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

Constitutional Law Outline
Professor Rothchild
I. History and theory of the Constitution
A. What’s a constitution?
1. Sets out the powers and limitation of government
B. Articles of Confederation
1. Loose confederation of states
C. The US Constitution
1. Sets up a representative democracy not a direct democracy
a. Representatives of the people meet and vote on issues.
2. Separation of powers
a. Horizontal
i. Legislature
ii. Judiciary
iii. Executive
b. Vertical
i. Federal government (Article 6 – Supremacy Clause)
ii. Overview of the text
3. State governments (10th amendment – enumerated powers)
a. Article I – Sets up Congress
b. Article II – Executive
c. Article III – Judiciary
d. Article IV – Full Faith and Credit
e. Article V – Amending the Constitution
f. Article VI – Supremacy Clause
g. Article VII – Ratifying the Constitution
h. Amendments
D. Factions
1. Federalist No. 10 written by James Madison
a. Factions as groups interested in pursuing their interests without regard to the interests of the whole.
i. Concerned about majority as well as minority factions.
ii. Madison believes that the Republican form of government is better than direct democracy in dealing with the effects of factions
a) Representatives will do a better job at looking at the long term interests of society.
b) Large, populous nation would mean that no faction could dominate over another.
1. The larger body that you can choose from in terms of representative, the better the representative will be chosen.
E. Checks and Balances
1. Federalist No. 51
a. Tension between the branches prevents any one branch from taking too much power.
b. Internal checks in each branch as well as the checks between branches.
c. Problem: We’re not angels / Solution: Checks and balances
II. Federal Judicial Power
A. Judicial review of federal legislation
1. Marbury v. Madison
a. Three issues
i. Does Marbury have the right to the commission?
a) Yes – commission complete even though it had not been delivered.
ii. Does the law provide Marbury with a remedy?
a) Distinction between political and ministerial actions. If it is ministerial (specific duty assigned by law) then there is a remedy.
b) Mandamus as a remedy
iii. Can the Supreme Court give Marbury the remedy (mandamus) he seeks?
a) Supreme Court has appellate not original jurisdiction in this matter.
b) §13 of Judiciary Act gives original jurisdiction to more than what the Constitution intended.
b. Court has the authority to declare a statute unconstitutional and refuse to enforce it.
i. What is the point of having a Constitution is you are going to allow the legisl

esponse
a) Many instances in the Constitution that limits the sovereignty of states.
b) Article III gives federal courts jurisdiction in diversity cases.
c) Want to ensure there is uniformity in decisions across the states.
C. Federal judicial supremacy
1. Cooper v. Aaron
a. Arkansas failed to comply with a district court order requiring desegration.
b. State legislature said that the Supreme Court’s ruling in Brown v. Board of Education was unconstitutional and they were not going to follow it.
c. Supreme Court’s response – “the federal judiciary is supreme in the exposition of the law of the Constitution.”
i. Supremacy Clause – federal law is supreme to any contrary state law.
D. Methods of constitutional interpretation
1. McCulloch v. Maryland
a. Maryland statute imposes a tax on branch of Bank of United States.
b. Does Congress have the authority to incorporate the Bank of the United States?
i. Maryland argues that Congress only has the powers enumerated by the Constitution.
Court responds – Special nature of constitutional interpretation