Select Page

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

FALL 2015
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”- Black’s Law Dictionary
Fundamental and foundational law of a government:
Ultimate authority
More stable than ordinary law
Hard to amend, to do so need 2/3 vote of both houses of Congress and 3/4 of states to agree
Need this because:
People tend to misbehave in absence of law and act on their own self-interests
Useful to have government to make people better off, markets depend governments (property, contracts), need government for public goods that markets are not very good at creating and national defense
Allocation of powers to government as well as limits, structures and rules that prevent government from being a harm to us rather than a benefit
U.S. Constitution:
The Constitution was created as a reaction to the manifest failures of the Articles of Confederation
Many provisions of the Constitution resulted from political compromise
There are several broad principles underlying the Constitution that courts refer to in interpreting it:
Representative government: a system in which people elect their lawmakers (representatives), who are then held accountable to them for their activity within government
Subject to democratic accountability
Democratic accountability: the many ways in which citizens, political parties, and other democratic actors can provide feedback to, reward or sanction officials in charge of setting and enacting public policy
Officials want to be re-elected
Separation of Powers: the act of vesting the legislative, executive, and judicial powers of government in separate bodies rather than a single person, group or committee
Horizontal division of governmental powers
3 branches of government
the sharing of power between national and state governments rather than all in federal government
Vertical division of governmental powers
Federal (national) government and state governments
Constitutional law: the study of how the Constitution goes about creating a government that has enough power to accomplish the goals that the citizens set for it, while at the same time limiting (to an acceptable level) the government’s power to do wrong
The allocation of powers among the branches of the federal government is subject to shifts based on political responses of the various actors.
There are a variety of interpretive approaches, and interpretive techniques, that the courts use in constitutional interpretation.
The nature of a constitution differs from that of a statute, and we must take that into account in interpreting it.
How the Constitution came to be:
April 1775: first battles of Revolutionary War
July 4, 1776: Second Constitutional Congress adopts Declaration of Independence
March 1, 1781: Articles of Confederation ratified by states
Loose confederation of states
First effort at creating the United States of America
September 1783: Revolutionary War ends with Treaty of Paris
May – September 1787: Philadelphia Convention writes Constitution (came about from political compromises)
1787 – 1788 – Federalist Papers published
Designed to sway public opinion in NY – state with close vote
Advocacy documents for delegates to vote yes to the Constitution, not philosophical documents, although the courts often cite them
Often cited in SC opinions
June 21, 1788 – ninth state (NH) ratifies the Constitution, Constitution is effective
December 1791 – Bill of Rights ratified
First 10 amendments
Shortcomings of the Articles of Confederation
Could by amended only with unanimous approval of state legislatures
No executive, no general permanent judiciary
Congress was not granted control over interstate and foreign commerce
Congress had no power to tax
Hierarchy of Sources of Law (from bottom/base to top)
State statutes and common law (contracts, torts, etc.)
State constitutions
Anything in state statutes and common law in conflict with state constitution is void
Federal statutes and common law
U.S. Constitution
Supremacy clause: U.S. Constitution trumps all below when in conflict with it
The people
Need 3/4 of the states to amend Constitution
Judicial Review: The Supreme Court’s authority to review the actions of the legislative and executive branches to determine their constitutionality. Requires courts to interpret and apply the Constitution to acts to determine their validity. The power a federal court has to adjudicate over claims brought before it.
Constitutional Limits on Judicial Review – Justiciability:
Advisory Opinions (Cases and Controversies)
Political questions
Authority of the Federal Courts vis-à-vis Other  Branches of Government
Article VI, §2 – Supremacy Clause:
The Constitution is the “supreme law of the land”
Federal judiciary is supreme in the exposition of the law of the constitution
Supreme Court is the final arbiter of all constitutional issues
Federal action must prevail over inconsistent state action
States cannot interpret constitution in conflict with the Supreme Court
Marbury v. Madison (1803): (Judicial review of legislative acts established)
F: President Jefferson’s Secretary of State, Madison (D), refused to deliver a commission granted to Marbury (P) by former President Adams.
Rule: The Supreme Court has the power, implied from Article VI, §2 of the Constitution, to review acts of Congress and, if they are found repugnant to the Constitution, to declare them void.
 It is the Supreme Court (the Judiciary), and not Congress, who should decide the constitutionality of laws.
*The Supreme Court has the authority to declare a law unconstitutional and to decline to enforce it.
Article III, §2, Clause 2 – The Supreme Court shall have:
Original Jurisdiction (federal courts have the authority to first hear or try cases involving):
Public ministers and consuls
Cases in which the state is a party
Appellate Jurisdiction: federal courts may also hear other non-original jurisdictional cases that come to court by appeal
*Marbury v. Madison also illustrates that a judge who is a skillful writer can make it appear that a result is inevitable, when in fact there are a lot of hidden assumptions and debatable determinations that go into making a case come out as it does.
Cooper v. Aaron (1958): (Federal Judicial Supremacy)
F: The Governor and Legislature of Arkansas refused to obey a federal court order to desegregate the public schools in Little Rock based on the Brown v. Board of Education case pending f

possible for S.C. to have review over some cases/ cases it doesn’t want S.C. to rule on
Article 1, §8, cl. 18: Necessary and Proper Clause
Grants Congress the power “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 U.S.”
There is a very BROAD meaning with this clause
Congress can make all laws that may be “necessary and proper” to execute its other, enumerated powers
The Necessary and Proper Clause
McCullough v. Maryland (1819): (The Doctrine of Implied Powers)
Facts: M’Culloch (D), the cashier of the Baltimore branch of the U.S. Bank, issued bank notes in violation of a Maryland (P) statute providing that no bank, without authority from the state, could issue bank notes except on stamped paper issued by the state.
(1) Certain federal powers giving Congress the discretion and power to choose and enact the means to perform the duties imposed upon it are to be implied from the Necessary and Proper Clause.
(2) The federal Constitution and the laws made pursuant to it are supreme and control the constitutions and laws of the states, and cannot be controlled by them.
(1) Even though the constitution does not expressly grant Congress the power to incorporate a bank, it can do so under the doctrine of Implied Powers.
(2) Because the Constitution is supreme over state laws, the states cannot apply taxes, which would in effect destroy federal legislative law. Therefore, Maryland's state tax on the U.S. Bank is unconstitutional.
R: The powers of the government are limited, but the sound construction of the constitution must allow to the national legislature that discretion, w/ respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. The necessary and proper clause is placed in the constitution of the U.S. among the powers of Congress and its terms purport to enlarge the powers vested in the government. “Necessary” is not a limitation, but rather applies to any means with a legitimate end within the scope of the Constitution.
*The broad interpretation of the Necessary and Proper Clause in M’Culloch v. Maryland means that each of the powers of the federal government in the first 17 clauses of Article I, §8 is amplified:
“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 consistent with the letter and spirit of the constitution, are constitutional” (78)