Bodensteiner_ConLaw_Fall_2013
I. Judicial Review
A. Constitution of the United States
Art. I creates legislative branch
Art. I § 8 limited powers
Art. II creates executive branch
Art. II § 2 powers
Art. III creates judicial branch
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)
Art. VII ratification process
Amend. I-X Bill of Rights (1971); limit on fed. power
Amend. XI limits fed. courts (don’t have power to award damages against states)
Amend. XIII-XV Civil War amends; individual rights (1865-1870)
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. Creates authority for judicial review of executive actions.
2. Establishes that Art. III is ceiling of federal court jurisdiction (Congress can’t expand
original jurisdiction of Supreme Court).
3. Establishes authority for judicial review of legislative acts, but did not establish the Standard of Review
4. Legislative vs. Constitution—Constitution Wins
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).
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
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”?
b. What does “among the several states” mean?
c. Does the 10th Amend. limit Congress?
3. Trends in interpretation:
1800-1890 Broad
1890-1937 Narrow
1937-1990s Broad
1990s- Narrow
4. Congress has the power to regulate “commerce among the states,” which amounts to all commercial intercourse between the states (Gibbons v. Ogden).
a. Only interstate commerce can be regulated b/c want to reserve completely
internal affairs (zone of activity) to the states. (Carter v. Carter Coal)
b. Exceptions:
i. Congress may regulate an intrastate activity if it has a substantial
impact on interstate commerce (Shreveport Rate Cases).
F: Rate within Texas was lower than rate into Texas.
R: In-state rates adversely affected interstate commerce b/c
discriminated against out-of-staters.
ii. Congress may regulate an intrastate activity if it has a direct effect
on interstate commerce (Schecter Poultry Corp. v. US).
F: Brooklyn slaughterhouse received chickens from other states.
R: “The mere fact that there may be a constant flow of commodities into a state doesn’t mean that the flow continues after the property has arrived and has become commingled with the mass of property within the state and is there held solely for local disposition and use.” This was, therefore, an indirect effect on interstate commerce so remained within state
t to blacks (Heart of Atlanta Motel v. US).
F: Restaurant refused to serve blacks (Katzenbach v. McClung).
b. 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]
