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

I.                   Overview- Modes/Sources of Constitutional Argument
The text
Precedent- what has the court said
History or Original Meaning- may lead to more than one meaning
Pragmatism- consequences
Moral Reasoning- ethical and moral arguments
Structure- formalists vs. functionalists, helps explain federalism and SOP
Ethos- national identity, spirit, no one is above the law
II.                The Supreme Court’s Authority and Role
The power of judicial review
Marbury v. Madison- Marshall finds that Marbury is entitled to the commission and the remedy is deserved, but the court cannot give the remedy because it lacks jurisdiction. The judiciary has the power to review and determine the constitutionality of legislative acts under judicial review. A legislative act repugnant to the Constitution is void. This case also draws a distinction between legal rights and political rights.     
Supreme Court authority to review state court judgments
Martin v. Hunter’s Lessee- The Supreme Court has the power to review state court decisions and its decisions are binding. There was the goal of uniformity present in this decision because if state courts have the final say, there could be 50 different interpretations of federal laws or even the Constitution. Also, state judges have more political ties. Federal judges are more likely to be experts on federal law and state judges are more likely to be experts on state law. Federal judges are immune to direct political influence.     
Judicial Exclusivity in constitutional interpretation
Cooper v. Aaron- State officials are to obey federal court orders resting on the Supreme Court’s interpretation of the Constitution. The interpretations of the Supreme Court are included in the supreme law of the land. 
Constitutional and prudential limits on constitutional adjudication: The “case or controversy” requirements
Advisory opinions
Political Question doctrine- The Supreme Court cannot hear political questions which are committed to the unreviewable discretion of another branch, or that are best left to another branch as a matter of prudence. 
Counter-majoritarian difficulty- This deals with courts interference with democratic branch’s decision making and is hard to undue because a statute could not be passed to overrule the Supreme Court because the court would knock it down. 
III.             The Nation and the States in the Federal System- basic relationship between the federal government and state governments
McCulloch v. Maryland- This is a case dealing with federalism and involved the constitutionality of the national bank. When MD was taxing the national bank it was affecting everyone and allowing MD to not have to be politically accountable to people in other states. The courts have to step in when they see a defect in the political process because the political process cannot fix itself. Congress has the power to charter a bank and the Constitution gives Congress implied powers for implementing the Constitution’s express powers. State action may not impede valid constitutional exercises of power by the federal government. 
IV.             The Commerce Power and its Federalism-Based Limits- Creating national regulatory power over interstate commerce was a major motivation for the framing of the Constitution in place of the Articles. The Commerce Clause has proved to be a central basis for the assertion of national regulatory authority. 
The Commerce Power before the New Deal
Gibbons v. Ogden- There is no more powerful source of authority for Congress than the interstate commerce clause. Commerce is intercourse between nations and parts of nations. “Among” means intermingled with; commerce that concerns more than one state. Power to regulate- prescribe the rule by which commerce is to be governed, the power is complete in itself (plenary). There is almost no conceivable boundary to this power. The limit is the political process. Any state law that conflicts with the federal interstate commerce clause is preempted. In Gibbons, the court held that navigation was intercourse and that government can regulate what affects the states generally, but not particularly. Completely internal commerce of a state is reserved to state regulation. 
·         Sugar Trust Case/Direct Effect Test- This was the first time that the Supreme Court interpreted the Sherman Antitrust Act. Manufacturing is not covered by the commerce clause. The court wants Congress only to regulate what directly affects commerce. 
·         Substantial Effects Test- Anything that has a substantial effect on interstate commerce can be regulated. 
·         Stream of Commerce- If a product is in the stream of commerce, it can be regulated. 
Judicial Limits on the Commerce Power
Hammer v. Dagenhart [The Child Labor Case]- The law in question excluded products of child labor from interstate commerce. Just because they were intended for interstate commerce transportation does not make their production subject to federal control. There is no power vested in Congress to require states to exercise their police power so as to prevent possible unfair competition. The necessary effect of the act is to regulate hours of child labor within the states, and the court saw this as purely a state authority. 
The Commerce Power and the New Deal
Non-delegation Doctrine- If Congress ever delegates its power, it has to provide to whomever it delegates some kind of intelligible principle to exercise its power (Schecter Poultry).   
The Commerce Power after the New Deal
NLRB v. Jones & Laughlin Steel Corp.- Whether an act affects commerce so closely as to be regulated by federal control is determined on an ad hoc basis. Even if intrastate in character, it can still be regulated if it has a close relation to interstate commerce and its control is essential. Experience shows that the right of employees to self-organization and representation is essential and affects interstate commerce directly.   
US v. Darby- The prohibition of the interstate shipment of goods produced under forbidden substandard labor conditions is within the constitutional authority of Congress. The power of Congress over interstate commerce extends to activities intrastate which have a substantial effect on commerce.  
Wickard v. Filburn- The farmer was growing wheat but did not want to put part of it on the market and was penalized for th

ation to the states
V.                Other National Powers: Taxing, Spending, War, Treaties, and Foreign Affairs- Congress can raise money in pretty much whatever manner it wants.
The Taxing Power as a Regulatory Device
Child Labor Case [Bailey v. Drexel]- If a tax penalizes, then it is not a tax. The court will strike down a tax if it claims to be a tax but is really something else (pretext). 
The Spending Power as a Regulatory Device
US v. Butler- The taxing and spending clause confers a separate and distinct power from those enumerated. The act in question authorized the Secretary of Agriculture to make contracts with farmers to reduce their productive acreage in exchange for benefit payments. The court held that the act invaded the reserved rights of the states. The attainment of a prohibited end may not be accomplished under the pretext of granted powers. The act was a scheme for federal regulation of a subject reserved to the states.  
South Dakota v. Dole- Congress may attach conditions on the receipt of federal funds. The spending power is limited by: (1) it must be in the pursuit of the general welfare, (2) condition for receipt must be unambiguous, (3) it must relate to the federal interest in particular national projects and programs (germaneness), and (4) other constitutional provisions may provide an independent bar.  
Woods v. Cloyd W. Miller Co.- Congress used the war power to regulate rents in the aftermath of WWII. The war power does not necessarily end with the cessation of hostilities. Since the war did much to cause the housing deficit, Congress can regulate the area even after cessation. The court recognized the potential for the abuse of the war power but believed Congress recognized its’ limits.     
Missouri v. Holland- This case regarded a treaty between the US and GB to protect migratory birds which had a great value as a source of food and in destroying insects. There is an expressed power to make treaties and treaties are the law of the land. If a treaty is valid, there can be no dispute about the validity of a statute enabling or aiding it. This involved a national interest which could only be protected by national action in concert with another power.  
·         Sample Exam Q- Congress gives lots of money to universities. One condition is that the law schools have to allow the military to interview prospective students. Is this a valid spending interest?
VI.             Federal Limits on State Regulation of Interstate Commerce
The Dormant Commerce Clause (DCC)- Congress is silent, it has