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Constitutional Law I
University of North Carolina School of Law
Nichol, Gene R.

Constitutional Law—the constitution creates a national government and divides power among three branches. Article I creates the legislative power and vests it in Congress.
Article II places the executive power in the president of the United States. Article III provides that the judicial power of the United States shall be in the Supreme Court and such inferior courts as Congress creates.
The Constitution divides power vertically between the federal and state governments “federalism”. Federalism limits the ability of states to impose burdens on each other.
The Constitution protects individual liberties.
Interpreting the Constitution
The need for interpretation
An outline- John Marshall “ the Constitution was not meant to have the prolixity of a legal code” but “its nature requires that only its great outlines should be marked, its important objects designated…We must never forget that it is a constitution we are expounding…A constitution intended to endure for aged to come and to be adapted to the various crises of human affairs.”
Open-textured language- free speech, commerce clause
Regulating fundamental rights
Originalism v. Non-originalism
                                                              i.      Judges deciding constitutional issues should confine themselves to enforcing norms that are stated or clearly implicit in the written Constitution.
                                                            ii.      A right exists only if expressly stated or clearly intended.
                                                          iii.      The Constitution should evolve only by amendment.
                                                          iv.      Abortion- wrong of ct to strike down state law prohibiting contraceptives and abortion. Constitution is silent- leave to legislature.
                                                              i.      It is permissible for the Court to interpret the Constitution to protect rights that are not expressly stated or clearly intended.
                                                            ii.      The meaning and interpretation of the Constitution should evolve by interpretation, including norms and values not intended.
                                                          iii.      Abortion- appropriate for ct to decide “liberty” includes a right to privacy and reproductive freedom is essential to privacy.
Methods of Interpretation
Historical arguments
Social costs
Level of scrutiny
I. The Federal Judicial Power- Article III creates the federal judiciary and defined its powers.
            A. Authority for Judicial Review
1.      Marbury v. Madison: Article III never expressly grants the federal courts the power to review the constitutionality of federal or state laws or executive actions. Marbury established the power of the Supreme Court to review the constitutionality of federal statutes and executive actions.
a.       The Court may review executive conduct when law assigns a specific duty, and individual rights depend upon the performance of that duty. Congress cannot expand the original jurisdiction of the Supreme Court. “The Constitution is law and it is the province and duty of the judiciary to declare what the law is.”
b.      Constitution is regulatory
c.       Ct may review executive and legislative conduct.
d.      Congress cannot increase jurisdiction of federal courts. John Marshall- “Article III enumerated original jurisdiction would be a mere surplusage if Congress could add more areas of original jurisdiction.”
2.      US v. Emerson: A federal statute making it illegal to possess a firearm while under a restraining order violated the Second Amendment right of individuals to bear arms.
a.       Ct- A historical examination of the right to bear arms bears proof that the right to bear arms has consistently been construed as an individual right.
b.      Rebut- History of right to bear arms is disputed. Framers only sought to make sure that Congress could not prevent state governments from protecting themselves.
3.      John Jay: Allowing unelected to judges to review legislative acts subverts the purpose of the Constitution.
4.      Martin v. Hunter’s Lessee: firmly established the constitutional basis for judicial review. Martin claimed right to land under treaty. Hunter claims that Virginia took land before treaty. Virginia CoA ruled in favor of the state’s authority to have taken and disposed of the land. Supreme Ct held that the federal statute was controlling but Virginia court declared that SC lacked authority to review state decisions.
a.       The Constitution presumed that the SC could review state court decisions. If Congress did not create any lower courts, the SC would be powerless. The Supremacy Clause grants a final Supreme arbiter of State laws.
b.      The Constitution is based on recognition that state prejudices and interests might obstruct or control the administration of justice.
c.       The Supreme Court may review decisions of state courts to establish uniform interpretation of federal laws and achieve substantial justice.
d.      The Supreme Court has the authority to review State acts. The people chose to limit State power by authorizing the Constitution.
B. The Political Question Doctrine: although the Constitution permits federal court adjudication, the Court has decided that in certain instances wise policy opposes judicial review. Political questions are: (i) Those issues committed by the Constitution to another branch of government. (ii) Those inherently incapable of resolution and enforcement by the judicial process. Constitutional interpretation in these areas should be left to the politically accountable branches of government, Congress and the President.
1.      Baker v. Carr: The equal protection clause (14th Am) assertion in the malapportionment claim does not require decision of any political question.
a. The Guaranty Clause calls for Congress, not the courts, to determine the type of government that is established in a given state.
b. The Constitution did not delegate decisions about the Equal Protection Clause to another branch of government.
2.      Elements of Political Question
a. Constitutional commitment of the issue to a political dept.
b. Lack of judicially discoverable and manageable standards for resolving the issue.
c. Impossibility of deciding w/o policy determination
d. Impossibility of a court’s resolution w/o disrespecting other government branches.
e. Unusual need for adherence to a political decision already made.
f. Potentiality of embarrassment from various decisions by various departments on one question.

cution any power granted to any branch of the federal government.
4. McCulloch v. Maryland (state taxes federal bank): The government of the Union, though limited in its powers, is supreme within its sphere of action. The Constitution and the laws made in pursuance thereof are supreme and cannot be controlled by the laws of the respective states.
a. Expansive interpretation of delegated powers.
                                                                                            i.      Historical practice established the power of Congress.
                                                                                          ii.      The people are sovereign, not the states. The Constitution is not a compact of the states.
                                                                                        iii.      Broad scope of congressional powers. Power not enumerated- constitution is an outline (Marshall, above)
b. “Necessary” means useful or desirable, not indispensable essential. Placed in Article I Section 8, which expands powers. Terms of N/P Clause purport to enlarge, not diminish.
Rebut- Clause is a limit on Congress’s powers, allowing Congress to adopt only the laws which are truly
Marshall on Necessary and Proper Clause: “Let the ends be legitimate, let it be w/I the scope of the constitution, and all means which are appropriate, which are adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”
Congress can make laws N&P to enum pwrs & have choice among the means BUT must be w/i “spirit of Constitution.”
Criticisms of Political Question
1. Inappropriate to leave constitutional question to political branches of govt.
2. Ct should not be concerned w/ political legitimacy.
3. Where Ct lacks expertise it should be more deferential. But deference does not mean abdication.
Political Questions:
Republican form of govt
Electoral process
Foreign affairs
Congressional regulation of its internal affairs
Ratifying amendments
Impeachment process.
Justiciability Doctrines: Policy Issues
1. Separation of powers
2. Conserve resources
3. Provide concrete controversies well suited for judicial resolution.
4. Promote fairness- prevent ct from litigating rights of those not parties to suit.
No advisory opinions!
Congress has a lot of latitude for achieving a valid end, BUT it cannot create a nonproportionate or incongruent response to either an existing or nonexistent problem.
Federal courts have limited jurisdiction-
-Cases & controversies
– Subject matter juris
-Justiciability doctrines