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Constitutional Law I
University of Toledo School of Law
Pursley, Garrick B.

CONTITUTIONAL LAW
PURSLEY
SPRING 2012

A. States vs. Federal Government
1. Federalism vs. Anti-federalism
I. Federalism promotes states rights over federal government.
II. Anti-federalism promotes federal government over states.
III. Fear of tyranny and faction
2. Supremacy clause
I. Constitutional provision will always outrank any state statute.
II. Relevant cases
A. Gibbons v. Ogden
B. Marbury v. Madison
C. McCulloch v. Maryland
3. The double security
I. Horizontal and Vertical separation of government
A. Horizontal: Executive, legislative, judicial branches.
B. Vertical: State and Federal governments.
II. Madison said this would make it hard for a tyrannical faction to gain control of government.
4. Federalists
I. Feared central governmental tyranny.
II. Believe it makes no senses to think that by agreeing to a constitution, states give up their sovereignty.
III. Popular sovereignty theory: Enumerated powers are only what everyone would agree to.
IV. The compact theory: Since states created the federal government, they remain the final arbiters of whether it overstepped its bounds in asserting federal authority.
IV. The anti-compact theory.
1. More conventionally accepted view, has textual support.
2. States that residual sovereignty rests with the people who retook power from the state governments and then delegated it to the federal government.
3. Affirmed by Martin v. Hunter’s lessee
V. There is no “federalist” clause in the constitution. There is no clause delegating authority over marriage, divorce, estate planning etc. to the states.
1. Two ways to interpret this
A. All the restrictions named on state power without a clause explicitly granting them power means they are meant to have lots of power.
B. All the restrictions named on state power without a clause explicitly granting them power, plus the 10th amendment, meant they were not intended to have much power at all.
VI. Intangibles that promote federalism
A. The states are represented in federal government
B. Citizens have allegiance to the state since states are “closer” to people.
VII. Why maintain federalism?
A. States do things the federal government couldn’t do efficiently.
B. Fear of over-centralization of power.
C. Provides more opportunities for citizens to participate directly in democracy.
VIII. Modern protection of states rights:
A. Judicial enforcement
B. Political Safeguards theory
C. A combination of (A) and (B).     
5. Anti-Federalists
I. Are in favor of expanded congressional and federal power.
II. Got a big boost with the revised view of the commerce clause after the great depression and FDR.
III. Political safeguards doctrine
A. Since Congressmen are elected by the states, the states have thus implicitly given their blessing to whatever statutes congress creates.
B. Advanced by Gibbons, James Madison, and Wechsler.
C. Modern Political safeguards are:
1. Political parties (since they almost never control both state and federal government simultaneously).
2. Bureaucracy.
D. Strong view of political safeguards is that questions involving federalism are not justiciable since they involve political questions because it involves the political will of the people.
1. This view not embraced by the Court.
E. Moderate view is that the court will defer to congress on allocation of power between federal and state governments unless Congress clearly errs in doing so.
F. A criticism of this would be that the representatives don’t really represent the states interest. Another criticism would be that the state and federal branches compete with one another, and may put their own self-interest first.
IV. States are a part of the political system, and can protect themselves. (Garcia v. SAMTA)
V. Arguments in their favor
A. When states have too much power, civil war could result.
B. Constitution
1. Functions of constitution
I. Structure Government
II. Protect rights
III. Entrench requirements of government against easy change
IV. Trump other “ordinary” laws.
2. Article 5 of constitution makes it very hard to amend.
I. Requires 2/3 of both legislatures or 2/3 of states
3. Theories about interpretation
I. Textualism
A. The theory that SC must interpret the constitution in a vacuum, without consulting any other sources.
B. Hard to apply in practice.
II. Originalism
A. Court must first look to text of constitution itself. If still unclear, then SC should look to perceived intent of framers, using the values and language of the time.
III. Non-originalism
A. 1st type of non-originalists: Strict textualists who reject the views of  the framers as a valid basis for constitutional interpretation.
B. 2nd type of non-originalists: SC can look beyond what the word of the constitution and the intent of the framers.
IV. Functionalism/Realism vs. Formalism
A. Formalists want clear, simple, decisive analysis.
B. Functionalists/realists (F/R) are more willing to look at the broader effects of their decision to come to a conclusion (such as the effects test for commerce powers).
4. Structure of constitution
I. Article I lays out the legislature.
II. Article II lays out the executive branch.
III. Article III lays out the judicial branch.
-Only establishes the supreme court, no lower courts. Which is why Marbury went immediately to the supreme court.
IV. The first ten amendments comprise the bill of rights.
5. Two ways to se

unsolicited opinions giving their guidance.
2. Forbidden because it would involve them in controversies.
3. How to tell if its an advisory opinion
I. There are not two distinct litigants
II. It is unclear if writing an opinion would resolve the issue.
C. State courts care not bound by this rule. Thus a state SC case involving a controversy cannot be appealed to the US SC.
II. Legal Advisory Bar Rule
A. Courts cannot act as legal advisors to other branches.
B. Another reason why advisory opinions are verboten.       
III. Standing
A. Standing is related to:
1. Who the plaintiff is; and
2. The nature of their claims
B. Two kinds of standing requirements
1. Constitutional (mandatory): The court needs the constitutional right to    hear the case.
2. Prudential (self imposed): Court decides not to address a case or controversy because they are concerned about the consequences of doing so. Prudential requirements include:
I. No general grievances. You must show a particularized injury. Thus you can’t sue on the basis of being a tax payer.
II. No 3rd parties: You cannot assert rights on behalf of someone not present.
III. Must be a protected party. If you suing under a statute, you must be a member of the group or class that statute was designed to protect.
C. Constitutional standing requirements under Allen v. Wright:
1. Injury in fact that must be a judicially cognizable invasion of a legally protected interest of the plaintiff that is:
I. Concrete and particularized, not abstract or general; and
II. Actual or imminent, not conjectural or hypothetical
-How do you prove an injury in fact?
-You show a significant effect of future injury.
2. Causation: Injury is “fairly traceable” to D’s conduct.
3. Redressability: Injury is likely to be redressed by the judicial relief sought. You don’t have to be sure it will solve the plaintiffs problems, it just has to be likely.