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

Constitutional Law Outline – Spring 2018 – Bill Marshall

Judicial Power

I. Judicial Power

Article III:

Authorizes a federal court system, giving federal courts judicial power over all “cases and controversies:”

Arising under the Constitution, laws, or treaties of the US;
Of admiralty and maritime jurisdiction;
In which the US is a party;
Between two or more states;
Between a state and citizens of another state;
Between citizens of different states;
Between citizens claiming lands under grants of different states; and
Between a state or citizens and foreign states or citizens.

Constitutional Origins – Constitution does not discuss whether the federal judiciary should have the power of judicial review – Constitutionality of acts of other branches of government.
Original Jurisdiction

Both federal and executive legislative acts (Marbury)
Cases affecting ambassadors and other public ministers/consuls
Cases with a state as a party

Appellate Jurisdiction

State court decisions with questions of federal law

Supremacy Clause

Cases where a state is a party (Cohens)
Appellate Jurisdiction is derived from Congress’ grant of authority.

Congress can limit SC’s appellate jurisdiction with regulations

Marbury v Madison (1803)

John Adams appointed justices of the peace before Jefferson took office, but a few commissions were not delivered before the switch. Marbury filed suit seeking a writ of mandamus to compel James Madison, Jefferson’s secretary of state, to deliver his commission.
SC has authority for judicial review of both federal executive and legislative acts.
It is the “province and duty of the judicial department to say what the law is.”
If there is a conflict between a constitutional provision and a congressional statute, SC has the authority and duty to declare the statute unconstitutional and refuse to enforce it.
Marbury had a right to the commission and his right was violated and the law affords him a remedy. BUT SC does not have original jurisdiction to issue a writ of mandamus to the secretary of state.

Judiciary Act of 1789 giving SC this power is unconstitutional – This would be an expansion of the original jurisdiction of the SC – Congress cannot do this. SC must uphold the Constitution and strike this law down

Martin v Hunter’s Leesee

Established SC’s authority to review state court judgments

State’s agreed to limitations on their sovereignty by ratifying the Constitution.
Need for uniformity across the nation in interpretations of the Constitution.

Limited to decisions based on federal law – SC can review under appellate jurisdiction

Cannot review is there is an independent and adequate state grounds for the State Court’s decisions

Cohens v Virginia

Reaffirmed SC’s authority to review state court judgments, including criminal cases and cases where a state government is a party.

II. Limits on Federal Judicial Power

Constitutional Limits

Congress cannot restrict nor enlarge the original jurisdiction of the SC granted by Article III, §2.
11th Amendment – bars a federal court from hearing certain cases by a private party or a foreign government’s claims against a state government.
Amendments to the Constitution can change Judicial Power

Congressional Statutes

SC review is limited to decisions of the highest state court available
Congress can decide what lower federal courts there should be and what cases they may hear
Congress can impeach a SC justice

Justiciability Limits – refers to a series of judicially created doctrines that limit the types of matters that federal courts can decide.

Political Questions:

Those issues committed by the Constitution to another branch of government; or
Those inherently incapable of resolution and enforcement by the judicial process.

Originalism – the court is justified in protecting constitutional rights only if they are clearly stated in the text of the Constitution or intended by the framers.

The Constitution should evolve only by amendment

Non-Originalists – it is desirable for the SC to have substantial discretion in determining the meaning of the Constitution

It is important that the Constitution can evolve by interpretation and not only by amendment
It is permissible for the court to interpret the constitution to protect rights that are not expressly stated or clearly intended

Judicial Review

Checks on Judicial Review

A case must be brought to their jurisdiction
Dependent on Executive Branch for enforcing their decisions
Court must explain their decisions

Executive and Legislative branches do not

Court must work within the bounds of legal reasoning


Check on the majority
Trained legal expertise
Long term perspective
Distribution of power
Strive for impartiality


Bench legislation
Anti-majoritarian argument
Difficult to overturn court decisions
Political actions
Bad decisions

Standing – person must show a stake in the outcome. Derived from “cases and controversies”

Rightness – is the case sufficiently right to be challenged?
Mootness – is the case sufficiently over?
Injury – is there a sufficient injury to be able to exercise the jurisdiction of the courts?

DC v Heller (2008)

DC law prevented a police officer from getting a registration for a handgun.
Scalia/Holding – DC’s prohibition on the possession of handguns was a violation of the second amendment

The right of the people to keep and bear arms shall not be infringed

Stevens Dissent – second amendment should not be interpreted as limiting the authority of Congress to regulate the use or possession of firearms for purely civilian purposes.

