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Constitutional Law I
Wayne State University Law School
Weinberg, Jonathan T.

How Constitution Created
Country first created the Articles of Confederation, ratified in 1781
Was basically like UN Assembly, each state treated like own country
Problems – Who pay for protection? Each state run differently. Commercial interests hurt. Couldn’t be revised without everyone saying yes, Rhode Island won’t.
Congress authorizes convention
Creates Constitution, says only need nine of 13 states to ratify (two were against)
Prof: this one of the situations history written by victors
The Constitution of the United States
Signed in 1787
Article 1: Congress
–          Section 1 – All legislative powers vested in Congress
–          Section 2 – representation, 3/5ths of other persons (slaves)
–          Section 6 – Can’t hold separate offices
–          Section 7 – How bills become law
–          Section 8 – enumerated powers: taxes, provide defense and welfare of US, regulate commerce, coin money, declare war and captures, raise and support armies, suppress insurrections and repel invasions, make laws to execute enumerated powers. To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
–          Section 9 – Taxes on importation of persons (slaves) and immigrants until 1808, habeous corpus not suspended unless rebellion or invasion of public safety, no bill of attainder (nullify civil rights) or ex post facto (retroactive) laws shall be passed, no tax on stuff between states, states not have border taxes.
–          Section 10 – States can’t coin money but can’t use anything but gold or silver required, states can’t pass bill of attainder or ex post facto, or make law impair the obligations of contracts, states can’t enter agreement or compact with another state
Article 2: President
–          Section 1 – Oath to protect the constitution
–          Section 2 – Pres commander in chief
–          Section 3 – Recommend measures to Congress, can adjourn Congress, take care that Laws be faithfully executed
Article 3: Judges
–          Section 1 – judicial power of US vested in one supreme court
–          Section 2 – Judicial power extends to all cases of constitution, laws of the US and jurisdiction issues. SC has original jurisdiction in cases where state is a party. Trial shall be by jury, and within state where crime was committed (but if not within state, Congress may say where)
Article 4: States
–          Section 1- States have to respect each other’s acts, records and court rulings.
–          Section 2 – Citizens treated the same in each state. If slave or servant in one state and escape, have to be returned to that state.
–          Section 3 – Congress can make and break all rules about US territory and property
Article 5: Making sure can’t change article 1, section 9
Article 6: No religious test shall be required as qualification to office or public trust
Article 7: Only nine states needed to ratify
Bill of Rights
1st Amendment – speech/religion
2nd Amendment – guns
3rd Amendment – quarter of troops
4th  Amendment – unreasonable search and seizure
5th Amendment – No double jeapordy or self incrimination, can’t deprive of life, liberty or property without due process of law, can’t take property without just compensation
6th Amendment – Speedy and public trial by impartial jury in same state
7th Amendment – Trial by jury
8th Amendment – No excessive fines, no cruel and unusual punishments
9th Amendment –  The enumeration of rights in constitution shall not deny or disparage other rights
10th Amendment – The powers not delegated to the US by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
Rest of Amendments
13th Amendment – Section 1 – No slavery in the US or places under US jurisdiction,
Section 2- Congress shall have power to enforce with laws
14th Amendment – Section 1 – All persons born or naturalized are citizens. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens, nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.
                                Section 2 – If people who can vote are blocked by a state, that state loses representation
                                Section 4 – all debts valid, but US and states not pay for resurrection or slave issues
                                Section 5 – Congress shall have power to enforce with laws
15th Amendment – Section 1 – Voting shall not be stopped by race, color or servitude
16th Amendment – Congress can collect income tax
24th Amendment – Section 1 – voting for upper offices can’t be denied by a poll tax
                                Section 2 – congress can enforce with law
26th Amendment – Section 1 – voting at 18
How to examine a constitutional argument
First – Where does the power originate from?
Marshall’s standard forms of constitutional argument, taken from Marshall in McCulloch v. Maryland (written by Philip Bobbitt)
1.       Appeals to text
a.       What the actual text says, how it’s worded.
b.       What necessary means, for example
                                                               i.      Ambiguity: a word or expression is ambiguous if it admits of two or more rather different meanings. Usually undesirable in legal documents. i.e. natural born citizen.
