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Constitutional Law I
Wayne State University Law School
Rothchild, John A.





I. Judicial review

a. Authority of the courts vis-à-vis other branches of government

b. Federal court review of state court decisions

c. Congressional control of federal court jurisdiction

II. The Necessary and Proper clause

a. The Necessary and Proper Clause

b. Modes of constitutional interpretation

III. Justiciability

a. Advisory opinions

b. Political questions

c. Ripeness

d. Mootness

e. Standing

i. Taxpayer standing

ii. Nontaxpayer standing

iii. Prudential limitations

IV. The Dormant Commerce Clause

a. Early cases

b. Transportation

c. Incoming commerce

d. Outgoing commerce

V. The Commerce Clause

a. Pre-1937 cases

b. Cases 1937-1940s

c. Cases 1964à

VI. The Taxing and Spending Power

VII. Tenth Amendment Restrictions on the Commerce Power

VIII. The Foreign Affairs Power

IX. Detention of Enemy Combatants

X. Treaties and Executive Agreements

XI. The President and Congress

a. Congressional privilege

b. Executive privilege

c. The legislative veto

d. The line-item veto

e. Appointment and removal power

XII. Substantive Due Process

a. Privileges and Immunities Clause

b. Substantive economic due process

c. Incorporation of the Bill of Rights

XIII. Fundamental Rights

a. Contraception and abortion

b. Abortion-funding cases

c. Roe revised

d. Homosexuality

Introduction to Constitution

Constitution: “The fundamental and organic law of a nation or state, establishing the conception, character, and organization of its government, as well as prescribing the extent of its sovereign power and the manner of its exercise.”

Important events in development:

· Apr. 1775 — first battles of Revolutionary War

· July 4, 1776 — Continental Congress adopts Declaration of Independence

· Mar. 1, 1781 — Articles of Confederation ratified by states

· Sept. 1783 — Revolutionary War ends with Treaty of Paris

· May-Sept. 1787 — Philadelphia Convention writes Constitution

· 1787 – 88 — Federalist Papers published

· June 21, 1788 — ninth state (NH) ratifies the Constitution, making it effective

· Dec. 1791 — Bill of Rights ratified

Constitution as a “handy” thing to have but not even absolutely necessary in a democratic government (England does not have a written constitution).

“We the People of the United States” – intro to Constitution – states giving up a lot of power – saying the Constitution embodies the will of the people.

Important to understand that Constitution written to correct deficiencies in the Articles of Confederation.

– Commerce Clause added because under AoC no way for Congress to regulate interstate commerce

Talking about the Constitutional Convention – controversial issues.

– Virginia and New Jersey plans

o Connecticut compromise

– Regulation of commerce – strong (North) vs. weaker (South – slavery)

– Powers of Congress – end up being only those enumerated


o Wasn’t written by “gods” – was written by politicians.

Vote to ratify the Constitution was actually pretty close. It was very controversial at the time it was proposed.

Hierarchy of the sources of law (pyramid). People (i.e., 3/4 of the states) > Constitution > Federal statutes and common law > State constitutions > State statutes and common law.

I. Judicial Review

Authority of the courts vis-à-vis other branches of government

Marbury v. Madison – judicial branch has final say in interpreting the Constitution

· Background:

o Before leaving office, President John Adams appointed a number of new judges, including several justices of the peace for the District of Columbia. Commissions for these justices had been passed by Senate and signed by Adams but not yet delivered by SoS Marshall by time Adams left office. Jefferson Administration refused to honor the appointments for which commissions had not actually been delivered in time.

§ Justice of the Peace = primary political force in the community…most powerful public office in lives of common people…he was the arresting and arraigning magistrate…staffed county courts and heard major civil cases

o Several of the would-be justices of the peace, including William Marbury, brought suit directly in the Supreme Court. They sought writ of mandamus compelling Jefferson’s SoS, James Madison, to deliver their commissions.

· CJ Marshall’s decision:

o Has right to commission:

§ Marbury and other justices did become entitled to commissions once they had been signed by President. President had authority to make the appointment and he did so, and it was finalized.

o Is a remedy:

§ Ubi jus, ibi remedium – Where there’s a right, there’s a remedy. “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury (p. 3).”

· Aside: But in fact there are legal rights for which there are no remedies (like Marbury here). Opinion is a bit self-contradictory. Logic here is a bit circular – more accurate to say “if there’s a remedy, there must be a right”

§ Distinction between political/discretionary acts (not reviewable by courts) and acts required by law/non-discretionary acts (reviewable).

