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

… 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.
Madison on factions
–         Larger society = limit on power of factions
Articles of Confederation
Established a loose confederation of states not of people as in the constitution (“We the people…”)
–         No significant power 
–         Only amended by unanimous vote of the states
–         No executive created
–         No permanent judiciary
–         Congress has no control over interstate commerce and no power to directly collect taxes.
Makings of the Constitution
VA plan
–         Total re-drafting of the articles of confederation
NJ plan
–         Maintain basic foundations of articles with few changes
Important points of contention
–         Representation of states in Congress
o       VA popular for both house and senate
o       CT Compromise
–         Regulation of commerce
o       Northern states want fed to have lots of power
o       Southern states worried about slave trade
o       Compromise (Congress cannot reg. Slave trade b/f 1808)
–         What powers Congress would have
o       VA fed can regulate anywhere when states cannot (different now, if its not in the Constitution its left to the states).
–         Powers of the executive
o       Constitution calls for impeachment and removal
o       Election of the president was to be electoral vote and not popular vote, designed to be a form of insulation
–         Bill of Rights
o       Originally none
§         Some say no need and by naming others unprotected.
Bill of Rights
Federalists promised they’d be included, Madison introduced them and they were signed in 1791. (First 10 amendments)
Problems with a Direct Democracy
Difficult with large population, devalue rights of minority, hard for citizens to have all the information, people swayed by demigods (brought up in Federalist papers).
Article I Legislative Branch
–         How senators and Representatives are apportioned among the states
–         Role of Congress in impeachment
–         Enumerated powers (17 of them)
–         Necessary and proper clause (# 18)
–         No suspension of habeas corpus
–         No bills of attainder or ex post facto law
–         Limitations on state legislative power (Art. I § 10)
o       States cannot enter into treaties.
Article II Executive Branch
–         Election of Pres. and V.P.
–         Qualifications for office (Art. II § 1)
–         Revised by 12th Amendment
–         Successor-ship
–         Powers of the President (Art. II § 2)
o       Commander in chief
o       Execution of laws
o       Enter into treaties
o       Make appointments
o       Grounds for impeachment of high officials
Article III Judicial Branch
–         Creates the Supreme Court and authorizes Congress to create lower courts (Art III § 1)
–         Cases court can hear (Art III § 2)
o       Cases arising under the constitution, laws and treaties of the U.S., etc.
–         Assigns the SC’S original and appellate jurisdiction
–         Defines the grounds for treason (Art III § 3)
Article IV Relation Amongst the States
–         Full faith and credit to judicial decisions and other official actions of other states (Art IV § 1)
–         States must extradite accused persons to other states.
Article V Amendments
–         Must be proposed by states
–         Must be ratified by ¾ of states
Article VI Supremacy Clause
–         Federal law trumps state law
Federalist #10
Publius (Hamilton and Madison)
Very influential
–         A number of citizens united by some common impulse adverse to the rights or interests of the community.
–         Stem from divergent property holdings
–         How to curtail
o       Separation of powers
o       Larger society (makes it more difficult to create a faction with a majority and minority factions are not a problem)
Madison on pure democracy
–         Factional majority would win all the time
Proposes a republican democracy
–         Makes it possible to refine and enlarge public views by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations
Other ways to prevent tyranny of majority 
–         Bill of rights
Federalist #51
Abuses by government need be prevented
–         Different election means for varying bodies of government
Madision (from Rothchild)-bigger our public is the better the public.
Marbury v. Madision (1803)
Assertion of Judicial Review Power
HELD: The SC is empowered to review acts of Congress and void those which it finds to be repugnant to the Constitution. Judiciary Act’s grant of original mandamus jurisdiction is unconstitutional & void.
FACTS: Marbury (p) and others appointed justices of the peace for D.C. by Pres. Adams and confirmed on Adams’ last day in office. Madison (d), as Sec. Of St., was directed by New Pres. Jefferson, not to deliver. P brought axn for mandamus to SC under Judiciary Act of 1789.
ubi jus ibi remedium
–         If there’s a right, there’s a remedy
The language of the Judiciary Act is inclusionary, not exclusionary and t/f SC may take original jurisdiction over further matters.
Note: A/f Marbury, SC didn’t find another statute unconstitutional until Dred Scott (50 years later)
Federalist #78
Support for judicial review, even in majoritarian society
–         Judicial review doesn’t presume Judicial superiority over the legislature
o       Rather the people are superior to both Judiciary and Legislature
Countermajoritarian Difficulty
–         How to justify judicial review in a majoritarian system
o       Constitution has many countermajoritarian principles
§         ¼ of states can block vote of ¾ for change
§         Electoral College
§         Judicial Review
Martin v. Hunter’s Lessee (1816)
Review of State Legislation
HELD: The SC has appellate jurisdiction over the highest state courts on issues involving the federal constitution, laws, and treaties. (Provided for by Judiciary Act § 25) This power is necessary for uniformity of decisions throughout the U.S.
FACTS: British subject Martin (d) heir to VA estate of Ld. Fairfax, who died in England (1781). Through State legislation confiscating the property of British loyalists, VA had conveyed to Hunter. Hunter’s Lessee (p) brought axn for ejectment. D defended title by virtue of 2 treaties b/t the U.S. and Britain. VA ct of app sustained p’s claim, but was reversed by SC and refused to comply.
