Constitutional Law Outline
Spring 2015 – Tepker
Federalism: term used to refer to the vertical division of authority between federal and state governments
· Supremacy Clause: which declares that the “Constitution and the Laws of the US which shall be made in Pursuance thereof, and all Treaties made, or which shall be made, under the Authority of the US, shall be the supreme Law of the Land
o Set up a hierarchical relationship between federal government and states
o State and local laws are deemed preempted if they conflict with federal law
· Federalism limits the ability of states to impose burdens on each other
Major function of the Constitution is to protect individual liberties.
· Few parts of the Constitution, apart from Bill of Rights, that pertain to individual rights
· Some believe framers thought it unnecessary to have an elaborate statement of individual rights because rights were adequately protected by the limitations on power of the national government and may have feared enumerating some rights would deny the existence of other liberties
· The Constitution’s protections of individual liberties applies only to the government; private conduct generally does not have to comply with the Constitution
A Constitution is Unique Because it is Difficult to Change
· Amendments: only two ways to amend
o Both houses of Congress, by two-thirds vote, propose amendment that becomes effective when ratified by three-fourths of the states (all done this way)
o Two-thirds of states call for Congress to convene a constitutional convention to propose amendments for states to consider. Would still require three-fourths approval for ratification
· A constitution represents an attempt by society to limit itself to protect the values it most cherishes
Brief History
· Declaration of Independence, authored by Thomas Jefferson, was signed in 1776
o Had no binding legal authority but rhetoric often used
· Articles of Confederation was the first constitution of the US, created weak national government, and had strong commitment to state sovereignty, no federal judiciary and no executive in it
o Many problems with it such as state laws discriminating against each other
· Constitutional Convention, met in Philadelphia, agreed on abandoning the Articles which was a questionable move
o Two competing plans for the new government
§ Virginia Plan: emphasized creating a national government with strong powers and the ability to regulate the conduct of individuals
§ New Jersey Plan: would have created a unicameral legislature in which all states had equal representation and would have established the Supreme Court as the only federal court
o Eventually came to compromise
§ Creating two houses in Congress, one with proportional representation based on population and one in which each state had equal representation.
§ Create Supreme Court as only federal court and allowing Congress to decide whether to create lower courts
· Ratification Process
o Antifederalists opposed ratification, emphasizing the powers of the new national government and its ability to regulate state governments to a secondary and unimportant role
o Most famous defense of the Constitution was the series of 85 essays wrote by Alexander Hamilton, James Madison, and John Jay called the Federalist Papers, these are regularly cited as evidencing the framers’ intent
§ James Madison Essay No. 10: it defines promise that the constitution is to promote stability and preserve the union, it’s a republic and not a democracy, argued for big republic rather than smaller republics
§ James Madison Essay No. 51: inform the reader of the safeguards in the constitution with auxiliary precautions such as the separation of powers
· Bill of Rights
o Antifederalists opposed the Constitution, in part, because it failed to enumerate individual rights
o Several states approved the Constitution, but with a request that the new government immediately create a bill of rights
o James Madison was originally opposed to a Bill of Rights but later was adamant about it to secure Anti-Federalist positions to secure passage of the Constitution
· Amendments
o It is through the 14th Amendment that the Bill of Rights has been applied to the states
How Should the Constitution be Interpreted?
· Debate Between Originalism and Nonoriginalism
o Originalism: or interpretivism is the view that “judges deciding constitutional issues should confine themselves to enforcing norms that are stated or clearly implicit in the written Constitution
§ Believe the Court should find a right to exist in the Constitution only if it is expressly stated in the text or was clearly intended by its framers
§ If the Constitution is silent, it is for the legislature, unconstrained by the courts, to decide
§ The meaning of a constitutional provision was set when it was adopted and that it can be changed solely by amendment
· Ex: wrong for Court to strike down state laws prohibiting the use of contraceptives and forbidding abortion because Constitution is silent about reproductive freedom
§ Strict originalists: the Court must follow the literal text and the specific intent of its drafter
· Ex: likely to believe the Court was wrong in ordering desegregation for public schools because the Congress that ratified the Fourteenth Amendment aslso approved the segregation of the DC public schools
§ Modern originalist: concerned with the adopters’ general purpose than with their intentions in a very precise sense
· Ex: likely would argue the Court was correct in ordering school desegregation because it advances the general purpose of the equal protection clause even if it does not follow the framers’ specific view
§ Scalia: different version of originalism, focuses on finding the “original meaning” of constitutional provisions through historical practices and understandings of the time, not the views of the documents’ drafters
o Basic Arguments for Originalism
§ The very nature of interpreting a document requires that its meaning be limited to its specific text and its framers’ intentions
§ Desirable to constrain the power of unelected judges in a democratic society
· Judicial review is a “deviant institution in American democracy” because it permits unelected judges to overturn the decisions of popularly accountable officials
o Nonoriginalism: or noninterpretivism is the “contrary view that courts should go beyond that set of references and enforce norms that cannot be discovered within the four corners of the document
§ Think it is permissible for the Court to interpret the Constitution to protect rights that are not expressly stated or clearly intended
§ Constitution meaning can evolved by amendment or interpretation
· Ex: believe it was appropriate
Bank of the United States as authority for the constitutionality for the second bank
§ He refuted the argument that states retain ultimate sovereignty because they ratified the Constitution (this view is sometimes called “compact federalism” and sees the state as sovereign because they created the US by ceding some power and by ratifying the Constitution)
§ Addresses the scope of congressional powers under Article I
· “In considering this question, then, we must never forget that it is a constitution we are expounding”
o the Constitution is different from a statute and therefore should be interpreted differently
o Congress not limited only to those acts specified in the Constitution; Congress may choose any means, not prohibited by the Constitution, to carry out its lawful authority
o If Congress was limited to the powers specifically enumerated in Article I, the range of laws would be finite
o If Congress can choose any means not prohibited by the Constitution to carry out its powers, it truly has an almost infinite range of options that can be enacted into law
o The Court adopted this expansive view even before it considered the “necessary and proper clause”
§ Meaning of the Necessary and Proper Clause: Article I § 8
· This provision makes clear that Congress may choose any means not prohibited by the Constitution to carry out its express authority
· “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional”
· Contrary vies is that the necessary and proper clause is a limit on Congress’s powers, allowing Congress to adopt only those laws which are truly necessary
· But necessary here means useful or desirable, not indispensible or essential
· Courts to this day still reinforce this, the relevant inquiry is simply “whether the means chosen are ‘reasonably adapted’ to the attainment of a legitimate end under the commerce power’ or under other powers that the Constitution grants Congress the ultimate authority to implement”
· The Constitutionality of Maryland’s Tax
o The state may not tax the Bank of the US because such exactions could greatly impede its operation and potentially even tax it out of existence
o Also noted that the state tax on the Bank of the US essentially was a state tax on those in other states
· McCulloch v. Maryland rejects “compact federalism” declaring that the federal government is supreme over the states and that the states have no authority to negate federal actions
· The Court limits the ability of states to interfere with federal activities