“The People” is being interpreted to apply to more people than the phase applies to in other areas of the text

Breyer’s Dissent – the protection of the second amendment is not absolute

The amendment permits the government to regulate the interests that it serves – to find the law unconstitutional would be to find the government’s regulation unreasonable.

Federal Legislative Power – Congress

I. Federal Legislative Power


The federal government has limited, enumerated powers – mostly listed under Article I, §8:

Lay and collect taxes;
Provide for the defense of the country;
Borrow money on the credit of the US;
Regulate commerce with foreign nations; and among the several states;
Regulate immigration and bankruptcy;
Establish post offices;
Control the issuance of patents and copyrights;
Declare war;
Pass all laws need to govern DC and federal military enclaves (bases); and
Make all laws which shall be necessary and proper (N&P)

Congress may only act if there is express or implied authority in the Constitution, while states may act unless the Constitution prohibits the actions

Doctrine of Implied Powers – Federal Government may validly exercise power that is ancillary to one of the enumerated powers, so long as this ancillary power doesn’t conflict with specific constitutional prohibitions

II. Necessary and Proper Clause

Congress has the power to “make all laws necessary and proper for carrying into execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States.”
Supremacy Clause:

The power of the federal government is superior to the states – when the states ratified the constitution, they gave up autonomy/sovereignty

N&P Clause:

Interpreted by McCulloch v Maryland as a grant of power to Congress, not a limitation.

Not an independent power – merely gives Congress power to execute other specifically granted powers.
Expanded by Comstock


Broad definition of Necessary – All means that are appropriate, which are plainly adapted to that end. As long as the means is rationally related to a constitutionally-specified object, the means is also constitutional (McCulloch, reaffirmed by Comstock)

Necessary doesn’t mean absolutely necessary
MARSHALL: necessary = “convenient, useful or desirable” and n

Acts, implicitly, as a limitation on state legislative power.

Commerce = all things that, taken in the aggregate, affect interstate commerce
Test for commerce power:

Activity being regulated substantially affects commerce (Darby), and

Cannot regulate inaction – cannot use the commerce power to compel individuals to become active in commerce (Sebellius)
Regulating activities that are essentially non-commercial is likely to be overturned if there is not an obvious connection to interstate commerce (Lopez, Morrison)

The means chosen by Congress is reasonably related to Congress’ objective in regulating.

Congress’ motive is irrelevant (Darby, Heart of Atlanta). Congress can regulate for other reasons, as long as they are able to do so under the Commerce Clause

“Among the states”

Includes purely intrastate activity that is not itself commercial if Congress concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.(Wickard, Gonzales)
Many others similarly situated

Deference to Congress? How Much?

Yes – Wickard, Katzenbach, Darby, Hodel v Indiana
No – Lopez, Morrison

Categories of activities which Congress can regulate under the Commerce Clause:

Channels – the channels of interstate commerce

E.g. hotels in Heart of Atlanta

Instrumentalities – people machines and other things used to carry out commerce

E.g. intrastate railroads in Shreveport Rate Cases (didn’t read them)

Articles moving in interstate commerce

Includes information (Reno v Condon)
Doesn’t matter whether the activity being regulated occurs before, during or after the interstate movement (NLRB v Jones & Laughlin Steel)

“Substantially Affecting Commerce” (NLRB v Jones & Laughlin Steel)

Activity itself is arguably commercial
If not inherently commercial: (Must be substantial – court applies BITE)

there must be a pretty obvious connection between the activity and interstate commerce. (SC overturns laws in Lopez & Morrison); or
it must be Broad Regulation of a Commercial Activity

Gonzales v Raich – When Congress is engaged in broad regulation of a commercial activity, SC allows Congress to regulate purely non-commercial and intrastate instances of that activity, if it reasonably believes that failure to regulate these instances would jeopardize the success of the overall regulatory scheme.

If the regulation is traditionally within the domain of the states, the court is less likely to find that Congress was within its commerce power (Morrison)

Eras of Commerce Clause Jurisprudence:

Beginning – 1890s: Commerce Power was broadly defined but minimally used

Gibbons v Ogden, US v DeWitt, EC Knight

1890s – 1937: SC narrowly defined the scope of Congress’s commerce power and used the 10th amendment as an independent limit on Congressional Authority

First time the SC aggressively used its power to invalidate federal and state laws
Court was full of Conservation justices promulgating laissez faire economics.
Dual Federalism