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

Con Law Outline
Spring 2011
I.                    Intro
a.       Purpose of Con law
                                          i.      Protect important values of the US
II.                  Judicial Review – the foundational principle of con law
a.       Marbury v Madison- “province and duty of the judicial department to say what the law is”
                                          i.      Established the authority of the judiciary to review the constitutionality of executive and judicial acts
                                        ii.      Madison does not deliver the commission that would make Marbury a justice of the peace. Marbury sues to compel delivery.
                                      iii.      Issues:
1.      Does Marbury have the right to the Commission?
a.       Yes, the president has the right to appoint, it is a vested right which may not have vested yet
2.      Is there a remedy for Marbury?
a.       Yes if there is a remedy then there is a right on things that are of a duty of the president. Not when a political matter or when its discretionary.
3.      Can the SC issue this remedy?
a.       Yes because this was a duty of the president’s to act or refrain from act and so the judiciary can provide a remedy.
4.      Is there jurisdiction?
a.       No, Constitution only allows original J for ambassadors, public ministers, consuls, and when the state is involved. Thus expanding this power is unconstitutional (Judic ACT a1789). Madison is not a public minister.
                                      iv.      Marshall’s reasons for JR
1.      Limits on government powers must be enforced or else they are meaningless.
2.      Inherently the role of judiciary to declare laws unconstitutional
3.      Text of the constitution says that court looks there to enforce, so they cannot enforce an unconstitutional law.
                                        v.      Issues with JR
1.      Hard to enforce against the fed government
2.      Also an unelected judiciary analyzing the decisions of elected officials
b.      Congressional Limits on JR
                                          i.      Ex Parte McCardle was imprisoned by a military government imposed by Congress as part of post-Civil War Reconstruction. He brought a habeas corpus action in federal court saying the Reconstruction Acts were unconstitutional. While case was being argued congress took away habeas J
                                        ii.      Held: Congress’s restriction of the Court’s jurisdiction because the appellate jurisdiction of the Supreme Court was conferred by Congress with exceptions—this was one of them. Court concluded that it had no jurisdiction to decide this case, but it still could have through writ of cert to hear habeas cases.
                                      iii.      US v Klein-
1.      President gave a pardon that said that people whose property was confiscated during the Civil War could get their property back by performing an oath of allegiance. But then Congress passed a law saying that the pardon was not a way to prove loyalty and saying the case shoul
2.      Held: Congress’s statute is unconstitutional bc it violated separation of powers and invaded judicial function. This ruling:
a.       recognizes and supports the fundamental value of separation of powers defined by the Constitution.
b.      means that Congress may not direct the outcome of a case by prescribing the rule of decision, nor may Congress impair the power and effect of a Presidential pardon.
c.       suggests, but does not state, that Congress may not use the Exceptions Clause to cripple the Court's ability to be the final arbiter of what the Constitution means.
                                      iv.      Shelden v Sill-
1.      Prior to ex parte mccardle, congress passed a stat disallowing creating diversity by selling off a loan, court said the stat was ok.
2.      Art 3 sets the outer limits of fed jurisdiction , and so congress can give as little or as much fed j as they want. They are not required to give the entirety of Art 3.  
III.            Jurisdiction of Fed Courts in Con cases
a.       Advisory opinions/ justiciability
                                          i.      Jefferson tried to get SC to issue advisory opinions
1.   Separation of power: courts need to stay out of the legislative process
2.      Judicial resources are conserved because a lot of requests may come up for advice
3.      Helps ensure that cases will be presented as specific disputes—not hypothetical legal questions  thus improving decision making
4.      Promote fairness
5.      Ensure the opinions have effect and are not able to be ignored thus hurting the credibility of the court
                                        ii.      Flast v Cohen- ensure that the SC only hears things that are related to cases and controversies
1.      Rule of no advisory opinions ensures separation of powers
b.      Standing- whether a person is the proper party to bring the suit to court.
