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Constitutional Law II
Valparaiso University School of Law
Levinson, Rosalie Berger

Constitutional Law Outline
FALL 2008

I. Federal Judicial Power

A. Article III is the ceiling of federal court jurisdiction and Congress cannot enlarge upon that power.
B. The federal judiciary (in addition to the Supreme Court) has the authority and duty to declare a congressional statute unconstitutional if the statute violates the Constitution. Marbury v. Madison.
1. The Supreme Court can Review the acts of the other two branches of government to ensure that they acted within their constitutional power.
2. State officials are bound by what the Supreme Court says that the law is. Cooper v. Aaron
3. The Supreme Court may review state court opinions, but only the extent the decision was based on federal law or in criminal proceedings with due process questions. (Martin v. Hunter’s Lessee)
i. State courts have the final say on what state constitutions, statutes and common law are.
ii. U.S. Constitution is the supreme law of the land
1. Can trump any of the state law.
4. Limits on federal judicial power
i. Interpretive limits: Must follow the principles of constitutional interpretation
1. Originalism – confined to the norms that are stated or clearly implicit in the constitution.
2. “Non-Originalism” – evolves by interpretation & amendment
ii. Congressional limits: Congress can place limits on the federal courts because under Article III, Congress has some power to limit jurisdiction of the federal courts.
iii. Justiciability: Self-imposed limits found in Art. III.

II. Standards of Review
A. Rational Basis Review
1. State regulation will be upheld if it is rationally related to achieving a legitimate state purpose. [Usually social and economic regulation]

III. Federal Legislative Power
A. Congress may act only if there is express or implied authority in the constitution.
1. NO general federal police power; State has a general police power (ability to regulate solely on the basis that the regulation would enhance the welfare of citizens). But there is NO GENERAL FEDERAL POLICE POWER.
2. Necessary & Proper Clause: “make all laws that shall be necessary and proper for carrying into execution” its specific powers. This means that if Congress is seeking an objective that is within specifically enumerated powers, then Congress can use any means that is:
a. Rationally related to the objective Congress is trying to achieve
b. Not forbidden by the Constitution
c. When Congress has the power to act and does act, the federal law trumps state law.
i. McCulloch v. Maryland – the Court said that Maryland could not tax the Bank. The federal law is supreme because of Supremacy Clause. The power of Maryland to tax is the power to destroy. Establishment of the bank was necessary and proper action for raising money.
3. Cannot violate a specific constitutional provision: even where congressional action appears to fall within a specific grant of power the federal action may not violate another constitutional guarantee. 2 TESTS:
a. Fall within some specific grant of power.
b. Must not violate any specific constitutional provision.

B. Commerce Power: Article I § 8 – congress can regulate commerce with foreign nations, with Indian tribes and among the states.
1. Supreme Court asks three questions in commerce clause jurisprudence:
a. What is commerce?
i. Commerce is all forms of intercourse: including electricity, radio waves, stocks, insurance, people crossing state lines. Limited in the late 1800’s – Gibbons v. Ogden
ii. Manufacturing is separate from “commerce” because it occurs before any goods are transported in interstate commerce and thus the federal government may not regulate manufacturing in and of itself. U.S. v. E.C. Knight
iii. Local activities – i.e. negotiation of wages and working conditions are not outside of Congress’s realm of authority.
1. Carter v. Carter Coal – willingness to break down into segments and determining what Congress is attempting to regulate.
b. What does “among the states mean?”
i. Congress has the ability to regulate intrastate transactions because of their impact on interstate commerce. Shreveport Rate Cases
ii. Once interstate commerce goods are sold or disposed of in the state of final destination, they are no longer in interstate commerce and not subject to federal law. A.L.A. Schlechter Poultry.
iii. The stream of commerce theory allowed congress to reach activities incident to the movement of goods in interstate commerce unless the activity was remote from any regulation of commerce.
c. The Tenth Amendment may limit congressional power
i. “The powers not delegate to the United States, nor prohibited by it to the States are reserved to the States respectively, or to the people.”
1. Two Views of meaning:
a. Reminder that congress may only act under the power of the constitution.
b. A key protection of the state’s rights & federalism. Reserves a zone of activity to the states for exclusive control.
c. Although activities may be intrastate in character, when they are added as

axes, to pay the debts, and provide for the general welfare of the U.S.
a. Taxation must serve the general welfare. U.S. v. Butler
b. Congress can tax for the general welfare only, cannot adopt other kinds of laws that will serve the general welfare because they lack police power.
c. Guidelines: South Dakota v. Dole
i. Must be for the general welfare. Should defer to Congress.
ii. States receipt of the federal funds must allow choice unambiguously; [Must be clear].
iii. Must be reasonably related to the purpose of the money.
iv. Cannot violate anything else in constitution; most commonly a 10th Amendment issue.
2. Currently court tends to use the broad notion of the spending clause as shown in Butler; However, there are some limits on the spending power as shown in Dole.

D. Congress’s Powers Under the Post Civil War Amendments
1. Addition of three amendments: 13, 14, 15
a. 13th – bans slavery and includes a clause allowing congressional enforcement through appropriate legislation
b. 14th – provides for due process; protects privileges and immunities of citizens and guarantees equal protection of the laws, while including an enforcement clause [persons born in the U.S. are naturalized citizens].
c. 15th – guarantees the right to vote and includes an enforcement clause [no discrimination by race].
2. 14th Amendment: limited to state and government actions, no effect on private conduct.
a. § 5 14th – authorizes Congress to adopt laws to enforce the 14th Amendment.
b. Congress cannot create new rights or expand the scope of rights.
c. Congress may adapt laws to prevent or remedy violations of rights recognized by the courts. Such laws must be narrowly tailored: i.e. “proportionate and congruent.”
i. only to state activity
d. § 5 14th – authorizes Congress to enact remedial legislation prohibiting enforcement of state laws found to abrogate civil rights. Katzenbach v. Morgan.
e. § 5 gives Congress the power to enact laws as remedial measures and to prevent constitutional violations, but does not