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Construction Law
University of Mississippi School of Law
Cochran, George C.

Constitutional Law Outline
 
Cochran
 
TWO TYPES OF CASES THE COURT WILL NOT HEAR ARE-if there is a political question and when there is a question of enforceability.
 
Chapter 1-NATURE AND SOURCES OF SUPREME’S COURTS AUTHORITY
SECTION 1 JUDICIAL REVIEW, THE BASES AND IMPLICATIONS OF MARBURY V. MADISON
 
Marbury v., Madison, 5 U.S. (1 Cranch) 137 (1803),
1. This case established that:
a.       the Supreme Court was an equal branch of govt.
b.       the supreme court had the authority to interpret the constitution;
c.       the supreme court had the right of judicial review;
d.       the grant of judicial power extend to all cases arising under the Constitution and the laws of the United States;
2.       The Supremacy Clause (art. VI, sec. 2) declares that the Constitution and those acts of Congress “made in pursuance thereof” shall be the supreme law of the land, thus the Court must determine when such acts are actually made in pursuance of the Constitution.
3.       Writ of Mandamus- (def.) to force a govt employee to perform a governmental act.
 
Chapter 2- NATIONAL POWERS AND LOCAL ACTIVITIES, ORIGINS/THEMES
            SECTION 1- MCCULLOCH V MARYLAND
 
Note- Marshal said constitution is a “living document”, would disagree with today strict constructionist; would say each generation must define “cruel and unusual” to its own age
 
AT THE CONSTITUTIONAL CONGRESS, THE FRAMERS THOUGHT THE STATE LEGISLATURES WERE
1.       a problem for democracy
2.       letting farmers and lowlifes participate
3.       did not trust states in how the voting power would be used
 
ENUMERATED POWERS
McColloch v. Maryland, 4 wheat. (17 U.S.) 316, (p. 89)
1. This case established that:
2.        This is one of the most important cases ever:
it establishes the doctrine of implied powers,
it states emphatically the supremacy of the fed govt,
 a strict/literal reading of the enumerated powers doctrine would have crippled the govt,
it would have been in the same situation as with the Art. Of Confederation. But the issue of the supremacy of the fed govt was not finally settled til the bloody Civil War,
 it gives the Constitution the ability to endure for the ages, and consequently to be adapted for the various crises of human affairs
 
TWO LIMITS TO THE NECESSARY & PROPER CLAUSE
1. The political process
2. The pretext doctrine
 
Pretext Doctrine- What the law says is one thing, its purpose is another. Can we really look into the minds of lawmakers, or is this pure judicial arrogance?
 
BILL OF ATTAINDER- Article I Sec. 9(3), “no bill of attainder … shall be passed ”Bill of Attainder i

contains a requirement that the possession be connected in any way to interstate commerce. The Act exceeds the authority of Congress “to regulate commerce among the several states.
 
 Herr Rehnquist identifies three broad categories of activity that Congress may regulate under its commerce power:
1.       Congress may regulate the use of channels of interstate commerce, (Darby, Heart of Atlanta Hotels)
2.       Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities, (Shreveport rate case)
3.      Congress’ commerce authority includes the power to regulate those activities that have a substantial relation to interstate commerce, (Jones & Laughlin); those activities that substantially affect interstate commerce.
 
THE RIGHT TO BEAR ARMS AND THE 2ND AMENDMENT –“a well regulated militia, being necessary to the security; of a free state, the right of the people to bear arms shall not be infringed upon.