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Constitutional Law I
University of North Carolina School of Law
Gerhardt, Michael J.

– Constitutional Law –
Constitution – Supreme law of the land…contains phrases that don’t have everyday meaning
·    Constitution à Defines the relationship among the branches of government w/each other… Also defines the relationship b/w the government & you
Constitutional Law – What the Supreme Court says the Constitution means
·    May not be law of the same order/kind as the Constitution
·    What’s the legal significance of what the Court/President says about the Constitution?
Ways to Study the Constitution:
            1) Text – Reading the plain text
a) Intratextualism – Using other parts of the constitution to limit/clarify
b) Expressiounious – that which it doesn’t express, it excludes
            2) Judicial Precedent – scope of authority. What has SCt said about it?
2) History –
a)      Originalism – Figure out what the ratifiers thought that the words they chose meant
b)      Historical practices – Figure out the meaning of words in practice/what Senate did in past
            3) Structure – Look to the design of the constitution. Ex. Checks and Balances.
            4) Moral Reasoning – More like tradition argument, however provides a basis to move away
from the text (since morals are presumed to change according to society’s values) –
Worldview argument)
            5) Consequences – Repercussions of the interpretations of decisions.
            6) Ethos – Notion of justice and ethics, of nation’s identity, spirit of the law.
Ø Federalism – Co-existence of state & fed govts
Ø Dual Sovereignty – 2 diff governmental authorities
Ø Commerce Clause – Art I, §8, Clause 3 of Const – Empowers Congress “to regulate Commerce w/foreign Nations, and among the several States, and w/the Indian Tribes.”
Ø Due Process Clause – “No State shall … deprive any person of life, liberty, or property, without due process of law….”
Ø Equal Protection Clause – “No state shall… deny to any person within its jurisdiction the equal protection of the laws.”
Ø §5, Amendment 14 – “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”
Counter-Majoritarian Difficulty: -majority (legislature) passes laws and the court, who has life tenure, oppose majority when they strike down laws. It’s really hard to undo what the court has done (amendment, overturn themselves or via Pres appointment)
The Nature & Sources of the Supreme Court Authority
I.       Judicial Review – Power of the courts to decide questions of constitutional law…and particularly review the constitutionality of actions taken by other branches. Established by Marbury v Madison.
A.    Danger – Potential for tyranny by unelected judges; uncertainty of laws when passed by Congress; unresponsiveness of lifetime appointed judges; frustrates will of majority; encourages Congress to pass laws it knows will be shot down.
B.     Advantages – Check on tyranny of majority; part of checks & balances; gives dignity, coherence, and cohesion to Const; Const becomes frame of reference.
C.    Cases:
i.        Marbury v. Madison – Right to Judicial Review
a.       Established authority for the judiciary to review the constitutionality of executive & legislative acts
b.      There must be a LEGAL right for a LEGAL remedy – there was no legal right to ct appt here.
c.       Political Questions: Courts do not have authority over political issues (like appts)
d.      Problems:
i          Courts not democratic because have life tenure
ii        Unelected courts can strike down laws that democratically elected officials decided
ii.      Martin v. Hunter’s Lessee–SCt has juris. over state court decisions that involve federal law.
a.       Virginia thought they didn’t have to follow federal (appellate) court ruling (SCt ruled otherwise)
b.      Dual sovereignty issue (state v fed)
c.       Appellate power given for reason (in Const) Const created SCt, Congress given power to create lower cts. If not lower courts established, SCt powerless to hear any cases via expressed appellate jurisdiction.
d.      Why does SCt have this power?
i          Structure of Const, State judges not independent, No Political Bias in Fed (appt), Uniformity of Federal Law, Finality (a FINAL decision), Federal Expertise in Federal Law, Protect against state discrimination against non-citizens. 
iii.    Cooper v Aaron 1958 – SCt entitled to last word/final say of Const meaning. All bound by decision.
iv.    Cohens v. Virginia – Sup Ct can exercise JR over state criminal judgments
II.    Checks on the Court
A.    Amendment – Very little you can do to overturn what Ct says about Const. Hard – Ex 11, 13-15 (dredd scott) congress can’t just pass legislation to change court ruling – must be amended.
B.     Impeachment – Not really useful in getting rid of judges; Doesn’t really correct mistakes.
i.        Treason, bribery, other high crimes and misdemeanors. Technical: political crimes (crimes against republic) Not just felony/something you’d go to jail for.
ii.      Judicial Independence: (judges protected from making biased/bad opinions) Removal is not one of the ways to remove party-biased judge.
iii.    If in majority “5” – majority opinion – no reason for impeachment. Even less if dissent because even more evidence you were not coerced.
C.     Regulating Jurisdiction – Congress can regulate juris. of fed cts and # of justices and funding
D.    Nominating Justices – Appt people who think differently to change direction of court. Have to wait for vacancy. Might be the easiest way to change. (Still, courts should be “not politically motivated”)
E.     Ct won’t decide constitutional questions if possible
F.      Counter-Majoritarian Difficulty – Problem of unelected judiciary making unprincipled interference by unelected judges w/the democratic decisions of elected officials.
i.        Solutions: — minimize amount of Const interpretation to minimize # times wrong. Limited Jurisdiction of Courts helps.
a.       Original Meaning of constitution (however, no consensus. Ruled by “dead hand of past”)
i          Again, see textual argument – if don’t limit to text, gets crazy, no point to Const.
b.      Passive Virtues: Judicial Restraint which cultivates other branches function.
i          Standing doctrine: controls who may bring an action in fed ct. (just know it exists)
ii        Political question: deals with what kind of question may a fed ct decide.
iii      Mootness/Ripeness: deals with timing of a lawsuit.
