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Constitutional Law I
University of Toledo School of Law
Knouse, Jessica

Con Law I outline summary

I. Judicial Power
n Source (Art. III) & Limits (Legislative; Executive)
II. Legislative Power
n Source (Art. I) & Limits (Judicial; Executive; States)
III. Executive Power
n Source (Art. II) & Limits (Judicial; Legislative)
IV. Limits on States
n Preemption (Art. VI) & Dormant Commerce Clause
V. Individual Rights

Part I: The Federal Judicial Power
A. The Authority for Judicial Review
B. Limits on the Federal Judicial Power

Part II: The Federal Legislative Power
A. Introduction – McCulloch v. Maryland
B. The Commerce Power

Part III: The Federal Executive Power
A. Inherent Presidential Power
B. Congress’s Authority to Increase Presidential Power
C. The Administrative State
D. Separation of Powers and Foreign Policy
E. The War on Terror
F. Checks on the President

Part IV: Limits on State Power
A. Preemption of State and Local Laws
B. The Dormant Commerce Clause

Part V: Individual Rights
A. Application of the Bill of Rights to the States
B. Economic Substantive Due Process
C. Modern Substantive Due Process

A. The Authority for Judicial Review, 1-11 [Sources]:
1. Source of Judicial power: Art III, section 1 provides that “the judicial power of the US shall be vested in one Supreme Court, and in such inferior Court as the Congress may from time to time ordain or establish.”
2. Scope of Federal Judicial Power: Art III, section 2 limits the jurisdiction of the federal courts to 1> cases, in law and equity, arising under the Constitution, Laws of the US and Treaties; 2> cases affecting ambassadors, public ministers and consuls; 3> cases of admiralty and maritime jurisdiction; 4> controversies to which the US shall be a party; and 5> controversies between two or more states; 6> cases between a state and citizens of another state; and 7> cases between citizens of difference states (diversity of citizenship cases).
3: Jurisdiction of the SCT: [Art III section 2, clause 2]:
1) Original Jurisdiction: Under Art III section 2, the SCT has original jurisdiction “in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party.” In Marbury v. Madision, SCT interpreted that Congress may neither enlarge nor restrict the SCT’s original jurisdiction Marbury v. Madison—question presented: 1> Has Marbury a right to the commission? –>yes—he acquired a right when the commission was sigend by Admas and sealed by Marshall. 1> Is there a remedy for violation of the rights?–>Yes—Madision’s faulire to perform his DUTY to deliver the commission violated Marbury’s rights. 3> Is the remedy a mandamus from the SCT? –No—it is a mandamus, but not from the SCt. In Marbury, SCT interpreted that where the Constitution conflicts with laws or actions enacted by Congress, the SCT may declare such law or actions unconstitutional and invalid.
2) Appellate jurisdiction: Art III, section 2 further provides that “in all the other cases before mentioned, the SCT shall have appellate jurisdictions, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”
i. Power of Judicial review: Marbruy v. Madison established judicial review of federal legislative and executive acts. Martin(in civil cases) and Cohens(in criminal case) established judicial power to review state court decisions on federal law.
● Martin v. Hunter’s lesses: Facts: Martin claims the title to the land that Virginia had confiscated from Fairfax and conveyed to Hunter. After Virginia appeal, Martin appealed to SCt under section 25 of the Judiciary Act.
R: SCt under Article III and VI concluded that the SCt may review state judgments involving issues of federal law.

● Cohens v. Virginia
Facts: Cohen appealed from a conviction that Virginia law banning the sale of lottery tickets to the SCt that authorized to sell tickets by federal law.
R: in contrast to Martin, the state itself was a party to the suit. Article III, section 2 gives the SC appellate jurisdiction in all cases arising under the Constitution, laws, or treaties of the US, whoever may be the parties whether the state or individual.

