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Constitutional Law I
University of South Carolina School of Law
Brown, Josie F.

I.  Authority for Judicial Review
A.  The judiciary has the authority to review the constitutionality of executive and legislative acts
            1.  Executive Actions
a. Discretionary executive actions are not able to be judicially reviewed, only
    ministerial, where the action is directed by law
b. Statutory vesting of discretion is not reviewable
            2.  Constitution is silent on the issue
            3.  Marbury v Madison (1803):
                        a. While Marbury lost, the court declared that the Judiciary Act of 1789 was
c. Established the principal that federal courts are courts of limited jurisdiction
    and Congress may not expand the jurisdiction granted in Article III of the
d. Rule: The Supreme Court can declare federal laws unconstitutional.
II. Interpreting the Constitution
            A.  Originalism- the view that “judges deciding constitutional issues should confine themselves to
       enforcing norms that are stated or clearly implicit in the written constitution.”
            1.  Recognition of unenumerated rights:
a. believe that the Court should find a right to exist in Constitution only if it is
    expressly stated in the test or was clearly intended by its farmer
                        b. f the C in silent, then it is for the legislature, unconstrained by the courts to
    decide the law
2.  Interpreting meaning –
            a. use the meaning of words at the time the C was written
3.  Amendment is the only legitimate means for constitutional evolution
            B. Nonoriginalism – the “view that courts should go beyond that set of references and enforce
     norms that cannot be discovered within the four corners of the document.”
            1. Recognition of unenumerated rights:
a. Believe that is okay for the Court to interpret the C to protect rights that are
    not expressly stated or clearly intended
                        2. Interpreting meaning –
            a. meaning is not limited to what the framers experienced or intended
3. The meaning and application of constitutional provisions should evolve by interpretation
            C.  What to consider in interpreting the C?
                        1.  Text
                        2.  History
                        3.  Precedent
            D.  District of Columbia v Heller – Interprets the 2nd Amendment
                        1. Issue:  Whether a prohibition of the possession of usable handguns in the home
    violates the 2nd Amendment?
2.  In interpreting the 2nd Amendment, there are two opposing views presented:
            a. Majority (Scalia) – the 2nd A protects an individual right to possess a firearm
     unconnected with service in a militia, and to use that arm for traditionally lawful
purposes, such as self-defense in the home
b. Dissenting – 2nd A protects only the right to possess and carry a firearm in
    connection with militia service
                        3.  Interpretation of 2nd A by Scalia:
                                    “A well regulated militia, being necessary to the security of a free State,
the right of the people to keep and bear Arms, shall not be infringed.”
a. Textual analysis – Scalia breaks the 2nd A into an operative clause and
     prefatory clause and analyzes the meaning of each portion of the text
·         Operative Clause tells what must be done (the right of the people to keep and bear Arms, shall not be infringed)
·         prefatory clause gives the purpose (a well-reg militia, being necessary to the security of a free state)
                                                i. “Right of the People” To interpret meaning of “right of the people” he
    looks at other places that the phrase is used in the C, and finds that it is
    used to refer to all members of the political community, not an     
    unspecified subset
ii. “Keep and bear Arms”
                        (a)  uses 18th century dictionaries to find meaning of “arms”
                        (b)  points out that not just type of arms in existence in 18th C are
            iii. looks for use of “keep arms” in written docs at time it was written
     and for signs of idiomatic meanings, finds that generally used in
     reference to an individual right unconnected w/ militia service
                                    b. Combines textual analysis to conclude that the 2nd A guarantees the individual
     right to possess and carry weapons in case of confrontation
c. Also relies on history to support the conclusion
d. Checks to see if the preface fits with the operative clause and concludes that
     based on history of the founding generation, and that its purpose is to prevent
     elimination of the militia
e. Also compares it to other state constitutions drafted around the same time and
    found that they secured an individual right to bear arms for defensive purposes
f. Looked at interpretations from after its ratification through the end of 19th C
g. Checks to make sure there are no precedents that would prevent the
    conclusion that the 2nd A guarantees an individual right
                        4.  Scalia says that the right secured by the 2nd A is not unlimited
                        5.  Holding:  The band on handgun possession violates the 2nd A
I.  The Federal Legislative Power (Article 1)
Questions to ask:  Does Congress have the power? What is the source of the power? 
                              Does the law violate another provision or doctrine? Has Congress acted appropriately?
A.  Necessary and Proper Clause –  (Article 1, § 8)
1.  Congress has the power to make laws necessary and proper for executing any  power   
                   granted to any branch of federal gov’t
            2.  McCulloch v. MD (1819) – results a broad view of the N&P clause, still applied today
3.  US v. Comstock- modern interpretation of N&P clause- The issue is whether a statute can   
    be upheld that allows for the fed’l gov’t to order the civil commitment of a mentally ill
    and dangerous federal prisoner beyond the date he is supposed to be held.
a. The enumerated power is the commerce clause- to create the fed’l criminal   
            b. The N&P clause allows for :
i. creation and operation of fed’l prisons, and
ii. in dealing with the prisoners, the fed’l gov’t acquires duties from the knowledge they gain from holding the prisoners
iii. this allows the enactment of procedures to block the release of prisoners
                                    c. The statute properly accounts for state interests, since states can assume the
     custody of the  individual
d. Reaffirms McCulloch v. MD
B. The Commerce Clause
            1.  Defining Commerce
                        a. Includes all activity affecting 2 or more states
            b. Incl

Congress to abrogate State Sovereign Immunity (11th A) if a state violates the   
            a. This would allow a private citizen to sue the state
4. Under § 5 of the 14th A, Congress may independently interpret the Constitution and even   
     overturn the Supreme Court.
            a. Katzenbach v Morgan – Constitutionality of § 4(e) of the Voting Rights Act,
which provides that no person who has complete 6th grade in a Puerto Rican  school, where instruction was in Spanish, shall be denied the right to vote because of failing an English literacy test.
i. This overturned part of the ruling from Lassiter v Northampton Election
   Bd, in which the Court upheld the constitutionality of English literacy
ii. Approved for 2 reasons: (1) Congress could concluded that granting
Puerto Ricans the right to vote was remedy for discrimination and (2)   Congress could find the literacy test denied equal protection, which would provide Congress the independently determine the meaning of the 14th A.
      STATUTE  (Abrogation is based on 14th  Amendment)
1.  Explicitly abrogate state immunity in statute
2.  Identify constitutional violation (Boerne test)
                                    a. What level of scrutiny is demanded for the targeted groups?
§  If it’s a rational basis- is there a pattern of discrimination that is invidious and not rational?
§  Sliding scale as per Rehnquist in Hibbs:  the higher the level of scrutiny, the lower the demand on Congress to provide evidence of pervasive, consistent pattern of uncon behavior.
                                    b. Is the action one that is prohibited based on SCOTUS constitutional
                                    c.  Is there a history of unconstitutional discrimination of the groups
3. Congruence and Proportionality test to determine if it reaches beyond the scope of § 1 of
     Article 14
                                    a. Nature and duration of responsive action must be scaled to the violation and
    calculated to correct it
                        4.  Note:  13, 14 and 15th A allow abrogation of SI
5. Cases where the Court found the law to be an invalid exercise of Congress’s § 5 powers
     and precluded  the suit against the state government:
(a) Kimel v Florida Board of Regents- age discrimination – rational basis
            i. alleged that university’s failure to provide promised pay adjustments
    discriminated against older workers and violated the ADEA
ii. The ADEA is an express authorization of suit against the states
iii. Must be evaluate under Rational Basis and there is a lack of evidence of
     widespread and uncon age discrimination by states.