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Constitutional Law I
University of North Carolina School of Law
Marshall, William P.

Bill Marshall

Con Law

UNC Spring 2015

Ø 3 Branches of Government: Legislative, Executive, and Judicial

o Article I creates the Legislative Branch

o Article II creates the Executive Branch

o Article III creates the Judicial Branch


§ Originalism – courts confine themselves to enforcing norms that are stated or clearly implicit in the written text of the Constitution

o Constrains the power of unelected judges

§ Nonoriginalism – courts go beyond the set of references and enforce norms of constitution because they could not be known at the time of creation of the constitution

o Allows the Constitution to evolve by interpretation

o Difficult to determine the framers intent



I. The Federalist System

a. Federalist System: national government and state governments co-exist

b. You always have to watch whether some power being asserted by the feds is allowed by the Const, and you must watch whether some power asserted by the states is limited in favor of federal system

II. Federal Govt. Has Limited Powers

a. Fed govt. has limited, enumerated powers; i.e., the branches can only assert powers specifically granted to them by the Const

b. So if Congress passes a statute, or the PR issues an Executive Order, or fed cts decide a case, we must ask what specified power in the US Const gives that fed branch that right?

c. States can do whatever they want as long as the US Const does not forbid it

d. Feds Have No General Police Power

i. Each state has police powers for the general welfare of the citizens

ii. The feds have no right to regulate for health, safety, or general welfare, but it rather must come in one of the enumerated powers (e.g., the Commerce Clause or the Taxing and Spending Power)

III. Necessary and Proper Clause

a. Congress has the power to “make all laws which shall be necessary and proper for carrying into execution” the enumerated powers

b. N&PC means that if Congress is seeking an objective that is within the enumerated powers, then Congress can use any means that is:

i. Rationally related to the objective Congress is trying to achieve; and

ii. Not specifically forbidden by the Const

IV. Federal Government Constitutional Limits

a. Even if it appears to fall within a specific grant of power, federal action may not violate some other specific CL guarantee

b. I.e., Congressional (or federal) action must satisfy two tests to be CL:

i. It must fall within some specific grant of power under the Const; and

ii. It must not violate any specific CL provision


Powers of the Three Federal Branches

I. Powers of Congress

a. Interstate Commerce: can regulate IS, foreign, and sometimes intrastate commerce

b. Taxing and Spending

c. Washington, DC

d. Federal Property

e. War and Defense: Congress can declare war, and can fund the armed forces

f. Enforcement of the Post-Civil War Amendments: 13th, 14th, etc.; can even ban private intrastate non-commercial conduct

II. Powers of the Executive

a. Execution of Laws: makes sure the legislature’s laws are “faithfully executed”

b. Commander in Chief: CIC of the armed forces; directs and leads the armed forces

c. Treaty and Foreign Affairs: PR can

i. Make treaties with foreign nations w/ 2/3 Senate approval

ii. Appoint ambassadors

iii. Control foreign policy (implied from a need for one national voice)

d. Appointment of Federal Officers: can appoint cabinet members, federal judges, and ambassadors

i. As far as “inferior officers,” it is to the discretion of Congress whether these should be appointed by the PR, judiciary, or heads of departments (cabinet members); Note: Congress cannot appoint themselves, but can decide who can appoint

e. Pardons: can pardon for federal offenses, but cannot pardon for impeachment or the convicted

f. Veto: PR may veto any law passed by both houses, though this can be overridden by a 2/3 majority of each house; Note (not on exam): if PR doesn’t veto a bill within 10 days it becomes law, unless Congress has adjourned by the 10th day – pocket veto

III. Judiciary

a. The federal judiciary may decide cases or controversies that fall within federal judicial power



I. Three Standards: there are 3 key standards of review when reviewing government action:

a. Rational Basis: easiest to satisfy of the three; the governmental action will be upheld if:

i. Legitimate State Objective: very broad; practically any type of health, safety, or general welfare goal will be found to be legitimate

ii. Rational Relationship: minimal rational relationship between the legitimate state objective and the means chosen by the govt.; only if the govt. has been completely “arbitrary and irrational will this not be found


