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Constitutional Law I
Villanova University School of Law
Lanctot, Catherine J.

I. Constitutional Structure [text, framers intent/history, precedent, structure, other values]


– S: Marbury was a last-minute judicial appointee of outgoing president Adams – whose commission was not delivered to him before Adams left office. Jefferson denied to deliver. Art. III does not grant original jurisdiction to the Supreme Court as to writs of mandamus – only appellate jurisdiction – – Judiciary act tries to grant such jurisdiction to the Supreme Court – but the Court strikes down the Act as unconstitutional
– R1: When conflict between laws and the constitution – the constitution is superior; Supreme Court may declare such laws unconstitutional and invalid.
o Reasons: Supremacy Clause (Art. 5, Sec. 2), Framer’s Intent, Oath of office – swear on constitution, and in declaring what shall be the supreme law of the land, the constitution is first mentioned. If statutes could alter the Constitution, it would diminish its value – there would be no point to a constitution – no longer be a “living document.” Statutes are issued to address matters relevant to a particular time, Constitution, in contrast, is timeless, a living document.
– R2: Judicial review arises out of Article III’s grant of judicial power to decide cases arising under the Constitution. Duty of the Court to say what the law is.
o Limits: address issues narrowly and only those before it, construe statutes to fit within Constitutional scheme, if alternative grounds to dispose of litigation – Court will not pass upon Constitutional judgments
o Checks: Constitutional amendment (rare and cumbersome – would 2/3 vote of Congress or state ratification conventions; Art V gives no express time limit on ratification), presidential appointment (Senate consent), impeachment (never worked – Senate has power – behavior must be serious abuse), statues stripping jurisdiction (Art III – – court may impose limits on jurisdiction of federal courts)


– S: Virginia SC held that it was not bound to the ruling of the SC
– R1: Supreme Court has power under Article III to review the judgments of the highest state courts on issues of federal law
o Art. 3 Sec. 2 Clause 1 – – confers broad appellate jurisdiction to the SC; the framers must have contemplated that litigation would come up through states or federally; If appellate jurisdiction is denied in any case, then appellate power extend to certain cases not ALL.
o FG superior – (1) supremacy clause (2) commerce clause (3) Article I, Section 10 – power to coin money, enter treaties, etc – – these are fundamental acts of sovereignty which states do not have power to do
o Must be uniformity in federal law to preclude different state judgments on same federal issues
o Central federal power is no surprise – Framers decided on it
– VA’s arguments: separate sovereignties, Congressional obligation to secure the uniformity of federal law – all federal law questions should go to fed court – Congress can create fed courts

– Court functions:
o (1) Counter-majoritarian role – apolitical branch insulated from political pressures that attends Congress;
o (2) Judicial review good: stability – unless Court had last word – Constitution would not have fixed meaning; Counters:
§ judicial review carried out by unelected branch; if Constitution meaning is fixed – no reason to defer to judges
§ judicial review is antidemocratic – imposes majority will of earlier generations AND eliminates barriers to democratic participation
§ judicial review makes it difficult to correct mistaken interpretations of the Constitution
§ judicial review causes people to lose the political experience, education and stimulus from fighting constitutional questions

– Noninterpretivists – should not attempt to figure out meaning of text – instead reflect today’s sense of justice; may import extra-constitutional norms
– Interpretivists – only legitimate form of judicial review is interpretation of the written text of the Constitution. Methods to help:
o Text
o History – (1) originalism – framer’s intent; (2) vectors – derive historical meaning from observing way that Constitutional understanding has changed over time
o Structural – principle implicit in structure of government
o Doctrinal – stare decisis
o Prudential Argument – practical wisdom of ruling a certain way
o Cultural Argument – rooted in widely shared cultural norms (autonomy, fairness, and justice)


– S: Congress passed law to set aside a court decision refusing to approve a will
– R: Congressional action within the scope of constitution cannot be voided by SC

– Standards of Review:
o Rational Basis – (1) legit government objection (2) rational relation – – most deferential
§ Burden on challenger – presumed constitutional
o Intermediate – (1) purpose is important (2) statute is substantively related to the accomplishment of that purpose. Questions of exceeding granted power often fall in this category.
o Strict Scrutiny – (1) compelling government objective (2) narrowly tailored – – least discriminatory means
§ Presumed unconstitutional
o Argument that infringement on fundamental Constitutional right – deserves strict scrutiny; Argument that anything that is not fundamental right – deserves rational basis
o Question of whether un-enumerated rights rise to the level of fundamental rights – that they should receive heightened protection (e.g. Lochner)

Ex Parte McCardle (Exceptions Clause – – Jurisdiction Stripping)

– S: McCardle jailed for printing libelous articles brings habeas; Congress repealed the statute upon which McCardle asserted jurisdiction before decision rendered
– R1: Congress has the constitutional power to make exceptions and regulations regarding the Supreme Court’s appellate jurisdiction
– R2: Congress may strip jurisdiction as long as it is not in substance a command to decide in a particular way; Exceptions and regulations power of Congress canot be used to impair the Court’s essential function of maintaining supremacy of federal law and resolving conflicts of federal law
– McCardle argues Court ruling guts Article III because Congress can continue to strip jurisdiction to make decisions it favors

Klein (Exceptions Clause – – Rules of Decision p

ies – affecting interstate commerce. Work stoppage would have direct impact on interstate commerce – not remote effect – when industries organize on national scale – protection of interstate commerce allows for regulation of labor relations
o (2) Protective Principle – intrastate commerce can be regulated when necessary to protect instrumentalities of interstate commerce (ruling- aff’d ICC order – railroads charge same for interstate and intrastate shipments)
o (3) Stream of Commerce Theory – Congress can regulate intrastate matters that are deemed an essential part of the stream of interstate commerce. Swift – Upholding an injunction against meatpacking houses engaged in price-fixing against the Sherman Act, the Court, while admitting that sales were local, emphasized recurring movement of live animals into and the shipment of meat interstate
o (4) Banning interstate movement of article of commerce – – where interstate commerce must be necessary to the accomplishment of harmful results; Champion – Congress uses commerce power to ban shipment of lottery tickets – articles of commerce; Congress believed lotteries evil; slippery slope argument that FG will exceed its power – constitutional check is voting
§ Darby – specified min wages and max hours for workers making goods for interstate shipments. Motive and purpose of legislation are not subject to the Court’s inquiry do not constrain legislative judgments as to interstate commerce.
o (5) Aggregation Principle – Wickard – Farmer grew extra wheat for home consumption. Act restricts private production of wheat; overproduction means people don’t go out to buy. Particular intrastate activity as part of a class of such activity, regardless of nature (e.g. production not commerce), if the class has any substantial impact on interstate commerce regardless direct/indirect => Congress may regulate. *Court have articulated no proportionality principle limiting aggregation.


– S: student arrested for having a gun on school campus – convicted under Gun-Free School Zones Act authorized by the commerce power; Court strikes down Act – inference upon inference; no congressional findings on effect on interstate commerce thus not rational basis deference
– R: Congress may regulate: (1) channels of interstate commerce – e.g. roads (2) protect instrumentalities of interstate commerce, even if the threat comes from intrastate activities – e.g. anything crossing state lines in commerce (3) activities “substantially affecting” interstate commerce