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Constitutional Law I
University of Kansas School of Law
McAllister, Stephen R.

Con Law


Spring 2015

1. Constitutional Overview

“The powers delegated by this Constitution are appropriated to the departments to which they are respectively distributed: so that the Legislative department shall never exercise powers vested in the Legislative or Judicial, nor…” –James Madison, Introducing the Bill of Rights


Article I (1): Congress

i. §1: Vests legislative powers in Congress (Senate and House)

ii. §2: House of representatives

1. Members chosen every two years

2. Prescribes qualifications for members: 25 yrs old, US citizen for 7 yrs,

3. Apportioned according to population, 3/5 compromise, census

4. Times, places and manner of holding elections – states have control

5. House gets to choose speaker and initiate impeachments

iii. §3: Senate

1. 2 members from each state, have 6 yr terms, chosen by legislature (changed by 17th amendment)

2. Division into 3 classes for election

3. Must be 30 yrs old

4. VP is president of Senate, but has no vote unless tied

5. Senate chooses officers

6. Senate has power to try impeachments

7. Impeachment is solely removal from office

iv. §4: Provides for senate and house elections.

1. Times manner, places prescribed by states

2. Congress assembles once a year

v. §5: Notes independence of each house’s rules, requires journals by each.

1. House decides if someone is unfit to sit in the House

vi. §6: Members and senators: certain privileges, can hold no other office.

1. Senators and house representatives immune from litigation

a. Privileged from arrest or prosecution for speech/debate on the floor

vii. §7:

1. Bills passed by Congress to President

2. 2/3 vote, President has veto override power

viii. §8: Powers of Congress

1. Enumerates congress’ powers: tax, spend, regulate commerce, coin money, create inferior federal courts, declare war, etc; make “necessary and proper” laws to carry out congress’ powers.

ix. §9: Restricts powers of congress: no ex post facto laws or bills of attainder, certain taxes barred, no titles of nobility.

1. Ex post facto: a law that criminally punishes conduct that was lawful when it was done.

2. Bill of attainder: law that singles out a particular person for punishment.

x. §10: Restricts states powers; can’t make treaties, coin money, tax exports, keep troops, or engage in wars.

1. No state shall impair the obligations of contracts.

Article II (2): President

i. §1:

1. Executive power vested in President (and Vice President)

2. Electoral college

3. Vote by ballot

4. Congress may determine the Time of choosing the electors, and day of voting, which shall be the same for every state in US

5. Must be born in US to become President, 35 yrs old, 14 yrs resident of US

6. Removal of President (goes to VP)

7. President’s pay can not be raised or diminished during presidency

8. Oath

ii. §2: President’s powers

1. Commander-in-chief of army and navy, power to grant pardons

2. Power to make treaties, appoint officers

3. Power to fill Senate vacancies.

iii. §3: President’s duties

1. State of the Union address, convene congress, receive ambassadors, commission officers, “take Care of the Laws be faithfully executed”

iv. §4: Sets impeachment standard.

Article III (3): Judicial Power

i. §1:

1. Vests judicial power of the U.S. in Supreme Court and inferior courts Congress creates; hold office during good behavior.

2. Judges get life tenure (to avoid decisions based on political pressure, want them to decided based on merits of the case), selected by the President w/ the “advice and consent of the Senate”.

ii. §2:

1. Establishes jurisdiction of federal courts (Cases arising under the Constitution, laws of the U.S., diversity jurisdiction, admiralty, etc.)

2. Cases for Supreme Court original and appellate jurisdiction;

3. Provides jury trials for crimes in the state where the crime occurred.

4. No jury for impeachment trials.

iii. §3:

1. Establishes crime of and

2. Punishment for treason. (attempting to overthrow/declare war on country)

Article IV (4): State Relations

i. §1: Provides for full faith and credit among states.

ii. §2: Privileges and Immunities Clause

1. Confers privileges and immunities among citizens,

2. Provides for extradition and fugitive slaves.

3. Limits the ability of a state to discriminate against out-of-staters w/ regard to “privileges and immunities” (constitutional rights and the right of individuals to earn their livelihood).

iii. §3: Sets rules for addition of new states and power for governing territories.

iv. §4: U.S. guarantees states “a Republican Form of Government” and protects them from invasion.

Article V (5): Amendments to the Constitution

i. Sets procedures for amending the Constitution.

1. 2/3 of both Senate and House (Congress) required to propose amendments

2. Must be ratified by ¾ of states

Article VI (6): Constitution’s Effects

i. §1: Pre-existing debts are good against the U.S.

ii. §2: Supremacy of the Constitution, laws “made in pursuance thereof” and treaties.

1. Constitution is “Supreme Law of the Land” – Judges of all states bound

2. State and local laws are deemed “preempted” if they conflict w/ federal law.

iii. §3: Government officials bound by oath to support the Constitution; no religious test for office.

Article VII (7): Ratification of the Constitution: Nine states necessary.

Amendments: 27 total amendments.

i. Bill of Rights: first 10 amendments (adopted in 1791)

1. Freedom of religion, free speech, right of assembly (peaceful) petition Govt

2. Right to keep and bear arms

3. No soldier may be quartered in any home w/out Consent of owner in time of war

4. Right to be secure in persons, houses, papers, and effects, against unreasonable searches and seizures – must have warrant based on probable cause


a. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury

b. No double jeopardy (for same offense)

c. Can’t be compelled to be a witness against himself

d. Can’t be deprived of life, liberty, or property w/out due process of law

e. Can’t be deprived of property for public use w/out just compensation

6. Right to impartial jury, speedy trial, and right to counsel

7. If value of controversy more than $20, have right to jury

8. No excessive bail, fines, or cruel and unusual punishments

9. Enumeration of rights in the Constitution does not deny natural rights retained by the People

10. Powers not delegated to the U.S. reserved to the states, or the People

11. States have immunity against suits based on alleged violations of federal law

12. Electoral college reform

a. Established procedure for choosing the President when no candidate receives a majority in the electoral college.