B. Limits on the Federal Judicial Power, 11-125 (Limits on jurisdiction of federal courts)
Art III, section 2 limits the jurisdiction of federal courts to “cases” and “controversies.” Thus, 1> federal courts will not give advisory opinions, but the prohibitions against advisory opinions does not precludes federal courts from granting declaratory judgment. And 2> an “actual case or controversy” must exist at all stages of the litigation [mootness]. And 3> the “controversy” must be ripe for decision [ripeness]: the ripeness requirement prevents federal courts from deciding constitutional issues before it is necessary to do so. Whereas mootness bars consideration of claims after they have been resolved, ripeness bars consideration of claims before they have fully developed. 4>Also, Art III requires that a P bringing a lawsuit in federal court must show injury in fact, causation, and redressability [Standing]. And 5> federal courts will not decide issues that should be resolved instead by the political branches (i.e. executive and legislative) of the government, rather than the judiciary [the political question docrine].
1. Interpretive Limits: (1> interpretive—created by convention, 2> Congressional—created by Constitution, 3> Justicability—created by Constitution and Convention. )
1) Interpretive methods: designed to prevent Court from making political judgments, but cases reveal methods are flexible.
a. Original methods:
i. Original meaning: intra/inter-textual comparision // Structure of entire document.
ii. Original Intent (frame’s intent.)
b. Evolutive methods: i. Doctrine. ii. Tradition. iii. Pragmatism(practical)
## What sources and methods are used in interpreting…i. “right to the People”—Original meaning intra-textualism. ii. “Keep and Bear Arms”—original meaning inter-textualism. iii. “Well-regulated militia” –Original meaning intra-textualism. iv. Relationship of the Clauses—Original meaning inter-texualism
□ Counter-majoritarian difficulty (judicial review v. democracy)
A few, UNELECTED, life-tenured judges control the meaning of the constitution àundemocratice. Difficult to impeach a judge (Art II section 4)—must be serious offense. Solution—definitive methods of interpretation
□Methods of Interpretation”
▫ Originalist: use intent of original framers
. Sources: debates of the drafter, thoughts of the ratifiers, Philadelphia convention
. Judge uses the will of the people instead of own views.
▫ Textual/structural interpretation: use plain meaning of the text
. Sources: dictionaries, what did word mean in historical text
. Look at Whole STRUCTURE of document (i.e. separation of power is not in text but in structure)
. Intratextualism: necessary v. absolutely necessary
▫ Doctrinal interpretation: use common law precedence
.Source: court’s own interpretation in the past
. Look at the doctrine not the text
▫ Social consensus: what people want. Source: survey 50 states, what laws do most have.
▫ Prudential: make practical decisions
▫ Constitutional moments:
.when a super majority of the people are engaged, interpret the Con to suit them.
. vs. most of the time are in regular law making, don’t care: ex: the foudnign, reconstruction (13-15A) & New deal.
. Is not only when amendments are made, but generally ppl do not care about the Ams (i.e 25A)
▫ Representation reinforcement
. Court should only intervene when the political process has malfunctioned.
. Give majority free reign.
●DC v. Heller(2008): Fact: District of Columbia law bans handgun possession by making it a crime to carry an unregistered firearm and prohibiting the registration of handguns; provides separately that no person may carry an unlicensed handgun, but authorizes the police chief to issue 1-year licenses; and requires residents to keep lawfully owned firearms unloaded and dissembled or bound by a trigger lock or similar device. Respondent Heller, a D. C. special policeman, applied to register a handgun he wished to keep at home, but the District refused. He filed this suit seeking, on Second Amendment grounds, to enjoin the city from enforcing the bar on handgun registration, the licensing requirement insofar as it prohibits carrying an unlicensed firearm in the home, and the trigger-lock requirement insofar as it prohibits the use of functional firearms in the home. Issue: Whether a DC prohibition on the possession of usable handguns in the home violates the Second Amendments to the constitution. Holding: The Second Amendment guarantees an individual’s right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.
èA federal statute that made it illegal for a person to posses a firearm while under a state restraining not based on pt findings violated the Second Amendment right of individuals to bear arms.
District of Columbia v. Heller, 554 U.S. ___ (2008) is a landmark legal case in which the Supreme Court of the United States held that the Second Amendment to the United States Constitution protects an individual’s right to possess a firearm for private use in federal enclaves(a part). It is the first Supreme Court case in United States history to directly address whether the right to keep and bear arms is a right of individuals in addition to a collective right that applies to state-regulated militias[1].
The Court ruled a total ban on operative handguns in the home is unconstitutional, as the ban runs afoul of both the self-defense purpose of the Second Amendment—a purpose not previously articulated by the Court—and the “in common use at the time” prong of the Miller decision: since handguns are in common use, their ownership is protected.
Held: 1. The Second Amendment 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 within the home. Pp. 2–53.
(a) The Amendment

