Select Page

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

Gerhardt- Constitutional Law, Spring 2014



· Actual words written

Original Meaning

· What the framers and/or ratifiers of the Constitution thought or intended the language to mean?

· What did they think about the scope of Congress’ power?

· NOTE: for formalists, text and original meaning are the same thing


· The actual design of the Constitution and the government

· Look at the relationship between the federal government and state governments

· Look at the Constitution like a blueprint for building the government


· National identity; what does it mean to be an American?

· Is the law paternalistic?

Moral Reasoning

· What is the ethical or morally reasonable construction of the Constitution?

· How does justice work here?

· What does ‘freedom’ entail?

Historical Practices

· What has the government done in the past?

· Has Congress passed other laws like this?

· What has been the Congressional understand of this subject matter?

· How has the government understood and exercised its power in the past?


· What are the constitutional consequences of this act?

· What would happen if it were to be upheld or struck down?


· Creates national government and separates power

o Article I: creates legislative power; vests power in Congress

o Article II: creates executive power; vests power in the POTUS

o Article III: creates judicial power; vests power in the SCOTUS and inferior courts as created by Congress

o Checks and balances:

§ Lessens the possibility of tyranny

· Divides power between the federal and state governments

o Federalism: terms to describe this division

§ 10th Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

§ Article IV (supremacy clause): “Constitution and the Laws of the United States which shall be made in pursuance thereof, and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the Land.”

§ Limits the ability of states to impose burdens on other states

· Protects individual liberties

o Examples:

§ Bill of Rights

§ Article I §§9, 10: no ex post facto laws or bills of attainder

§ Article III §2: right to a jury trial for crimes (except for impeachment in state where crime occurred)

§ Article IV: Privileges and Immunities Clause

o Absence of more explicit or elaborate statement about individual rights attributed to fact that framers felt that limitations in power of federal government protected individuals enough; enumerating too many rights may cause rights not enumerated to be left out

§ 9th Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

o Important to note:

§ Originally: protection of individual liberties only extends to government; not private conduct

· Modern view: most of the Bill of Rights apply to states (Due Process Clause of 14th Amendment)

§ 13th Amendment (regarding slavery and involuntary servitude prohibitions) is the only amendment to directly protect individuals from private conduct


Rational Basis Test (RBT):

· Very clear standard of review

· Most deferential standard of review

· “…means reasonably adapted to the attainment of the permitted end…”

o ‘Reasonably adapted:’ court will always use this standard for ruling on constitutionality of legislations addressing private economic activity (does not strike down any legislation from 1937-1995)

o All that is required is for the Court to identify any reasonable fit between the means the ends for a law

· Doesn’t require an inquiry into purpose or motive

· Applied for the Darbyà Gonzalez line of cases

· Instead of using a rule (formalist- flat, rigid, absolute principle) uses a standard (functionalist- sets out criteria that must be fulfilled)

o Standard: As long as the activity is economic, then that activity clearly falls under Congress’ right to regulate under the Interstate Commerce Clause

· If you are the government, you always want to get RBT

· If you are not the government, you want a tougher standard of review in challenging a law

Intermediate Scrutiny (IS)

· Midlevel range of review


Implied Fundamental Rights

What are the fundamental rights SCOTUS has recognized? This is the full list

1) Marriage between man and woman (Loving, Turner) (Loving is in EP section)

2) Contraception (Griswold)

3) Right against forced sterilization/procreation (Skinner, Eisenstadt)

4) Right to send children to private school (Pierce)

5) Right to abortion before viability (Casey)

6) Right to teach your children a foreign language (Meyer)

7) Right to family arrangements (Moore)

8) Right to homosexual sodomy (Lawrence)??


Article III: creates judicial power; vests power in the SCOTUS and inferior courts as created by Congress; federal judges have life tenure; salaries cannot be decreased during time in office

· Chemerinsky big question: are state courts equal to federal courts in ability/willingness to uphold the law?

o Subject to electoral review (in 42 states)

o Thus, federal courts better suited to uphold federal laws

· Article III §2 provisions:

o Federal courts authorized to enforce federal government powers

§ All cases in which the U.S. is a party

§ All cases arising under the Constitution

§ All cases involving ambassadors and public ministers

§ Admiralty and maritime law

§ Cases between a state and its citizens

§ Foreign country and citizens

o Federal courts resolve disputes between states and citizens of states and two or more states

o SCOTUS original jurisdiction cases:

§ Ambassadors

§ Public ministers/consuls

§ State is a party

o SCOTUS appellate jurisdiction cases all else

o Trial of all crimes (except for impeachment) by jury in state where crime occurred

o Treason only exists “levying war” against U.S. or assisting enemies