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

Constitutional Law
Spring 2016
I. The Document and the Doctrine
The Constitution of the United States (CB: 1-15)
District of Columbia v. Heller (2008) (CB: 1732-68)
What's constitution claim? 2nd amendment to whether it include self-defense
Context of militia
Majority — two clause: prefatory and operative clause not contradict.
Prefatory clause not limit individual right is benefit to only militia, but lots of different things, not the only reason the right being protected.
Legislature history: ordinary people understand the meaning of the clause at the time of the clause. (not the drafter's intention)
Extend beyond only militia, but other like hunting, self-defense.
What's the right the majority recognize: right to keep handgun for self-defense at home.
Limit of the right p1743
(1) type of the weapon: common use
(2) scope of use: self-defense
(3) location: home
(4) license
(5) certain people not allow: felon, mental illness
II. An Early Case Study: The Bank of the United States
Note on the First Bank (CB: 29-30)
James Madison’s Speech on the Bank (CB: 31-34)
Opinions of Edmund Randolph, Thomas Jefferson and Alexander Hamilton on the First Bank (CB: 34-39)
Bank? Madison: no; Randolph: no; Jefferson: no;
Hamilton: yes. (1) power implied related power; (2) meaning of necessity: broad; useful is enough (not strict) (3) Why the congress established the bank: not prohibited; relate to other power
Article 1 section 8 clause 18: Necessary and proper clause (never a source alone)
Note on the Second Bank (CB: 39-40)
McCulloch v. Maryland (1819) (CB: 41-55, 67-72)
Context: state tax branch of the bank of U.S. (why? Maryland don't want the bank in their state)
Why congress establish the bank? Financial transactions that time; use state banks are not reliable and no branches across the country so inconvenient.
First issue: is congress created the bank constitutional?
Maryland argued that congress has some power, but limited. The argument is from 10th amendment: power reserved to state or people
Federalism: division of power between federal government and state.
Congress has to point where in constitution that support what they do within the power, otherwise, the act is invalid. (Article 1 section 8: congress power to act)
Marshall the same logic like Hamilton: implied power; necessary and proper.
Congress can choose what they see fit.
P53 paragraph 38; was Marshall decision good or not?
Convention in Philadelphia of proposal, rejected, so it's Madison's objection.
What to argue: because constitution already has it, so there is no need for amendment
Second issue: could Maryland tax the bank, constitutional or not? No.
We the people create U.S. federal government, not the people of Maryland.
What's in constitution that render taxing bank invalid? Article 6 section 1 clause 2—supreme law. It undermined the stability of the union.
Marshall concern: Power to tax is power to destroy.
What is the problem of state just tax the bank? (1) problem of representation, taxing in an un-accounting way (2) state collect tax from other state people, then other states do the same, on and on, may result in war.
III. Constitutional Interpreters
A. Judicial Review
Note on Judicial Review Before Marbury (CB: 110-11)
The Election of 1800 (CB: 112-17)
Stuart v. Laird (1803) (CB: 117-18)
Marbury v. Madison (1803) (CB: 121-34)
Without commission, Marbury still be the justice of D.C
What's the function of the commission: to prove he is justice of peace, to exercise his power (practical)
First sentence of the opinion: moved the court for a rule to James Madison, to show cause… (issue an order to M to respond of the lawsuit)
Mandamus: an order, to carry on government function
Madison doesn't show, ignored the order
1789 Judicial Act
1801 Judicial Act                                        
1802 Repeal Act
Supreme Court
CJ+ 5 associates
           ↓ ride
Circuit court                                                          
           ↑ ride
District court (13)
Circuit court (6)
 Judicial Act 1789
Circuit court (Circuit riding): temporary court, not like supreme court and district courts (permanent)
Adames appointed then secretary of state John Marshall as chief justice
Adamens enacted Judicial Act 1801, changing existing court, circuit court became permanent system (6)
Admans appointed justice of peace in DC, including Marbury
Marshall didn't send out the commissions, left to then secretary of state—Madison
1802 Repeal Act (by Jefferson)
Congress canceled supreme court term
Stuart v. Laird—more important case at that time, but the court didn't stand up
Marbury seemed to be insignificant
Last sentence of Marbury case: rule be discharged (case dismissed, rule is the same in the first sentence)
P127—original jurisdiction/appellate jurisdiction Article 3, Section 2
Why not congress expand its scope of supreme court original jurisdiction, why can't congress just change it?
