TABLE OF CONTENTS:
Some Sweeping Statements
Historical Topics
1) Who formed the Constitution? The “people” or the states?
2) The Constitution over time
3) Slavery
4) The Constitution in “emergencies”
5) Equal protection of laws/Neutrality of law
6) Bill of Rights applicable to the states?
7) Indian jurisprudence
8) Women’s rights
9) Reconstruction
10) Progressive Era Amendments (16th, 17th, 18th, 19th)
11) The New Deal
Jurisprudential Topics
12) Federalism
13) Commerce Clause
14) Police Powers
15) Reconstruction Amendments (13th, 14th, 15th)
16) Spending power
17) Contracts Clause
18) 1st Amendment
19) Who are the Framers? Should they be privileged?
20) Questions of degree. “Train of horribles.” Can we draw a line somewhere?
21) Implied powers?
22) Inherent powers?
23) Necessary and Proper Clause
24) Judicial deference
25) Privileges and Immunities (Article IV)
26) Civil Liberties
27) “State action doctrine”
28) Congress’ power to regulate constitutional rights
29) Natural Law
30) Executive Power
31) Substantive Due Process
Relevant Constitutional Sections
SOME SWEEPING STATEMENTS:
1) Almost nothing a state does vis-à-vis its own citizens can be a constitutional violation prior to the Civil War.
a) Exceptions: impairing the obligation of contracts, ex post facto laws, bills of
attainder, maybe the dormant commerce clause
2) Three questions that answer most equal protection cases:
a) What’s the distinction being drawn? Why is person not being treated equally?
b) Why did the state do this? What is the legislative purpose behind the law?
c) Is that reason good enough? (this one gets pretty subjective)
3) Supreme Court does not get out-of-step with election returns very often and does not stay out-of-step for very long.
a) Court knows it might get smashed if it’s too out-of-step.
4) Progressive Era marks a quantitatively different burst of activity in national regulations.
a) Basically goes from McKinley’s assassination until WWI.
b) Really defines the split between the 19th and 20th century.
c) 20th century gives you an active federal government.
5) Abrupt break in constitutional law from the old Constitution to the modern Constitution
a) Two key questions:
6) What is the transformation?
7) Why did it occur?
6) The transformation involves the most fundamental constitutional issue: Congress’ ability to regulate the economy.
a) Darby and Wickard give Congress the ability to do anything with the economy.
i) Don’t find federal statutes violating the Commerce Clause anymore.
ii) Rehnquist Court (and a little before) tries to set some limits on
ble to today is
mind-boggling. But Madison is a genius when it comes to the late 18th century!
10) The reason we can regulate discrimination is due to the commerce clause, not the 14th Amendment; The Civil Rights Cases have never been overruled.
11) Hamilton was correct that the judiciary is the “least dangerous branch.” The issues of highest political salience do not go to the Court. Examples: North Korea selling nuclear weapons, Social Security, the national deficit, a flat tax, prescription drugs for seniors, etc. Unless you think abortion and affirmative action are the biggest issues facing the U.S., the Court is the smallest player in government.
12) The countermajoritarian difficulty doesn’t exist. With the exception of 1935-1936, the Court has never really consistently opposed the people or the other branches of government. Powe thinks the best way the Court can operate is to pile on against the outlying states when a majority of states have decided an issue. He thinks in most areas, this is also an accurate description of how the Court has operated.