§ Refusal to deliver commissions = violation of act required by law.

· “[H]aving this legal title to the office, [Marbury] has a consequent right to the commission; a refusal to deliver which, is a plain violation of that right, for which the laws of his country afford him a remedy.” [not in CB excerpt]

· Aside: Arguably political that Jefferson would order his secretary of state to not deliver the commission. Secretary of state acting as agent of the president – seems political.

o P’s desired remedy of writ of mandamus not allowed:

§ § 13 of Judiciary Act provided SC would have jurisdiction to issue writs of mandamus to persons holding office under authority of U.S. – Act explicitly authorized relief being sought by Ps.

· Roth aside: Act does not even purport to give SC jurisdiction over the issue. Rather, statute gives SC appellate powers, and power to issue writs of mandamus.

§ However, Act’s grant of jurisdiction conflicted w/ Art. III, § 2 of Constitution, which grants S.C. original jurisdiction only “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party.

§ Because issuance of mandamus not among types of cases as to which original jurisdiction conferred, Marshall held congressional statute at odds with Constitution.

o *Supremacy of Constitution*:

§ Most significant issue: “[W]hether an act, repugnant to the constitution, can become the law of the land.” [6]

§ Marshall: if SC identifies conflict between constitutional provision and congressional statute, the Court has the authority, and the duty, to declare the statute unconstitutional and to refuse to enforce it.

§ Reasoning:

· Very purpose of written constitution is to establish fundamental + paramount law

· “It is emphatically the province and duty of the judicial department to say what the law is.” Court, not legislature, which makes final determination on whether act of Congress in conflict with Constitution.

· Consider critiques about the legal analysis in this case – not alleging Marshall’s opinion is wrong, just saying this case was really about Marshall and the Court wanting to carve out the Supreme Court’s role – to interpret the Constitution (judicial review).

· If Court doesn’t have jurisdiction it is supposed to drop the case at the beginning, not go through deciding things.

o Principle 1: Jurisdiction is prerequisite

§ “Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.” Ex Parte McCardle

· Case is unusual because the issue of whether the Court has jurisdiction is a constitutional question, not a statutory question. Principles clashing (jurisdiction as prerequisite vs. Supreme Court’s duty to interpret Constitution)

o Principle 2: Avoid constitutional issues

§ “The Court will not pass upon a constitutional question . . . if there is also present some other ground upon which the case may be disposed of. . . . Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter.”

· Almost everyone agrees that judicial review was envisioned by the drafters of the Constitution (Federalist No. 78).

o Can also look to the notes of the ratifiers of the Constitution to determine that the ratifiers assumed there would be judicial review.

· Important to remember that at this time, we don’t have federal district courts – there really was nowhere else to bring the case. (Some people argue it could have been brought in one of the circuit courts – but that’s a more complicated story).

Cooper v. Aaron (1958)

· Issue of who gets to interpret the Constitution – same as Marbury v. Madison

· Background:

o What Brown v. Board of Education held:

§ Brown v. Board of Education (1954) (Brown I)

· “the Fourteenth Amendment forbids States to use their governmental powers to bar children on racial grounds from attending schools where there is state participation”

§ Brown v. Board of Education (1955) (Brown II)

· requires “a prompt and reasonable start” towards compliance with Brown I, and ending segregation “with all deliberate speed”

o Arkansas’s response to Brown:

§ Passed a constitutional amendment, requiring the state legislature to oppose “in every Constitutional manner the Un-constitutional desegregation decisions . . . of the United States Supreme Court”

§ Legislature passed law excusing children from compulsory attendance at racially mixed schools

§ Gov. Faubus sent Arkansas National Guard troops to Central High, to prevent admission of 9 black students

· SC held “federal judiciary is supreme in the exposition of the law of the Constitution,” and that SC’s interpretation of the Constitution is binding on state legislatures and executive and judicial officers.

o “[Marbury establishes] the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution . . . . It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land . . . .” [10]

· Does this case go beyond, or merely mirror, Marbury v. Madison?

o Marbury does not stand for the proposition that nobody else (outside the Supreme Court) has power to interpret the Constitution

· What if the president doesn’t think a holding is constitutional? SC must keep in mind – are people going to obey their orders? In cases like Brown and Cooper – question of whether people will comply.

· After Marbury v. Madison, the Supreme Court didn’t declare any congressional act unconstitutional until Dred Scott.