Constitution is supreme law, other law inconsistent with it would be void—Article 6, section1, clause 2
If there is conflict between constitution and other statute, constitution came first
Why is supreme court's job to decide whether congress do too much or not, supreme court reach too far?
Oath argument—Article 6, section1, clause 3
The role of the court
Then Marbury could go to other court to seek relief.
P126,127   § 13 of judicial act of 1789
Reading it differently, maybe judge Marshall deliberately misread it in order to get a chance to get judicial review power
Supreme court has ultimate power to interpret constitution than other branches of government, why is that? There is modest explanation of Marbury today.
More a case of the court exercising Judicial Review narrowly
When Congress tries to add to the Court’s workload, the Court must take a stand
Best evidence: The Supreme court didn’t invalidate another federal statute for 54 years. (Dred Scott)
Jason Mazzone, The Bill of Rights in the Early State Courts, 92 MINN. L. REV. 1, 1-23 (2007). Available at SSRN: [Read pages 1-23] B. Executive Disagreement about Constitutional Meaning
Andrew Jackson, Veto Message (1832) (CB: 77-80)
Presidential Authority to Decline to Execute (1994) (CB: 82-84)
Presidential Signing Statements (hando

ive; NYC argue the power is not exclusive
Judge: dodge the question, say it's not commerce (p224 para 2)
Gibbons: cite it, said it's not interstate commerce
Law only kicks in when solely in NYC, no transaction going on so it's different from Gibbons
Is Barbour's reasoning of not interstate commerce make sense? State has certain interest here.
The dissent misread of gibbons (exclusive or not never decided) p229 para1
Cooley v. Board of Wardens (1851) (CB: 236-38)
Court dodge the issue: para 3 pilot…
We need to know about interstate commerce, not pilot.
The dormant Clause
P907 Pike test: if congress has not regulated (dormant), the state may regulate interstate commerce, so long as it's rationally related to legitimate state interest, and outweigh the burden of such interstate commerce action.
The test is hard to predict the decision of supreme court (more like a judgement call)
Requirement: State must have interest, can't be protectionism (like want to hive people or corporation favor),
Exception: Unless state itself is market participate, could favor itself (be protectionism) (other than that, fail Pike test) 
A4S2C1: if Pike test not helpful, could use individual right to challenge.
A1S10: state collude.
The Dormant Commerce Clause (CB: 906-10)
Dormant commerce clause
States have some power according to Pike test:
(1) Balance state interest against the burden of valid such power, hard to tell the result (when face it in exam, use the test make some plausible arguments)
(2) one way that always fail Pike test: protect own market from competition (Granhon v. Heald, 2005, only could order wine in the state, not outer states, supreme court held unconstitutional)
Exception: state government itself involve, could protectionism
On the hand, congress could authorize state the power to regulate interstate commerce, that otherwise unconstitutional (fail Pike test)
Why? Because the dormant commerce clause is to protect congress, congress is in full power, so could authorize states
Interstate Privileges and Immunities (CB: 240-44, 911-12)
V. Slavery
Constitution never say slavery. (commerce clause involve slavery—people move around)
Groves v. Slaughter (1841) (CB: 250-52)
Bar competition from other states is valid. (state has exclusive power over slavery)
Constitution that relevant to slavery:
A1S2C3: 3/5 of all other person—referring slaves (although not say it)
The clause: is not pro-slavery, only try to figure out the number of representatives in house (the compromise between North 0 and South 5/5)