I. Judicial Review
A. Constitution of the United States
Art. I creates legislative branch (powers of Congress)
Art. I § 8 limited powers
Art. II creates executive branch
-Two interpretations of Second Amendment:
a. collective theory: states may have their own militia (National
Guard) and that they have the right to have arms
b. Individualistic: I as an individual can have my firearm
Art. II § 2 powers
Art. III creates judicial branch
Art. III § 2 federal questions
-when the Supreme Court has original jurisdiction over cases and when
it has appellate jurisdiction
(Art. IV – VI: basic ideas drafted in 1787; about the structure of this gov’t)
Art. IV § 1 full faith and credit
Art. IV § 2 privileges and immunities
Art. IV § 3 new states
Art. IV § 4 guaranteed republican form of gov’t
Art. V how to amend
Art. VI cl.2 supremacy clause (fed. law is supreme; Constitution is Supreme law of the land)
Art. VII ratification process
Amend. I-X Bill of Rights (1971); limit on fed. powe
-basically part of original Constitution
-unless these amendments were added; the Constitution
would not have been ratified
-provide rules about relationship between government
-also deal with relationship between States and the Federal
government
-Amendment I: freedom of religion, speech, press
-freedom of speech applies to the states through its incorporation
into the Due Process Clause of 14th
Amend. XI limits fed. courts (don’t have power to award damages against states)
Amend. XIII-XV Civil War amends; individual rights (1865-1870)
-13th Amendment ends slavery (which started in 1619)
-14th Amendment added 1868 (after Civil War)
-4 parts
1. privileges and immunities
2. due process
3. equal protection
4. Congress’ power to protect those
-being treated in state w/o lawyer violates the 14th Amendment
Due Process
-incorporates 6th Amendment right to counsel
Amend. XIX Right to vote based on sex (1920)
B. Functions and purposes of the Constitution
1. Establishes national gov’t and allocates power btn 3 branches.
2. Addresses and determines relationship btn national federal gov’t and states.
3. Limits power of gov’t (protects individual rights).
C. Key propositions from Marbury v. Madison
1. Deal with act of Congress and actions of federal presidency
2. Creates authority for judicial review of executive actions.
3. Establishes that Art. III is ceiling of federal court jurisdiction (Congress can’t expand
original jurisdiction of Supreme Court).
4. Establishes authority for judicial review of legislative acts, but did not establish the Standard of Review
5. Legislative vs. Constitution—Constitution Wins
6. Background
a. In the beginning there were 2 parties:
i. federalists
1. urban interests, wealthy, finance, commercial, etc.
2. lost 1800 election for Prez when Adams was defeated by
Jefferson
a. then created a whole bunch of life appointed
federal judges (“midnight judges”)
b. Marshall was Sec. of State and Chief Justice under
Adams
i. Marshall was first person to institute that only
one person writes for the court
ii. republicans
1. examples: Jefferson, Jackson, etc.
2. rural interests, more liberal, against centralizing power in
the federal government
7. Marbury doesn’t get his commission because Supreme Court has no power to issue writ
8. Madison is new Sec. of State and says he is not giving Marbury commission
a. Prez. Jefferson says you are not entitled to it
b. Congress repeals entire act of appointing judges, etc.
9. Court has power to decide what Washington and majority of Congress did is
unconstitutional because (p. 6)
a. we have a written Constitution
b. judges take an oath to support the Constitution
10. Establishes that court has final word on what Constitution means
11. Even though Marbury was entitled to commission, he never got it because he brought
suit in wrong court (he brought it in Supreme Court)
D. Judicial Review
1. The judicial branch has the power to declare an act of Congress unconstitutional.
2. Whether act of officer of president is examinable depends on the nature of the act:
a. Political act: discretionary acts ® no power to review
b. Ministerial act: specific duty assigned by law ® power to review
3. The judicial branch as the power to review state judgments (Martin v. Hunter’s Lessee),
as well as criminal judgments (Cohens v. Virginia).
a. These say we can decide what is Constitutional for us, BUT they end up
getting knocked out
4. Supreme Court decisions are enforced by its judicial power
5. Law passed in 1789 giving Supreme Court right to hear ‘writ of mandamus’
a. That they act as Constitutional and can’t be enforced
E. Cooper v. Aaron, p. 9
1. State said it would not comply with decisions of Supreme Court
2. Supreme Court said they must comply
3. Then Prez had to send in federal troops to force compliance
F. Dred Scot/Missouri Compromise
1. Congress had passed statute called Missouri Compromise
2. Missouri Compromise – Congress said there were going to be some states that
were free states
3. Dred Scot escaped, was caught in a free state and was returned
4. Supreme Court said he could not bring this suit because he was not a person – he
was property
II. Federal Legislative Power
A. Introduction—ANALYSIS
* DOES CONSTITUTION GIVE AUTHORITY TO CONGRESS?
* DOES ACT VIOLATE CONSTITUTION OR DOCTRINES?
