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Constitutional Law I
University of North Carolina School of Law
Boger, John Charles


a. Text of constitution
b. Intent of framers
c. Tradition (congressional/executive action)—structure of government
d. Precedent
e. Treaties, international law
f. Unwritten rights of people
g. Social policy
h. Morality and justice
i. President’s discretion (exigencies)

a. Federalists v. Antifederalists—the federalists wanted a central government to help to pay the war debts incurred during the revolutionary war and there was no provision under the Articles of Confederation to allow the new country to raise revenue. The antifederalists opposed any central government because it resembled the monarchy in England that we had just fought to get away from. They believed in civic virtue of people and that they would put government before their own needs.
i. Federalist #10—danger of factions and how to remove the danger from factions. Was against blocking the cause of factions because that would take away liberty. Could block effects by having a larger, heterogeneous government.
ii. Federalist #51—danger from above was from government. Could keep in check by the principles of:
1. separation of powers—separate the sovereign power into different branches to prevent power from being concentrated. Each branch would by loyal to its own and prevent corruption.
2. checks and balances—separate branches had some powers on their own, but larger issues had to be passed through more than one branch to keep check on any one branch and preventing one from becoming too powerful.
b. Marbury v. Madison—Chief Justice Marshall raised and addressed three questions:
i. Does Marbury have a right to the commission? Yes, it was approved by Congress and signed, sealed by executive.
ii. Do the laws of the US afford him a remedy? Yes, no one, even the president is above the law (this was not an immunity issue). Also established the power of the judiciary to review executive actions for constitutionality.
iii. Can the Supreme Court issue the remedy? Authority was claimed to be in the Judiciary Act, but this in conflict with Art. III, §2-2? Claimed that SC had appellate jurisdiction but statute granted original jurisdiction which was against constitution. Established that laws of Congress are subject to check by SC for constitutionality (as well as over executive). Established horizontal supremecy.
c. Martin v. Hunter’s Lessee—dispute over land that led to the establishment that SC could bind states with their rulings. VA claimed that they were sovereign, SC rejected argument and said that it had appellate jurisdiction .
d. Cohens v. Virginia—Reaffirm that SC can hear and decide cases in which a state is a party. Can declare state laws unconstitutional, but state’s interpretation of their own laws is final.
e. Cooper v. Aaron—follow-up to Brown v. Board of Education that held that rulings were binding on the states under Art. IV.
f. McCullough v. Maryland—dispute over Bank of US. Established several victories for federalists (power to incorporate a bank, no taxation by states on bank, Congress has implied powers, 10th amendment did not apply, people have authority (federal), SC can interpret implied powers and necessary and proper, Congress has wide latitude in determining this standard)
g. Calder v. Bull—Justice Chase’s conception of some natural rights vs. Justice Iredell’s idea that rights could change so we should stick to constitution.
h. Ex Parte McCardle—Habeus corpus act allowed people to challenge their confinement directly to federal judiciary. Congress repealed the act while McCardle’s case was pending, fearing for reconstruction acts in the south. SC held that the grant of jurisdiction was given by Congress and could be removed by Congress (also, there was another way to get to federal judiciary—this was crucial in the decision in Yeger where there was no other way).
i. United States v. Klein—courts had held that if granted a presidential pardon then presumption that no

iations—NAACP or NRA can litigate on behalf of injured members
2. No generalized grievances—no citizen or taxpayer standing
e. Political Question—may not be justiciable because it involves a political question.
i. Electoral Process—Baker v. Carr—TN voting rights challenge (gerrymandering) that Brennan describes the characteristics that make something non-justiciable
1. Constitutional provision that assigns responsibility to another branch of government
2. lack of judiciary ability to develop a standard for resolution that others can follow
3. if decision involves a policy decision (subjective determination)
4. if decision would violate separation of powers
ii. Gerrymandering—Veith v. Jubelirer—rejection of Justice’s White’s test in Davis v. Bandemer for determining gerrymandering claims. Kennedy points out that some day they may find something that will work, so don’t foreclose all cases.
iii. Impeachment—Nixon v. United States—judge convicted of making false statements to jury—court holds that impeachment is assigned to Congress—judicial branch can’t be trusted to police themselves.
iv. Regulation of Congress—Powell v. McCormick—refusal to seat congressman because of low moral character—if meet all criteria for election then cannot refuse them
v. Foreign Policy—Goldwater v. Carter—dispute over treaty made by president—held this was not a decision that court could make.
vi. Bush v. Gore—decision to stop recount—many justiciability issues raised—standing, injury, federal question, political in nature?
vii. Sovereign Immunity—something that president has a right to do.