1. Substantive Due Process: as long as no Fm right is affected; if the state is pursuing a legitimate objective and using means that are rationally related to that objective, the state will not be found to have violated the SDPC

a. The vast bulk of economic regulations will then be tested by RB and will usually be upheld

2. Equal Protection: we will use RB so long as: (1) No Suspect or Quasi-Suspect Classification is Being Used and (2) No Fundamental Right is Being Impaired

a. However, RB will be used in EP for:

i. Economic regulations

ii. Some classifications based on alienage

iii. Rights that are not Fm, but are still important, such as food, housing, and public education

b. Intermediate Scrutiny: heightened from rational, not as rigid as strict

i. Important Objective: halfway between legitimate and compelling

ii. Substantially Related Means: means must be “substantially related” to the important govt. objective


1. EP/Semi-Suspect: IS will be used for an EP claim (must be substantially related to achieve an important governmental interest) for:

a. Gender Discrimination

b. Illegitimacy

2. Contracts Clause: obligation of Ks Clause

c. Strict Scrutiny: hardest to satisfy; standard will be satisfied if the govt. shows a:

i. Compelling Objective

ii. Narrowly Tailored Means: the means must be narrowly tailored to meet the compelling governmental interest; must be a tight fit


1. Substantive Due Process/Fm Rights: where a govt. action affects Fm rights where the P claims his SDP rights are being violated, the court will use SS; this would apply to Fm rights of privacy, such as marriage, child-bearing, controlling offspring, contraceptives, abortion, family relations, etc.

2. Equal Protection Review: SS is used to review a violation of EP rights if the classification relates either to:

a. Suspect Classification: race, national origin, and usually alienage

b. Fundamental Rights: right to

he court decide the merits of the dispute or issues

i. Constitutional Standing Requirements:

1. Personal Injury: ∏ must allege they have suffered an injury

2. Causation: ∏ must allege the injury is traceable to the ∆s conduct

3. Redressability: ∏ must allege that a favorable federal decision is likely to redress the injury

ii. Prudential Standing Requirements: May be expressly negated by congress

1. Third Party Standing: Allowed in limited circumstances (Craig v. Boren- alcohol law discrimination) more likely to be recognized the closer the relationship and interest in the matter. Is there a hindrance of the rightsholders own rights.

2. Generalized Grievances: Generally not allowed, however, has been allowed limited related to paying taxes.

3. Suits Outside A Laws Zone Of Interest: The matter must be within the zone of interest that the they are suing for.

iii. Why Limit Standing?

1. Promote separation of powers by restricting the availability of judicial review

2. Serves judicial efficiency by preventing a flood of lawsuits by those who have only an ideological stake in the outcome

3. Improve judicial decision making by ensuring that there is a specific controversy before the court

4. Serves fairness by ensuring that people will raise only their own rights and concerns

e. POLITICAL QUESTION DOCTRINE: Subject matter that the Court deems to be inappropriate for judicial review and should be left to the politically accountable branches of government

i. Baker Test:

1. Express commitment to other branch

2. Contrary Axion by another branch—Due respect to other branches.

3. Lack of discernible Criteria for Court to Use

4. Potential embarrassment from diff rulings of diff branches. (respect for other branches).

5. Impossibility of deciding without an initial policy determination which is not the right role for the judiciary.

6. On some things you want finality and no judicial review. (i.e.) impeachment.

ii. Justifications

1. avoid controversial constitutional questions and limit courts role in democratic society

2. allocates decisions to the branches of government that have superior expertise

3. self-interest disqualifies them from ruling on certain matters

4. separation of powers

iii. Criticisms

1. judicial role is to enforce the Constitution

2. no evidence that particular ruling have any effect on the judiciary’s legitimacy

iv. Baker v. Carr Pg. 56

1. The fact that a suit seeks protection of a political right does not mean it necessarily presents a political question

2. Court laid out a test involving the 6 steps above

3. None of those 6 characteristics are present

4. The justiciability of the equal protection claim is not outweighed by the non-justiciability of the Guaranty Clause