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

I.       Constitutional Structure
1.      Article I – Congressional Powers
2.      Article II – Executive Powers
3.      Article III – Judicial Powers
4.      Article IV – Full Faith and Credit, Privileges and Immunities, State Regs
5.      Article V – Amendment Procedures
6.      Article VI –
7.      Article VII –
8.      Amendment I – Freedom of Religion
9.      Amendment II – Right to Bear Arms
10.  Amendment III – No soldiers living in your house
11.  Amendment IV – Freedom from search and seizure
12.  Amendment V – Freedom from self-incrimination; due process clause
13.  Amendment VI – Right to a speedy trial
14.  Amendment VII – Right to a trial by jury
15.  Amendment VIII – Freedom from excessive bail/cruel and unusual punishment
16.  Amendment IX – Enumeration is not conclusive
17.  Amendment X – Powers not delegated to federal govt. are reserved by the states
18.  Amendment XI – States cannot be made to pay damages
19.  Amendment XII – Electoral reform
20.  Amendment XIII – Slavery is abolished
21.  Amendment XIV – Privileges or Immunities, Due Process, Equal Protection
22.  Amendment XV – Right to vote regardless of race
II.    Modes of Constitutional Analysis
A.    Text – what does the Constitution say?
1.      Plain meaning
2.      Intra-textualism – using one part of the Constitution to clarify another part
3.      Expressio unius – if it’s not written into the Constitution, it was meant to be excluded. If there is a list of things and you’re not part of that list, you’re excluded.
B.     Judicial Precedent – what has the U.S. Supreme Court said about it?
C.    Structure – draw inferences from its design like an architectural plan.
1.      Separation of powers
2.      Checks and balances
D.    Consequences – what are the consequences of a particular decision?
1.      Would they be good for the United States?
E.     History – what was going on at the time this document was created?
1.      Original Meaning – what was the original intent of the creators and what did they intend for the text to mean?
a)      Some believe this is the only thing that matters. (Formalists)
b)      Some believe the creators are dead, so it doesn’t matter what they thought. What should matter is what we think. (Functionalists)
2.      Historical Practices – how has the government acted in accordance with the Constitution in the past? (more of a Functionalist approach)
F.     Moral Reasoning embedded in the Constitution
1.      Decisions have moral implications.
2.      This provides a basis to defend your move away from the text.
3.      The text doesn’t tell you how to interpret it.
G.    Ethos
1.      the notion that the spirit of the law or national identity is most important.
2.      What does it mean to be America?
3.      What does it mean to have a Constitution like ours?
4.      In America, how do we behave as a result of being who we are and having the Constitution that we have?
III. Definitions
Formalism – the basic notion that there is a specific rule we can devise that will solve the problem. We will have a formal test. The more rigid that test is, the better. People need rules. No balancing tests, no discretion. E.g., Black, Scalia
Functionalism – an attempt to balance competing considerations, including historical practices. Believe formalism does not adequately address reality. E.g., Jackson, Harlan
Jurisdiction – a fundamental concept that has to do with the power of the courts. The courts have some powers inherently, and some because Congress passes a statute pursuant to its authority, so Congress regulates the jurisdiction or powers of the courts. These cases deal with the jurisdiction of the courts, as well as the interaction of the courts with the presidency and other authorities.
Executive Order – a directive or order that is issued by the President. They may be issued consistently with statutes passed by Congress, or not. An executive order oftentimes will be issued pursuant to the President’s inherent authority, statutes, or treaties. It is understood to apply to the domain of executive authority. Designed to organize things within the domain of the executive branch.
Within the executive domain is the Department of Defense. It operates under the control and supervision of the President of the United States, squarely in the executive branch.
Procedural Due Process – a notion that typically has to do with courts (although not restricted to courts). It has to do with the basic procedures that might be required by due process (5th and 14th amendments) that pertain to certain conditions or circumstances. What is the process/procedures that might be required by due process?
Habeas Corpus – a kind of procedure; petition requesting a very important piece of paper. The notion has to do with something that is older than the Constitution – the ability of someone who is incarcerated to challenge the conditions of his confinement. It arises at the end of a process – it is not the beginning of the process. It arises when you have gone through all the other possibilities that might or might not be available, to challenge or raise questions about the legality of your incarceration.
HC arises typically when someone is prosecuted or charged with having to do a crime. That person is typically brought before a court, they might have a trial, and then they are found guilty and thrown in jail. They might bring a challenge to the conviction and have appeals. When those appeals are over, that’s typically when the person will say, “there is still a problem with my confinement.” All the ways in which appeals occur are fairly restricted. Appeals are governed by statutes that tell you how you can appeal. The presumption here is that you lose every single one of these. At the end of all that, the detainee still feels there is a problem with his confinement. That is habeas corpus, essentially saying there is still a basic problem with the confinement, something that the courts or other authorities have not adequately dealt with.