· Supreme Court not saying it’s perfect – just establishing that it’s at the top of the pyramid. – Rothchild

Federal court review of state court decisions

Martin v. Hunter’s Lessee (1816) – about federalism

· Whether SC constitutionally authorized to review constitutionality of state court decisions

· Background:

o Lord Fairfax held land in Virginia. He died in 1781 and left the land to his nephew, Denny Martin, who was a British subject. The following year, the Virginia legislature voided the original land grant and transferred the land back to Virginia. Virginia granted a portion of this land to David Hunter. The Jay Treaty seemed to make clear that Lord Fairfax was entitled to the property.

· Cases leading up to Martin

o Hunter v. Fairfax’s Devisee (Va. 1810): Hunter wins on merits

o Fairfax’s Devisee v. Hunter’s Lessee (1813): Martin wins on merits; remanded to Va. court

o SC sent an order to Virginia high court in 1813, Virginia high court said SC’s order null and void + SC doesn’t have power b/c statute purporting to grant the power is unconstitutional.

o Martin v. Hunter’s Lessee (1816): The Constitution limits states’ sovereignty

· VA argument:

o if litigation commenced in state courts, then it was up to state court to say whether the state action violated the federal constitution, and US SC had no right to review whatever conclusion state court reached

· 1st issue: § 25 Judiciary Act constitutional? 2nd issue: Is Martin within § 25?

o § 25 – Gives Supreme Court jurisdiction to review a decision by the highest court of a state that…

§ holds a federal law invalid

§ upholds a state law against federal challenge; or

§ decides against a claim predicated on federal law

· 1st issue analysis:

o Part I: Constitution extends appellate power to all “cases.” It is the case then, not the court, that gives jurisdiction.

§ Art. III judicial power – “The judicial power shall extend to all Cases . . . arising under this Constitution, the Laws of the United States, and Treaties made . . . under their Authority. . . .” — Art. III, sec. 2, cls. 1

o Part II: logical and policy arguments

§ Constitution is suspicious of state courts – “The constitution has presumed . . . that state attachments, state prejudices, state jealousies, and state interests, might sometimes obstruct, or control, or be supposed to obstruct or control, the regular administration of justice.” [19]

§ Discussion about the life-tenure system for federal judges as being undemocratic and how that reflects that the Constitution contains many aspects that aren’t purely democratic.

o Part III: intent of the framers

§ Deference to the members of the first Congress – p. 21 middle of the page – “of men of great learning and ability…”

§ Guys who wrote the statute in question also wrote the Constitution – shows that when the court wants to it can defer to the judgment of the first congresses, and when it’s not convenient (as seen earlier in the course) it can choose not to

· Also:

o Sovereignty argument rejected – Constitution cut back upon state sovereignty in numerous aspects.

§ “It is a mistake that the constitution was not designed to operate upon states, in their corporate capacities. It is crowded with provisions which restrain or annul the sovereignty of the states in some of the highest branches of their prerogatives.” [not in CB excerpt]

o Uniformity – Need for uniformity in decisions throughout nation interpreting Constitution. “If there were no revising authority to control these jarring and discordant judgments, and harmonize them into uniformity, the laws, the treaties and the constitution of the U.S. would be different in different states…”

· SC’s holding: Rejected VA’s argument, held Court could review the constitutionality of a decision by a state’s highest court.

Relationship between federal and state sovereignty set up by the Constitution – get that from the overall structure of the Constitution, as well as the history and theory underlying the Constitution (both relevant to interpreting it). There simply isn’t enough text in the Constitution for answers to be apparent.

Review of state court decisions:

· General principles of review:

o Art. III, § 2, provides SC’s appellate jurisdiction may be regulated and limited as Congress shall provide

o Since original Judiciary Act enacted in 1789, SC appellate review of state court judgments has always been limited to the federal questions decided by the state courts

· Martin and Cohens v. Virginia – SC has right to review both civil and criminal cases for constitutionality

· Brown and Cooper are recent challenges to SC’s authority here

· Doctrine of “independent and adequate state ground”:

o How it works: SC may decide only cases presenting “justiciable” controversy – consequence is SC may not render an advisory opinion. To avoid rendering advisory opinion, SC will not review state court judgment if that state decision rests upon “independent and adequate state ground.”

o State substantive law – if state court said judgment based on state law, no revi

o this point been saying the N+P clause is not superfluous…but ends up saying that the clause reinforces Congress’s power/authority

· Emanuel:

o Marshall said not what is absolutely necessary…rather:

§ Famous holding of the case: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” [76]

o Marshall’s holding in case: chartering of national bank valid because it bore reasonable relationship to various constitutionally-enumerated powers of the government (to collect taxes, borrow money, regulate commerce, etc.)

o Effect today: courts will not strike down congressional action so long as Congress has employed means not prohibited by Constitution and rationally related to objectives that are within constitutionally-enumerated powers

o Early 20th century deviation: this principle of deference not followed. Decisions relied on 10th Amendment, generally involved scope of Interstate Commerce Clause.