                                                              ii.      Vagueness – involves marginal indefiniteness in the meaning and application of words. What is a middle-aged person? 40? 50?.
c.        As in Youngstown, the majority paid too much attention to the text (textual) and was not prudential. Bobbitt says a prudential argument I a constitutional argument actuated by the political and economic circumstances surrounding the decision. Prudentialists generally hold that in times of national emergency even the plainest of cons limits can be ignored.
2.       Constitutional structure
a.       How the government is supposed to work, i.e. three branches and what their duties are.
b.       Constitutional interprestation bases on “inference from the structures and relationships created by the constitution”
c.        Marshall says if have government working, those workings are proof need more than just constitutional words
d.       what focus on when consideritng constirttuion – drafters, language, etc. see contested diff cases take diff approaches, dredd scott v blaisdell, still contested, scalia and alito in heller v mcdonald, our touchstone in interpretation has to be origional intent and application, how was when enacted, other modern cases reject that, casey hard to reconcile, frmers of 14 amendment didn't think imposing limits on abortion, or borwn v board, framers did not think they were challenging constitutionality of segregage public schools, got a variety of diff approaches, all of these keep on being picked up and rejeced (have these written in sub)
3.       Prudence/consequences
a.       What are the consequences of a decision, and do they matter?
b.       Article I is a provision “made in a consttituion intended to endure for ages to come, and, consequently to be adapted to the varios crises of human affiars.”
c.        Judges are often concerned with how their decisions, even if otherwise justified, will play int eh political arena
d.       Prudential considerations are never very far away from judicial practice, because constitutional questions often involve some of the most politically heated issues of their time
e.        This part allows for changes in the constitution
f.        As in Youngstown, the majority paid too much attention to the text (textual) and was not prudential. Bobbitt says a prudential argument I a constitutional argument actuated by the political and economic circumstances surrounding the decision. Prudentialists generally hold that in times of national emergency even the plainest of cons limits can be ignored.
4.       History
a.       What was going on during the making of the rules being argued
5.       Precedent
What’s already there
In Marshall’s case, the incorporation by Congress in 1791 of the First Bank
There can also be precendents by the Congress, the President, and state and local government officials
“The deference that is due to the determainto of former judgments is due not to their wisdom, but to their authority.” – Jeremy Bentham (?)
Some argument over this. Some believe can look at precedent, but must also do job of evaluating themselves. “It is the Constitution which he swore to support and efend, not the gloss which his predecessors may have put on it.” – Douglas.
Business supports – individusals rely on precendent to structure their commercial activity – Marshall
g.        Provides measure of stability
6.       National ethos
a.       Wheteher an interprestation is faithful to the meaning or destiny of the country, its deepest commitments or some important aspect of national character.
b.       Grow into bold, great country
                                                               i.      McCulloch’s second question about Maryland taxing bank, and Marshall’s answer
First issue – federalism – what sort of restraint on federal gov do something with the states. Which gov – can this be done by fed gov, or state.
Second issue – separation of powers issues. Lets assume an action gov can take, and assume fed, questions raised (with Lincoln), which branch? Pres? Legislation?
Third issue – lochner – actions gov can’t take at all. State of ny can’t enact hours for bakers, deprives bakers due process.
Substantive due process – applies to fundamental rights
Zablocki, Meyer, Bowers, Griswold, Washington v. Harper, Cruzan, Roe
14th Amendment equal protection clause – someone getting treated discrimination
Types of Judicial Review of Laws/Statutes – started with Marbury v. Madison. Can review cases dealing with federal questions, in which a state is a party, appeals, writ of cert.
1.       Rational Basis Test: (Caroline, Lee Optical) A test employed by the court to determine the validity of a statute in equal protection actions, whereby the court determines whether the challenged statute is rationally related to the achievement of a legitimate state interest. Here, the burden is on the person attacking the law that it does not have a rational basis. When the court feels that the legislation impinges on a fundamental right, the burden is on the government to show a compelling governmental interest which supports the legislation. In cases challenging the constitutionality of legislation affecting ordinary commercial transactions, the SC will apply the rational basis test.
Famous Footnote 4, Caroline Products, Chief Justice Hughes, just dicta. But …being very deferential, are there sets fo cases less deferential, be stronger? Judge stone says three classes be more assertive: on its face specific prohibition of constitution such as bill of rights (like search and seizure or establishing religion), when legislature enact something that goes against the will of the people (breaks political process, such as right to vote), and statutes against minorities or prejudice against them (majority vs. minorities, like internment cases?). This not law…but does Judge Stone have it right? Not protect reproductive rights
Prof: see shift from economic regulation, stay away from it, let legislature do it, but Footnote 4 – may be legitimate to get involved to protect democratic nature of political process. Orginary legislation need not have more than rational basis. But turn that around ordinary legislation need to have some justification.
