerce Rule

Could regulate dam on interstate channel but is within state border. – Wilson v. Black-Cheek Bird Creek Marsh Co.

Under Police Power (Convert a “commerce” issue into “police” issue)

Could require vessel master to provide report on each customer. – Mayor of the city of New York v. Miln.

Interstate commerce that is substantially local

State could regulate aspects of interstate commerce that is so local in character as to require diverse treatment. – Cooley v. Board of Wardens

Congress confer power upon state

Congress could confer power on state to regulate interstate commerce. – Cooley v. Board of Wardens.

Under Market Participator Rule

when a state enters the market as purchase for end use of items within interstate commerce, it may strict its trade to its own citizens or business within the state – Hughes v. Alexandria Scrap Corp

Restriction upon state’s power to regulate interstate commerce

Pike rule

Available only if the regulation is related to state interest and the burden imposed on interstate commerce is not excessive. – Pike v. Bruce Church Inc.

Invalidity per se rule

Available only if regulation is not pro-protectionism – City of Philadephia v. New Jersey


Constitutional Language: “The Congress shall have power . . . to regulate commerce . . . among the several states.” I, 8.

Gibbons v. Ogden – [commerce clause; interstate commerce; definition; supremacy]

Rule: Commerce Clause allows partial regulation within the state.

Fact: Ogden has a license issued by New York government of exclusive right to operate steamboat between NY and NJ. Gibbons has a license issue by Congress to operate steamboat in the same area. Ogden then sued Gibbons.