edural matters that do not impinge upon the jurisdictional authority of the Coourt.
2. Appellate Jurisdction: For SCT’s appellate jurisdiction, the exercise of the SCt’s appellate jurisdiction is subject to the power conferred on Congress by the Exception Clause.
i) Defining the scope of the Exceptions Power
▫the traditional or Plenary power view v. mandatory interpretations: If Article III grnats Congress plenary authority to make exceptions to the SCt’s appellate jurisdiction in terms of raw congressional power, a statute eliminating SCt’s appellate jurisdiction would be well within the defined power granted by the Exceptions Clause. (where the statute explicitly and literally creates an exception to the Court’s appellate jurisdiction. However, if one interprets the Exceptions Clause as a component of an Art III requirement that the judicial power must extend to “all” cases arising under the Con, then this statute would be beyond the exceptions power since it completely eliminates Art III jurisdiction over a specified category of the cases arising under Con.
▫ Historical practice: under the Judiciary Act of 1789, Congress affirmatively provided the Court with appellate jris over cases decided by stat courts in which claims arising under the Con has been denied, Since the Judiciary Act of 1789 did not vest inferior federal courts with federal question juris, the federal judicial power did not therefore extend to “all” cases arising under the Con, but only to those in which state courts had denied federal claims.
▫ Precedent: see McCardle case.
□ b. Separation of Power as a limit on Congress’s Authority
even if we interpret the Exceptions Clause as granting Congress plenary power to make exception to the Sct appellate juris, it does not follow that every exercise of that power will comport with the Con; that is, all purported exercise of constitutional power are subject to three restraints—definitional (any purpoted exercise of constitutional power must come withing the defined scope of that power), structural( the purported exercise of power may not violate limitations inherent in the structure of the Con, particularly those principles embodied in the separation of powers), and external (an exercise of constitutional power may not transgress an y textual limits or guarantees imposed by the Con)
The tripartite division of power was designed as a bulwark against tyranny, and from this design, a basic principle emerges: No branch may usurp or encroach on the constitutionally vested functions of another branch. (consider whether a statute either usurped or encroached on a judicial function).

□In Marbury, SCT interpreted that Art III prevents Congress from limiting or expanding original jurisdiction, but SCT states under MCcardle and Klein that Art III. Allows congress to limit appellate jurisdiction but not when limits create “rules of decision.”
●Ex Parte McCardle: Facts: he was arrested for “incendiary and libelous’ articles publication in the Reconstruction era. He sought a writ of habeas corpus in federal circuit court, claiming that he was being held in violation of the his constitutional rights. The writ was denied, and he appealed to directly with the SCt as having appellate jurisdiction. While appeal of a habeas corpus petition was pending on the SCt’s docket, Congress passed legislation eliminating the SCt’s appellate jurisdiction in habeas corpus cases.
Rule: Although the SCt’s appellate jurisdiction is derived from the Constitution, Congress has the power to make exceptions and regulations to this jurisdiction. (SCt dismissed this case, looking at the text of the Exceptions Clause at face value)
èTaking this case at face value, if C wishes to prevent the SCt from hearing cases involving any pt topic, it may do so by the simple expedient of excluding such cases from the Court’s appellate jurisdiction. However, the repeal of the jurisdictional statute upon which MCCardle relied did not divest the SCT of appellate jurisdiction over all cases of habeas corpus. The McCardle court noted that the repeal affected only the specific jurisdictional statue upon which McCardle had relied.