Footnote 4 suggests that protecting democracy by protecting democratic civil rights and certain “discrete and insular” minorities formed a new justification for judicial review of legislation.
The Court applied minimal scrutiny (rational basis review) to the economic regulation

ays then constitution shouldn’t be too limited. For example, the post office is in constitution, but not how it works. Must have implied powers. If believe for post office, then must for bank.
Jefferson worried about government having too much power, says states should be able to overturn court.
Pretext argument: “Should Congress, in the execution of its powers, adopt measures which are prohibited by the Cons.; or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted by the government; it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land. (also Dagenheart, Bailey v. Drexel Furniture cases)
Second half of McCulloch case – can Maryland have power to extablish tax against US bank?
What does text of constitution say? – NOTHING, says prof.
Marshall says can’t because the constitution and the laws made in pursuance thereof are supreme, that they control the constitution and the laws of the respective states, and cannot be controlled by them. Power to create and power to destroy, incompatible, power to tax something power to destroy, hostile to federal gov power. Can’t tax more authoritative power, because can’t destroy more authoritative power.
No reliance on text, precedent, but strong on Marshall what sort of structure of gov constitution creates, for national ethos.
Prof question: we coequal sovereign, not trying to overstep state bounds, it is in our area. What wrong with that argument? My answer – because was unfair tax on only the US bank.
Does Maryland have power to tax? Marshall says not in constitution, state can’t do anything incompatible with constitution. Power to tax is power to destroy, so constitution is in charge. Can vote people in and out of office in Maryland, but Maryland can’t tax people in Georgia…by taking fed bank taxing people outside borders.
Interpreting “necessary” language – Uncertainties of meaning
Flag example
Nothing in consttituion about creating national flag, or any power could attach having a flag to. But every nation needs a flag. Does that mean flag is unauthorized because constitution doesn’t give congress the power to designate US flag? Inherent power – countries get to have flags, consttition not in the way.
Borders example
Other way to look at it, to what extent does gov able to enact immigration laws – how let people or not into the country. IN the early US states could restrict borders. Not in the constititon about immigration, but does allow how create citizen. Court in 1889, power to control boardres part of being a country – every country has that.
Louisiana Purchase example
Negotiations to buy New Orleans, Napoleon says can buy entire mid-part of the country, would double the size of the country. Does the fed gov have power to do this? Jefferson says fed gov does not hav power to add. Nothing in it to authorize purchase territory, or incorporate it into the US. Also if buy territory, change who are as a nation.
But Jefferson rationalizes and says go forward with purchase, Jefferson decides he keep quiet about it, too good a deal to pass up.
Judicial Review/Supremacy Clause
Judicial review: The authority of the courts to review decisions, actions or omissions committed by another agency or branch of government. There is no provision of the Cons that explicitly authorizes the SC to review the constitutionality of acts of Congress, not sure those who framed would agree to it. Hamilton said before Cons was signed that where the will of the people (Congress) is opposition to the Cons, that the latter should prevail, that SC ought to “regulate their decisions by the fundamental laws.”
Counter-majoritarian: That the power of the court or body may be against the power of the people, as in judicial review. See Hamilton, above, but also consider that Congressmen, after being elected, are also in that situation themselves, cannot see all the “hands raised in vote”. Policy at the national level is the “outcome of conflicts, bargaining and agreement among minorities; the process is neither minority rule nor majority rule, but what might be better called minorities rule, where one aggregation of minorities achieves policies opposed by another aggregation.” – Prof. Robert Dahl, Decision-Making in a Democracy article. He says the rate of change of judges makes judicial review okay
Lewis H. LaRue
Original jurisdiction: The power of a court to hear an action upon its commencement.
Appellate jurisdiction: The power of a higher court to review the decisions of lower courts.
Writ of mandamus: A court order issued commanding a public or private entity, or an official thereof, to perform a duty required by law.
Supremacy Clause: Defer to Congress when possible, but when the constitution and statute conflict, statute loses. Supremecy clause: constitution wins.