LEGISLATIVE ACTS ARE CONSTITUTIONAL IF…
1. ENDS ARE LEGITIMATE
2. WITHIN SCOPE OF CONSTITUTION
a. NOT PROHIBITED
b. CONSISTENT WITH LETTER & SPIRIT OF CONSTITUTION
1. Interpretive limits: how Constitution should be interpreted
a. Originalists focus on test and what framers intended.
b. Non-originalists believe the Constitution should evolve by broad interpretation.
c. Ways to look at Constitution
i. Originalism – Constitution only protects those rights that are expressly
stated.
ii. Follow framers’ general intent rather than specific intent (abstract
originalism).
iii. Look at original meaning of text as reflected in practices of the times.
iv. Tradition.
v. Process-based theory – create a fair process of gov’t.
vi. Identify values that were important to framers and find those that are so
important as to be protected from majority vote (aspiration).
d. Individual Constitutional rights are not absolute (US v. Emerson).
2. Congressional limits: ability of Congress to restrict federal court jurisdiction
a. “In all the other Cases before mentioned, the supreme Court shall have appellate
Jurisdiction, both as to Law and Fact, with such Exceptions, and under such
Regulations as the Congress shall make.” Exceptions and Regulations Clause of Art. III § 2 cl. 2 gives Congress authority to limit
Supreme Court jurisdiction.
b. However, Congress can’t misuse this power (e.g. can’t selectively confer
jurisdiction (Ex Parte McCardle)).
3. Justiciability limits: series of judicially created doctrines that limit the types of matters
that federal courts can decide
4. Standard of Review
a. narrow—constitutional first
b. broad—unconstitutional first
5. Constitution does have to be interpreted, like Amendment V
B. Commerce Clause (Art. I § 8 cl. 3)
1. Powers delegated to Congress but not enumerated in the Constitution can be implied
under the Necessary and Proper Clause (Art. I § 8 cl. 18) (McCulloch v. Maryland).
Note: Clause 18 is placed among the powers, not limitations of Congress.
2. Questions the Supreme Court considers:
a. What is “commerce”?
Court used Commerce Clause rather than 14th Amend. b/c earlier cases said
there was no power to regulate private behavior under the 14th Amend.
8. Regulatory laws
a. Standard is now rational basis rather than substantial effect (Hodel v. Indiana).
9. Criminal laws
a. Congress has power to criminalize behavior when it affects interstate commerce (Perez v. US).
F: Loan shark used threats of violence to collect.
R: Organized crime affects interstate commerce b/c interstate crime.
10. Summary of modern view – Activity that Congress may regulate:
a. The channels of interstate commerce (highways, waterways, and air traffic)
(Darby, Heart of Atlanta).
b. The instrumentalities of interstate commerce (people, machines, and other
“things” used in carrying out commerce) (Shreveport).
c. Activities having a substantial effect on interstate commerce (Jones & Laughlin Steele).
11. Substantial effect cases
a. US v. Lopez
F: Gun-Free School Zones Act makes it a federal crime to possess a firearm in or near a school. The act applies even if the particular gun never moved in (or affected) interstate commerce.
R: The link between gun-possession in a school and interstate commerce is too attenuated to qualify as a substantial effect, because if it did, there
would be essentially no limit to Congress’ Commerce power.
Test: 1) noneconomic activity [yes]
2) express jurisdictional element or “hook” [no]
3) congressional findings [no]
4) link btn activity and substantial effect on interstate
commerce [no]
b. US v. Morrison
F: Violence Against Women Act says that any woman who is the victim of
a violent gender-based crime may bring a civil suit against the
perpetrator in federal court.
R: Although it may be true that some women’s fear of gender-based
violence dissuades them from working or traveling interstate, gender-
based violence is not itself a commercial activity, and the connection
between gender-based violence and interstate commerce is too attenuated for the violence to have a substantial effect on commerce.
Test: 1) [yes]
2) [no]
3) [yes]
4) [no]
c. Solid Waste Agency v. US Army Corp. (supp)
F: Congress passed Clean Water Act (CWA) to protect the environment.
US Army Corp. used the CWA to pass a migratory bird rule b/c
destruction of wildlife is a national problem. Navigable waters are a
part of interstate commerce.
R: Court found that the migratory bird rule was an inappropriate
interpretation of an act of Congress, but not unconstitutional. A narrow
interpretation of the Commerce Clause.
Test: 1) [probably commercial]
2) [yes]
3) [yes]
4) [yes]
C. Taxing and Spending Clause (Art. I § 8 cl. 1)
1. Congress has the power to “lay and collect taxes.” This taxing power is an
independent source of congressional power, so it can be used to reach conduct that
might be beyond the other sources of congressional power, like the Commerce Clause.
2. Congress also has the power to “pay the debts and provide for the common defense and general welfare of the United States. This is the spending power.
3. Scope of taxing and spending power
a. Narrow view: limited to taxing and spending related to enumerated powers
b. Broad view: exercise power to provide for the general welfare ® view court
adopts in US v. Butler
4. General restrictions on taxing and spending power (South Dakota v. Dole)
a. Must be in pursuit of general welfare
b. Must be clearly and expressly stated
c. Has to be related to main purpose
d. Can’t be coercive
* 10th Amend. is not a restriction
D. Congress’ Power Under Post-Civil War Amendments
1. Congress’ sources of power
a. Commerce Clause
b. Taxing and Spending Clause
c. 13th-15th Amend.
* 14th Amend. § 1—find power