Enemy combatant – someone who is captured, that you suspect is fighting against you, and doesn’t fit into the typical notion of Prisoner of War. In prior wars, you were fighting against people who wore uniforms, from different countries, whose objective is to kill you. But after 9/11, the people you are fighting against don’t all wear uniforms, and they are not technically fighting for countries. You’re unsure of the status of this person.
–          Designating someone an enemy combatant makes them not controlled by any other law or treaty (because you only make treaties with other countries). This provides a legal advantage to designating someone an enemy combatant. You don’t have to follow the traditional procedures or Geneva Conventions with enemy combatants
–          There is a historical background to the term – it came out of WWII.
–          It became more widely used following 9/11 because the people on the other side weren’t necessarily fighting for a country.
–          You can hold an enemy combatant in captivity as long as the conflict lasts.
Facial Challenge – a challenge to how a law reads on its face. You can hypothesize circumstances when it would be enforced or applied unconstitutionally and therefore illegally.
As Applied Challenge – addresses how a particular law is enforced. As applied challenges are not hypothetical and are grounded in a specific method of enforcement.
Rational Basis Test – law must have a rational relation to a legitimate government interest. Burden of proof on challenger instead of state; presumption of constitutionality.
Intermediate Scrutiny – law must have s substantial relationship to a legitimate government interest. Burden on State; presumption of unconstitutionality. (Overturns laws 66% of the time)
Strict Scrutiny – law must be narrowly tailored to meet a compelling governmental interest. Burden on State; presumption of unconstitutionality.
IV. Important

f the commerce clause; returned the limit to the political process)
Griswold v. Connecticut (rational continuum)
Justice Brennan (1956-1990)
Major Opinions:
Dissent in Michael H. v. Gerald D. (relying on traditions does not allow countermajoritarian rights to be protected)
Justice White (1958-1991)
Quintessential Functionalist
Major Opinions:
Dissent in INS v. Chadha (making legislation cumbersome makes no sense)
Dissent in Bowsher v. Synar (Congress’s power of removal of the executive officer is “practically impossible” to achieve)
Chief Justice Burger (1969-1986)
Major Opinions:
Bowsher v. Synar (Congress may not delegate executive power to itself)
U.S. v. Nixon (recognized executive privilege as an inherent presidential power)
Justice Blackmun (1970-1994)
Recommended for the Court by Burger; wasn’t talking to Burger when he left.
Major Opinions:
Roe v. Wade (majority)
Planned Parenthood v. Casey (concurrence in part and dissent in part)
Garcia v. San Antonio Metropolitan Transit Authority (overruled NLC)
Justice Rehnquist (1972-2005)
Hates balancing tests, which involve subjective determinations of weight to different factors, i.e. too much judicial discretion.
Major Opinions:
National League of Cities v. Usery (established limits on federal authority to regulate “states as states”)
Morrison v. Olson (allowed appointment of an “inferior officer” outside of executive control)
Justice O’Connor (1981-2006)
Graduated third in her class at Stanford, not offered any jobs
Major Opinions:
Planned Parenthood v. Casey (undue burden test – intermediate scrutiny)
Dissent in Michael H. v. Gerald D. (finding Scalia’s tradition test subjective)
Justice Scalia (1986-present)
Formalist; believes in the power of rules.
Wants the Court to restrict itself to interpreting the text and majoritarian traditions.
Major Opinions:
Gonzales v. Raich (commerce clause; “comprehensive regulatory scheme”)
Printz v. United States (anti-commandeering handgun regulation)
Dissent in Clinton v. New York (president was executing bill as it was written)
Dissent in Morrison v. Olson
Dissent in Planned Parenthood v. Casey
Michael H. v. Gerald D. (Footnote 6 creates a test for looking at traditions)
Dissent in Lawrence v. Texas
Justice Kennedy (1988-present)
Major Opinions:
Lawrence v. Texas
Justice Ginsburg (1993-present)
Graduated first in her class at Columbia, and was not offered a job.
Judge Learned Hand denied her a job because the language in his office got salty
Major Opinions:
U.S. v. Virginia (advocating treating women exactly the same as men)
Justice Souter (1990-present)
Was viewed as not sufficiently well-known when he was nominated by G.H.W. Bush
“Stealth” nominee who could have turned out to have strong views
Did confirmation hearings without notes; remarkably eloquent and articulate
Replaced Brennan, and was effusive in his praise for Brennan.
Major Opinions:
Planned Parenthood v. Casey (
Chief Justice Roberts (2005-present)
Cases he wants to overturn:
Garcia v. San Antonio Metropolitan Transit Authority