Modes of constitutional interpretation

· Historical acquiescence: People have acted on the assumption that the statute is constitutional

· Careful legislative consideration: Congress heard strong arguments against constitutionality and still enacted it

· Structural/purpose: The Constitution is meant to impinge on state sovereignty

· Nature of a constitution: It’s not like a legal code

· Textual, no useless verbiage: The Constitution does not contain provisions that are superfluous

· Textual, common usage: Look it up in the dictionary

· Textual/contextual: Compare with Art. I, § 10, cls. 2, which says that states may not impose duties on imports or exports “except what may be absolutely necessary”

· Underlying purpose: The Framers must have intended to allow the government to select the best available means

· Structural/textual: The clause is placed in the Constitution among the powers of Congress, not among the limitations

Moving onto the handout (second part of the case)

· 2 main arguments: (1) federal supremacy (2) democratic accountability

o Federal supremacy

§ Supremacy Clause – Marshall talking about the Supremacy Clause but not using it directly…he’s using it to derive an implication

· “There is no express provision for the case, but the claim has been sustained on a principle which so entirely pervades the constitution, is so intermixed with the materials which compose it, so interwoven with its web, so blended with its texture, as to be incapable of being separated from it . . . . This great principle is, that the constitution and the law made in pursuance thereof are supreme . . . .” [Handout 1]

§ 1. The Constitution makes the federal government supreme over those of the states

§ 2. Supremacy implies the right to preserve oneself from that to which one is supreme

§ 3. The power to tax is the power to destroy; if states had the power to tax the federal government they could destroy it

· “If you can be taxed to death by underlings, you can be destroyed” (Rothchild paraphrase) – Marshall says that’s in conflict with the Supremacy Clause

§ 4. Such a power to destroy is inconsistent with supremacy

§ 5. Therefore, states lack authority to tax instrumentalities of the federal government

o (Get democratic accountability notes from Tomek – was texting Greg about Detroit weekend)

§ “The people of a state . . . give to their government a right of taxing themselves and their property . . . resting confidently on the interest of the legislator, and on the influence of the constituent over their representative, to guard them against its abuse. But the means employed by the government of the Union have no such security, nor is the right of a state to tax them sustained by the same theory.” [Handout 2]

Summing up first 3 cases

· Top ten things to take away:

o Study of constitutional law is the study of how constitution goes about creating govt that can accomplish goals of govt while at same time limiting govts power to do wrong

o Reaction to perceived failures of AOC – failed b/c they didn’t give fed govt enough power

§ Create fed govt stronger than one created by AOC

o Many provisions of constitution resulted from political compromises – was not written by political philosophers

o Broad principles underlying constitution that courts refer to: not limited to text, non-textual things court talks about – principle of separation of powers (no clause about that anywhere – derived from structure); principle of democratic accountability (relied on in above case – don’t look for text to establish these principles);

o Allocation of powers among branches subject to shifts based on political responses of actors

§ Marbury – decision structured in way to allow Court more power than it had before

o Political balance between federal and state governments

§ Hunters Lessee – pushing back by state of Virginia, pushing back by Supreme Court

o Marbury – skilled writer of judicial opinions, can make outcomes seem inevitable. At first glance looks obvious, but upon greater examination, can scrutinize things. (pay attention to dissents – will

o Whole bunch of different interpretive techniques courts will pull out to interpret Constitution

o Constitution different than statute – interpreted differently

o This reading of N+P clause amplifies the power of other clauses


Justiciability doctrine generally comes from Art. III, but there are other limitations courts place on themselves (prudentially-based)

· Voluntary limitation of powers b/c we think that’s the proper role of the courts

Justifications for prudential limitations – limiting justiciability:

· “minimize counter-majoritarian difficulty” – courts not democratic, federal judges not democratically elected – don’t want judicial branch telling legislative (elected/democratic) branch what to do – government officials are accountable to the people

· Don’t want to deal in abstractions – courts should be deciding concrete situations

· Allows courts w/ limited resources to use them efficiently/effectively – more bang for the buck with limiting courts to what they do best

· Promotes individual autonomy to require individual be the one to bring the case – as opposed to allowing third party to litigate an issue

· Separation of powers – prevents courts from encroaching on areas that belong to political branches (legislature and executive)