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Constitutional Law I
University of Toledo School of Law
Zietlow, Rebecca E.

University of Toledo Law

Prof. Rebecca Zietlow

Con Law I – Spring 2012


A. Distribution of Power: Separation of Powers

i. Article I: Legislative Power

· Makes the law: The power of Congress to make the law, largest power

ii. Article II: Executive Power

· Executes the Law: The President; very open ended

iii. Article III: Judicial Power

· Interprets the law: Sets up the power and Jx of federal courts and how they exercise their power

B. 3 Power Struggles:

1. Separation of power between 3 federal branches

2. Balance between federal and state government

3. Balance between federal power and individual rights

§ Also between state power and individual rights

C. Sources of Constitutional Interpretation

i. Text:

· Plain meaning of words in the text, or to an ordinary English speaking person; the actual legal meaning, use of dictionary to define words when issue was drafted

· The reasoning tends to move from detailed examination of particular words to discussion of how particular legal problem is to be resolved

ii. Context:

· Focuses on use of the word in other parts of the Const.

iii. Structure and Relationship:

· Looks at broader purpose of Const., and asks how Const. must be interpreted to achieve those purposes

iv. Precedent:

· SC usually looks at its own precedent

v. History: Fed papers

vi. Aspirations:

· Fundamental principles

vii. Public Policy:

· Legislature

D. Role of History in Constitutional Interpretation

i. Original intent

· Const. intent should be interpreted in accordance with intent of the framers

ii. Original Meaning

· What did most people think the word meant at the time it was written

iii. Larger Historical Context

· Understanding the const. provision by studying the larger historical context in which it was produced and the social or political problems the provision sought to address


A. Implied Congressional Power

· Three underline concepts when talking about implied congressional power (Rules of Federalism, 10th Amend., and Supremacy Clause)

Congress can ONLY act with express or implied authority in the Constitution. Therefore, you always have to watch whether a power being asserted by the Fed. Gov’t is in fact allowed under the Const., and whether power being asserted by the states is to be limited in favor of Fed power.


1. Federal Governments’ powers ARE LIMITED to those LISTED in the CONSTITUTION

· Fed Gov’t or Congress CANNOT act, unless the Const. empowers it to do so.

· Whenever talking about whether the Fed gov’t has the power to act, must first look to the Const. to see if they have been given the power to act.

· Our Fed Gov’t is set up as a gov’t with limited powers

· The powers not given to the Federal Gov’t is reserved for the states

2. States’ powers are plenary UNLESS given away in the Const.

· The states however, don’t have to look to anything to act. There are some limitations on the states, and if they do exist, then it has to come from somewhere in the Const.

· The states retained some of their power, and did not give it all away to the Fed gov’t or the Const.

· The states have the police powers

· In McCullough v. Maryland, the majority said that limitations on state power comes from the structure of the government and not necessarily expressed in the Const., except in the Supremacy Clause

ii. State Power: 10th Amendment

a. “The powers not delegated to the United States by the Const., nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

· The presumption with the states is the opposite then that with the Fed. Gov’t

· The powers not given to the Fed gov’t are reserved for the states (states existed before the Fed gov’t and the Const. and the States gave some of their power over to the Fed gov’t, but they didn’t give it all away)

iii. Federal Power- Supremacy Clause

a. Art. VI (6), sec. 2: “This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.”

· Federal laws that are constitutional are the supreme law of the land

· Once the states’ power is given away, Federal Law is Supreme (McCullough v. Maryland: the state lacks the power to tax the National Bank)

· If Congress has the power to act, then Congress has the power to preempt state law

iv. List of Enumerated Powers of Congress: Art. I Sec. 8

1. Power of the purse (borrow and coin money, lay and collect taxes)

2. Declare and conduct war

3. Make laws/regulate (regulate commerce)

4. Supplants state authority

v. Article I, Section 8, cl. 18: Necessary and Proper Clause: Congress shall have the power “to make all laws which shall be necessary and proper for carrying into Execution the foregoing powers.”= Implied Powers

vi. Anytime the court is looking at something that the Fed. Gov’t has done, they have to ask if the Fed. Gov’t has to power to do so. This is from the Rules of Federalism.

vii. Test for evaluating when Congress has the means to act:

· (test for determining whether Fed. Gov’t actions are constitutional and appropriate) Ends (purpose)/Means (method of achieving purpose)

1) Whether the ends are legitimate?

· The end is legitimate if it constitutional and is on the list of enumerated powers. When Congress acts, it has to point to an enumerated power that it is carrying out, and is only acting legitimately when it is carrying out an enumerated power.

2) Whether means are appropriate?

· If Congress is carrying out an enumerated power, then the means used to carry out the power are appropriate. The means are appropriate if it is “plainly adapted to that end” and not prohibited

is a commercial interaction under CC and does not violate any state power protected by the 10th Amendment.

· States can’t interfere w/ interstate commerce, so state of NY can’t prevent G from using waters.

c. Definitions:

1. Commerce: Any Commercial Action, or intercourse (includes navigation and transportation)

2. “Among the States”: Concerning more states than one, “among” meaning intermingled with (broad view)

3. Does 10th Amend limit Congress? No, Marshall adopts broad view. Congress has to be able to function; to read CC narrowly would mean Congress doesn’t have any power.

v. 1890’s-1936: EARLY IC DECISIONS

a. Interpreted the CC narrowly and the 10th Amendment broadly, resulting in limited legislative power

b. Early decisions ruled that manufacturing and production did not fall within IC b/c it did not have a direct effect on IC (only indirect)

c. What does Commerce mean? Basically any commercial interaction, or exchange of commodities, transportation, sale & exchange; not production

d. What does “among the states” mean? Among meaning intermingled with; whenever it involves more than one state doing business w/ another; touches more than one state

e. When is commerce interstate? Whenever more than one state is participating w/ one another (so when it does extend to or affect other states)

f. When is commerce NOT interstate? When it’s internal commerce w/in the same state, and does not extend to or affect other states

g. Types of Congressional Based on IC:

1. Local Commercial activity affects IC

§ Direct Effect Required

§ “Manufacture” off limits

2. Objects or Persons traveling in IC (includes “Stream of Commerce”)

§ If the regulated activity is local, but if the whole reason it exists is to enter the stream of commerce, then Congress can regulate it

3. PROHIBIT locally made product from traveling in IC –“Jurisdictional Hook” to IC

§ i.e. The power to regulate Commerce, when it enters commerce

§ Ames Lottery Tickets; FDA (prohibiting impure food and drugs); Man Act (Fed crime to transport women across state line for immoral purpose_)

h. Examples:

1. US v. EC Knight (1895)

a) Commerce Definition

b) Issue: may Congress, pursuant to its commerce power, regulate the manufacturing of goods before any have actually entered the stream of interstate commerce? No.

c) Congress could not act to regulate sugar monopoly, b/c it was regulating manufacturing