                                         i.      Injury must be distinct and palable
                                        ii.      Causation- injury must be caused by action of def. Must be a link between illegal activity and injury
                                      iii.      Must show you would benefit from court’s ruling-sufficient likelihood of redressibility
                                      iv.      Warth v Sedlin- challenging the legality of various zoning measures in the city of Penfield that disallows low income people from living in town
1.      People suing have never resided in Penfield, and have not been personally injured. Generalized greivances are not allowed
2.      Court decided that there was no standing to sue.
3.      Failure to allege specific, concrete harmàno showing of redressability. There was no guarantee taxes would go down or the city would be better integrated or that the law caused them not to have housing in Penfield
                                        v.      Village of Arlington Heights v Metro Housing Dept- low income housing in Chicago, developers had a specific plan for low income housing that was rejected.
1.      Court held there was a sufficient probability that the guy could have lived in housing were it to be built. An actionable causal relationship was shown.
                                      vi.      Lujan v Defenders of Wildlife
1.      Ps challenge the new fed policy lessening the Environ protection for certain fed lands, members sued saying the mining would destroy the natural beauty.
2.      Court found they did not have standing in part because invalidating the behavior might not change the gov behavior, and also because there was not enough injury in fact- could not show that in the future they would be injured by destruction of an endangered species- no actual injury
3.      Tough to have a suit based on a generalized grievance
                                    vii.      Mass v EPA- suing to enforce green house gases emissions, on the injury of the damage it is doing to air quality. Tenuous causation link, but a notable return to the generalized grievance allowance.
1.      It might take a while for the remedy to be effective, but the majority didn’t find that to be dispositive
c.      Political Questions- is it committed to another branch of government that it would be inappropriate for us to hear it.
                                        i.      Baker v Carr- voters seek reapportionment of state legislature
1.    Can’t hear when there is a tex

legislated ferry boat activity. Ogden got his rights from NY, Gibbons fed.
                                        ii.      What does Commerce mean?
1.      Ogden said traffic, buying/ selling of commodities.
2.      Court disagreed and said it means the intercourse between states- all phases of business.
                                      iii.      What is among the states?
1.      Court finds it means among more states than one like here which will require case by case analysis about interstate effect of an activity.
                                      iv.      Does state sovereignty limit Congressional power?
1.      No, there are no limits on congress powers to regulate commerce among states. The only check is the political process.
2.      This is an exclusive place for fed gov to regulate
                                        v.      Wilson v Black bird creek marsh-US boat crashed through a DE dam on an interstate waterway. Here the court defers to the state’s police power for the public good since no fed stat was passed on the matter.
1.      This is not an exclusive power of congress when congress doesn’t act, states can. Court reads this as regulating health?
                                      vi.      Darby – if the transaction has some reasonable impact on interstate commerce, as in here with min wage requirements upheld by the court
                                  vii.      Wickert v. Philbin- guy growing wheat in the backyard tries to grow more than the quota. SC says no , there are still cuml IC aggregating effects.
1.      the complete surrender of any limitation on what congress may do under the guise of regulating interstate commerce.  Court has removed itself from interstate commerce second guessing. 
2.     Now the court does not ask indirect v direct
                                  viii.      Heart of Atlanta Motel v US 1964- motel that solicits patronage outside of the state refuses to let blacks stay. Court hears it on CC grounds
1.      Court looked at if there was a rational basis to see racial discrim affects commerce and if the means used to eliminate were reasonable and appropriate.
2.      They found this discrim was affecting IC hence congress has power here
                                      ix.      Katenbach v McClung –bbq restaurant that wont seat black- near a highway, 46% of food comes from outside of the state
1.      Court concluded that aggregating restaurant discrim had an effect on IC burdening travel and selling less interstate goods because of it.
2.      Now congress just needs a reasonable basis for thinking it effects IC. Nothing invalidated base on CC until Lopez.
                                        x.      Perez v US- congress passes a statute that made loan sharking illegal even just intrastate loans.
1.      Court says congress is allowed to regulate based on aggregate effects. Court said specific findings were not necessary to link IC w/ loan sharking as long as the court had a rational basis for coming to that conclusion.