(a)    Mootness: relates to timing – issues already resolved by time come before a ct. Too late.
1.      Ex. Affirmative actions in admission – by time it reaches SCt already in grad school.
(b)   Ripeness: filed too early. Issue hasn’t ripened, interest at stake hasn’t truly been put into contest. It needs to evolve into a real controversy before can be heard.
1.      Ex. Can a wife sue for right to abort before pregnant? No.
National Powers & Local Activities
Articles I & II – Affirmative powers of the fed govt
10th Amend – Undelegated powers are “reserved to the States…or to the people” (hard to interpret)
Doctrine of Limited Fed Legislative Authority – Congress may act only if there is express or implied authority to act in the Const… States, however, may act unless the Const prohibits the action.
Federalism – Allocation of power b/w fed & state govs often is an express consideration for SCt as it decides whether to narrowly construe congress’ authority VS finding fed laws unconst as infringing state sovereignty.
I.       Scope of Congressional Powers
A.    Necessary and Proper Clause  – in Article 1 = broad powers of Congress
i.        “Make all the laws necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution”
ii.      Default Rule: all ambiguities in favor of US (fed gov) Authority from people of US not people from each US state. Congress may choose any means NOT prohibited by Const to carry out express authority.
iii.    How to Interpret Congressional Powers:
a.      Historical Practices – 1st national bank constitutional, why not 2nd?
b.      Text/Constitutional Structure
i          Difference between Articles of Confed and Constition (i.e. Implied Powers)
(a)   Express Powers – those enumerated
(b)   Implied Powers – To Practically Function
ii        Placement of Clause in Question (here, N&P) within Constitution – whether in the limiting government powers section or the expanding powers section. N&P in Art 1 = broad powers.
iii      Amendments
iv      Nature of Constitution – how to read it.
v        Ordinary meaning of “necessary”
c.       Consequences
i          Limit: Must be a legitimate end within scope of Constitution via appropriate means (like SS?)
ii        Limit: checks and balances (courts to strike down anything congress doesn’t have power to do)
iv.    Case: McCullough v Maryland – Federal Bank does not have to pay State Tax
i          Based Upon Historical Practices, Art 1 broad powers and interpreting Const, N&P Clause
ii        Problems: Presidents not bound by what SCt says, Const structured in a way that SCt can interpret it but other branches can disagree

ass laws requiring or prohibiting certain acts, it lacks the power to directly compel the states to require or prohibit those acts.
i.        Fed. Regulation of private economic activity (like Gibbons). Just basic people.
a.       Gibbons v Ogden = fed>state, NY’s monopoly impermissible restrict on interstate commerce
i          Afterward laissez-faire economics public view prevalent and limited Congressional Power
ii        10th Amend used to reserve state rights – but state rep in political process is limit of Cong power
b.      Dagenhart – (overruled) States have sole right to regulate production (limited Congress Power) – involved the Child Labor Case (Congress couldn’t reg. against child labor bc prod under states)
c.       *United States v. Darby – Fair Labor Standards Act of 1938 upheld. See SUPER
i          Ct rejected view that production was left entirely up to states.
ii        Congress may control production by regulating shipments in IC.
iii      Expressly overruled Dagenhart and rejected view that 10th Amend limits Congress’ powers
iv      A law is constitutional so long as it is w/in the scope of Congress’ power
d.      Wickard v. Filburn – Upheld application of fed law that didn’t allow farmer to eat his own produce to ensure minimal price for wheat (because trying to establish a national market)
i          Rejected Formal Tests: No longer distinctions crucial as b/w commerce & production and b/w direct & indirect effects on commerce
e.       Heart of Atlanta v Katzenbach – 60’s, civil rights activists based rights in commerce clause (because if discrimination aggravated, can have a substantial impact on commerce)
ii.      Fed. Regulation of state (public) economic activity (yes, commerce clause can limit gov stuff)
a.       Case—Gibbons v Ogden Formal Tests (all ruled arbitrary w/ever nationalizing country/tech, etc)
(a)    National v Local
(b)   Direct v Indirect
(c)    Stream of Commerce v Not in Stream of Commerce (manufacturing)
b.      Maryland v Wirtz – If states have a problem with a fed law, their recourse is political (via leg process, not courts – see McCullough “rep=reinforcement” States rep’d in Senate). Fed Labor Stds case mandating o-time, min wage, etc.
c.       NLC v Usery – OVERRULED Maryland v Wirtz. Per Blackmun: Const protects state sovereignty.
i          4 part balancing test: to protect states as states (limits of CC).  (this was OVERRULED)
(a)    Does statute reg states as states?
(b)   Must address attribute assets indisputable as states
(c)    State compliance w/fed obligation must directly impair state’s ability to structure integral ops in areas of traditional gov functions.
(d)   Relation of state and fed interests must not be such that the nature of fed interest justifies state submission.
ii. See super analysis
d.      Garcia v San Antonio Metro – overruled NLC. Per Blackmun: Says balancing test too subjective and had all the flaws of a formalistic approach. The principle protection of state’s interest, therefore, is just that – the state’s interest (federalism – the way democratic process set up – the poli process)
i          Dissent: Rehnquist. 1. Democratic process to protect state’s interest doesn’t work as intended, when Congress members come to Washington they think like fed officials, not state officials. 2. 17th amendment (Senators voted on by people of state, not leg of state = less state influence) 3. See Power’s dissent – super analysis (ct could define parameters of 10th amend.)
e.       NY v US –can’t mandate a state to adopt/execute something it doesn’t want to (see SUPER)