13. Prohibits slavery and involuntary servitude

14. Due Process Clause

a. (1) No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the U.S.; nor shall any state deprive any person of life, liberty, or property w/out due process of law; nor deny to any person w/in its jurisdiction the equal protection of the laws.

i. Slaves are persons, and all persons born or naturalized in the US are citizens

ii. Bill of rights has been applied to the states now

b. (2) Representatives apportioned among the several states to their respective numbers

c. (5) Congress shall have the power to enforce (by legislation) provisions.

15. Right to vote (regardless of race, color or previous condition of servitude)

16. Allows for personal income taxes

17. Direct (popular) election of senators

18. Prohibition

19. Women’s suffrage/right to vote

20. Terms of President and VP

21. Repeal of prohibition

22. FDR’s amendment – term limits of President (no more than 2 terms)

23. District constituting the seat of Government (District of Columbia) given representation, but never more than least populated state in country.

24. Prohibition of poll taxes

25. President succession of president dies or resigns (VP takes over)

26. 18 and older given right to vote

27. (Proposed by Madison, but not passed until 1992) – Congress can’t vote themselves salary increases that take effect until the next election cycle.

Brief History of the Constitution and its Interpretation

Declaration of Independence

Articles of Confederation (1777)

Constitutional Convention (1787)

i. Discussed reforming the Articles of Confederation

Constitution ratified (1787)

i. Supporters: Federalists (Federalist papers)

ii. Opponents: Antifederalists (wanted a Bill of Rights)

George Washington inaugurated 1789

Bill of Rights introduced 1789

History: The Constitution’s Functions

Constitution enumerates basic values – regular elections, separation of powers, individual rights, equality, and makes change or departure very difficult (tyranny cannot overrule or change via statute)

Constitution also binds future generations – but also is unifying, increases the legitimacy of government and its actions.


Constitution divides power vertically between the federal and state governments.

Supremacy Clause

State and local laws are preempted by federal law when conflict.

Dormant Commerce Clause

Limits t

b. You would not say “the people” if only intended the militia.

c. “Right of the people” – always refers to individual rights in constitution.

d. “Keep” means to have and “bear” means to carry.

e. History – people have been able to have guns, not unlimited or absolute.

iii. Holding: There is an individual right to bear arms (not limited to militia)

1. The right is not unlimited – but can’t have bans on common weapons for individuals

2. There is no test or standard to determine what is ok

a. Handgun ban and trigger lock requirement violates the 2nd amendment

b. Other similar ordinances would also violate – but bans on dangerous military weapons are probably ok

c. There are federal statutes (ban guns in airports, schools and government buildings) that are fine

3. The Court affirmed the judgment of the Court of Appeals. Assuming respondent was not disqualified from exercising Second Amendment rights, the Court held that the District must permit respondent to register his handgun and must issue him a license to carry it in his home.

Limits on Judicial Power:

Justiciability Doctrines: Created through judicial interpretation of Article III

i. Standing

ii. Ripeness

iii. Mootness

iv. Political Question Doctrine

Congress: Can limit federal court jurisdiction

Congressional Limitations:

Article I, § 8, cl. 9: Congress has power to “constitute tribunals inferior to the Supreme Court:

Article III, § 1: Vests the federal judicial power in “one Supreme Court, and in such inferior courts as the congress may from time to time ordain and establish”.

Article III, § 2: Gives the Supreme Court “appellate jurisdiction, both as to law and fact, w/ such exceptions, and under such regulations as the congress shall make.”

Congress limits power over the courts

i. Regulating subjects that the courts can hear – when congress passes statutes and defines the subject matter of what is federal, then exercising some control

ii. Congress establishes the lower federal courts – district courts, circuit courts, etc.

iii. Article 3, Sec. 2 – distinguishes between the court’s jurisdiction in original and appellate cases (in all cases affecting ambassadors or when the state is a party, etc.)

1. Congress cannot expand original jurisdiction, but they can expand appellate jurisdiction

2. Hypo: Who creates district courts? Congress. It would be constitutional for congress to pass a law saying that the SC does not have jurisdiction over any state or fed law relating to school busing

3. Hypo: USSC shall not have jurisdiction over religion/school issues and public religious displays. This is direct regulation of the USSC, does the court have original jurisdiction over this? No, they come up on appeal.

a. Congress can make exceptions/regulations regarding the USSC appellate jurisdiction

b. Congress prob does NOT have the power to regulate what the USSC can review

Court has jurisdiction over cases arising under federal law, but can pass statutes to make that type of case “arise under federal law”.

i. Congress can pass specific statutes for types of cases; b/c doesn’t say that they only have jurisdiction over specific types of cases. (Not unconstitutional to do this)

Ex Parte McCardle: Congress has the power to limit the appellate jurisdiction of the USSC.

i. Jurisdiction of the USSC is conferred from the Constitution, not derived from Congress.

ii. However, Congress has the power to make exceptions and limitations to appellate jurisdiction.

1. Acts of Congress providing for federal jurisdiction are generally acts granting jurisdiction. They imply the negation of all such jurisdiction not provided for.

2. The Act in this case is an exception, in that it is an appeal of previously granted appellate jurisdiction.

3. The power of Congress to do this is expressly granted in the Constitution