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


I. Objectives: Understanding the framework & function of the SC in a constitutional system.
A. Understanding Con. principles & doctrine.
1. Exam: state doctrine, apply doctrine to the facts,
B. Function: to say what the law is, to define the meaning of the Con.
C. SMJ is limited to cases & controversies.
1. So justices are more likely to ask about facts & impact of deciding a certain way.
a) So abstract constitutional doctrine isn’t their main concern.
b) So first & foremost Con. is a C.
2. Yet, it is Supreme, & this means it can look to things other than precedent (w/c is untrue for other lawyers & Cs).
a) So, lawyers use the Con. to argue their position.
b) Show the impact of a positive decision on society.
D. Framework: judges are all operating w/in framework of applying existing doctrine: they all argue using precedent, just like lower Cs.
The Constitution
I. Con. is from the 18th century—must view document from framers perspective.
II. What does it do?
A. Background:
1. Declaration of Independence is fist Con. document.
a) 13 colonies are free, sovereign st.s.
b) So st.s don’t rely on the Con. as the sources of their power.
c) So St.s begin w/ sovereignty, & can exercise all powers, except those limited.
2. Articles of Confederation failed b/c FG too weak & couldn’t function.
B. First: allocate power between branches.
C. Second: separation of powers between branches.
1. Conflict between branches usually arises in wars, b/c pres. asserts power as commander & chief.
D. Third: limitation FG & StG powers, to protect individual rights.
1. Some of these are done explicitly in the Con.
a) Art. 1 § 9. During civil war
b) Art. 9 §3: bill of attainder—specific act of L that declares an act illegal—are forbidden by st. Gs.
c) Art. I §10: …
d) Art. III §3—treason.
e) No ex. post facto laws.
2. Article VI, Sec. II: in conflict between st. & F. power, F wins.
a) Art. 10 does put some limits on st.s.
b) Can issue treaties, can’t coin money.
E. The Bill of Rights:
1. Founders believed that the structure of CG alone would protect individuals, but st.s wanted a bill of rights before ratification.
2. No law abridging freedom of speech.
3. Individual rights limitations on the CG. These are sweeping.
a) 2nd Amd. militia consisted of all able bodied men, each of w/c had a gun.
(1) There was a federalization of the st. militia. National Guard is st. militia.
4. Considered part of Con. b/c promulgated contemporaneously w/ Con.
F. War-time (Civil War) Amendments
1. Due process incorporates major provisions of

rrules precedent.
II. Value judgment: Cs determination refers to what values should be implemented by a particular Con. provision.
A. Good lawyers argue to win, w/o regard for ideology.
1. Using a prec. that you don’t agree w/ is (assuming that that they are diametrically opposed) the strongest argument that you can make, b/c it is their argument.
2. When the C changes, clarifies or propounds new doctrine, this gives a lawyer the ability to challenge.
B. Individual liberty has been continuously expanded.
1. Laurence v. Texas: “Law against gay & lesbian persons.”
a) This is a misconception of the RS people promoted these laws.
2. Roe: Could have said: st. has a compelling interest in protecting human life from the moment of conception. Woman’s autonomy doesn’t extend to the life that’s growing w/in her. PR: it is more important to protect an individual’s interest over st. interest.
a) Completely disregard for moral, mental, & physical well-being of women.
Physical: many complications with abortions, yet we have smoking laws.