Constitutional Law I Outline
Spring 2008
· General Concepts
· The Three Legs of Constitutional Interpretation
· Text–always begin here.
· Symbolic
· Precise
· Traditional
· Tradition–Looking at it in the context of American History
· Reason–analogical reasoning
· Statutory Interpretation
· Intrinsic
· Text–if statue is unambiguous, plain meaning control
· Every word and clause must be given effect
· Statutory definitions, where given, are controlling
· Context–looking at the text in light of other provisions in the Constitution
· A word or phrase in one part of the document means the same somewhere else
· Structure–viewing the document as a whole
· Ask: what type of government did the framers seem to be envisioning?
· Republic
· Life, liberty, and pursuit of happiness (property)
· Separation of church and state
· Freedom of oppression
· Extrinsic
· History/Tradition
· Precedent
· Policy
· Least effective form of argument
· Judiciary shouldn’t be able to insert “PPP,” or personal policy preference
· Should instead be bound to interpretation from “stool method”
· Policy should be left to legislatures, as the nation votes these people in to further public policy interests
· Other documents
· Regulations
· Legislative history (way to figure out the intent of framers)
· Other statutes
· THE STRUCTURE OF THE CONSTITUTION
· Article I–Legislation
· Bicameral Legislature
· 2 houses
· House of Representatives
· Sole power of impeachment
· Sole power to propose bills to raise revenue
· Senate
· Sole power to try impeachments
· Article I, Section 8: Concurrent Powers of House and Senate
· Police Powers–health, safety, welfare and morality
· Taxation
· Borrow/coin money
· Provide for the common defense
· Establish post offices and roads
· Declare war
· Raise and support army and navy
· Confirm presidential nominations
· To make all laws that are “necessary and proper” for exercising powers
· Article I, Section 9: Limits on Federal Power–protect individuals
· Habeas corpus cannot be suspended
· No ex post facto laws
· No tax on exports of any state
· No preference of one state to another
· Article I, Section 10: Limits the States–protects the power of the National Government
· No treaty power
· No coining money
· Cannot pass ex post facto law
· Cannot keep troops
· Cannot enter into agreement with other state of foreign nation
· Article II–Executive
· Executive power is vested in the President of the US
· Commander in Chief of the army and navy
· Can grant pardons except in cases of impeachment
· Power to make treaties
· Nominate ambassadors
· Nominate Supreme Court justices
· Can convene and adjourn Congress
· Article III–Judicial
· Judicial power is vested in the Supreme Court and inferior courts that Congress creates
· For FEDERAL questions; interpret federal statutes, Constitution, and treaties
· Given authority to nullify statutes or behavior by the President that the court thinks is inconsistent with the Constitution
· Article IV–Limits on States
· §1 Full Faith and Credit
· §2 [1]: Privileges and Immunities clause–the citizens of each State shall be entitled to all privileges and immunities of citizens of the several states
· §2 [3]: Fugitive slave clause
· Article V–Amendments
· 2/3 of Congress has to propose and pass an Amendment, OR
· 2/3 of legislatures of several states shall call a Convention for proposing Amendments, AND
· Must be ratified by legislatures of 3/4 of states OR
· By a Constitutional Convention
· Article VI–Supremacy Clause
· If you’re a big states-rights guy, you don’t like the Supremacy Clause; anti-federalists lost this one
· Bill of Rights and Other Amendments
· Free Speech–Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble
· Keep and Bear Arms
· Soldier Quartering
· Unreasonable Search and Seizure
· Due Process–No person shall be deprived of life, liberty, or property w/o due process of law; nor shall private property be taken for public use without just compensation
· Speedy and Public Trial
· Jury
· Cruel and Unusual Punishment
· Cannot deny rights to people
· State rights
· N/A
· Electoral College
· Slavery–
· Neither slavery nor involuntary servitude, except as a punishment of a crime, shall exist;
· Section 2: Congress shall have power to enforce this article by appropriate legislation
14. Incorporation
y the govt
· Enjoyment of life and liberty, with right to acquire/possess property
· Pursue and obtain happiness and safety
· Pas through and reside in other states
· Claim the benefits of habeas corpus
· Many others not enumerated
· Dred Scott v. Sanford–1857
· RULE: First, claimed lack of jur; then, declared the Missouri Compromise unconstitutional and broadly held that slaves were property, not citizens. A citizen of a STATE is not necessarily a citizen of the UNITED STATES.
· Missouri Compromise–Congress had admitted Missouri as a slave state, but prohibited slavery in the territories north of the latitude of 36’30. Territories below this line could decide whether to allow slavery and could make that choice when admitted as states.
· Written by Taney (PPP)
· Incorporation
· The 14th Amendment, 1868
· Passage
· Southern states that had seceded had to pass in order to get back into the Union
· Debates
· Bingham: says they did NOT expressly say that this incorporates the BOR because it was assumed
· States were already bound by the Constitution
· P&I were already in Art. IV
· 2nd draft allowed for entrenched rights, where the 1st did not
· Hale said the Constitution is meant to regulate the federal government, and do the things the states cannot do
· Three Rights of the Fourteenth
· Right to due process
· Right to P&I
· Right to Equal Protection
· Gives citizens a federal cause of action against the states
· Text– “No state shall make or enforce any law which shall abridge the P&I of citizens of the US, nor shall the state deprive any person of life, liberty, property, w/o due process of the law, nor deny any person the equal protection of the law”
· Slaughterhouse, 1873 (Miller)
RULE: Court holds that the 14th P&I Clause prohibits states from infringing on P&I rights of