§ 25 of the 1789 Judiciary Act
Gives SC jurisdiction to rvw state ct decisions that hold fed law invalid, uphold state law against fed challenge, and decides against claim predicated on fed law.
Cooper v. Aaron (1958)
Enforcing Brown
HELD: States are not free to adjust SC interpretation of Constitution.
FACTS: AR Legislature passes law excusing children from compulsory attendance @ racially mixed schools in response to holding of Brown v. Board of Education
McCulloch v. Maryland (1819)
Scope of Federal Authority
HELD: Even though the Constitution does not grant Congress the expressed authority to incorporate a bank, it can do so under a doctrine of implied powers. When congress is acting in pursuit of constitutionally-specified objective, means chosen merely has to be rationally related to the objective, not “necessary” to the objective’s attainment. Ct will show great deference to Congress’ choice of means to attain constitutionally-enumerated objectives.
FACTS: MD statute taxed any bank not chartered by MD at 2% of the value of the notes it issued, a substantial and discriminatory tax.
Standing and its goals
–         Prevent judiciary from interfering with the coordinate branches
–         Judicial economy
–         Make sure the courts get cases that can be presented and solved with high quality decision-making
The doctrine of standing is sometimes abused to get to the merits. 
Nevares v. San Marcos Consol. Ind. School Dist. (1997)
Allen v. Wright(1984)
Direct Personal Injury Required
HELD: A private person does not have standing to force the government to comply in accordance w/the law when the person can show no direct personal injury resulting from the alleged failure of the government to obey the law. A p’s injury must be distinct and palpable. It cannot be abstract or hypothetical.
FACTS: Wrights (ps) brought a class axn suit on behalf of black school children, claiming that IRS grant of tax-exempt status to private schools that racially discriminate interfered w/efforts to desegregate schools.
DISSENT: (Brennan) P’s injury is clear and causal connection sufficient (14 schools)
DISSENT: (Stevens) Injury and causation, but ct should examine justiciability of case, not standing.
Constitutional Requirements for Standing
(Outlined in Allen)
–         P’s injury must be distinct and palpable and fairly traceable to the challenged action
–         Relief from injury must be fairly achievable from jmt
Prudential Requirements for Standing
–         Can’t raise someone else’s rights
–         No adjudication of generalized grievances more appropriate for other branches
–         Complaint must fall w/i zone of interests protected by law
Lujan v. Defenders of Wildlife (1992)
Public Interest Not Sufficient
HELD: Congress may not convert the public interest in proper administration of the laws into an individual right such that all citizens may have standing to sue.
Neither P, nor any of its members had any injury in fact.
FACTS: D of W (p) brought suit against Lujan (d), Sec. Of Interior, seeking a declaratory jmt that the more recent regulation, requiring consultation only for actions w/i the U.S., incorrectly interpreted the Endangered Species Act.
CONCUR: (Kennedy) Congress must ID what injury it desires to vindicate and relate the injury to the class of persons who are entitled to bring suit.
CONCUR: (Stevens) P does not lack standing, b

crop grown in excess of allotment under Agric Adjustment Act, of 1938. P sued to enjoin enforcement of penalty, claiming application of marketing quota beyond commerce power b/c P used wheat on own farm.
Realism v. Formalism
–         Allows analysis to be extended beyond the mere language of act to take into account legislative purpose of the act (Realistically, what is the act trying to accomplish?)
–         Limits its analysis to mere language of act, rather than looking for ultimate purpose of act (Form of act itself)
Formalist Analysis (Direct/Indirect Affects test)
U.S. v. E.C. Knight(1895)
Manufacturing Not Considered Commerce
Overruled by NLRB v. Jones
HELD: Fact that interstate commerce could ultimately be affected by monopoly insufficient basis for exercise of congressional pwr
FACTS: Sherman Antitrust Act to discourage monopolies, an attempt to prevent American Sugar Refining Company from purchasing 4 companies
Substantial Economic Impact Test
Houston East & West Railway v. U.S. (1914)
The Shreveport Rate Case
Rate-Setting as Commerce
HELD: Congress has pwr under C/C to control intrastate charges of interstate carrier in order to end injurious discrimination against interstate commerce
FACTS: Cheaper fares for routes that stayed in TX. ICC found interstate rates charged out of LA to points in TX unreasonable b/c conditions similar. Ordered P to stop charging higher rates on its interstate lines.
Chamption v. Ames (1903)
The Lottery Case
Using Commerce Power to Regulate Undesirable Activity
HELD: Congress has pwr under C/C to regulate undesirable activity. Power to regulate includes the power to prohibit 
FACTS: D arrested for shipping lottery tix from TX to CA in violation of Fed Lottery Act, which prohibited importing, mailing, or causing interstate carriage of lottery tickets. 
New Deal Era
The Indirect Effect Theory
ALA Schecther Poultry Corp. v. U.S. (1935)
Overruled by Katzenbach
HELD: Congress may not regulate interstate commerce that has only indirect effect on interstate commerce. Sale and consumption of chx intrastate and t/f no longer in stream of commerce 
FACTS: P owned slaughterhouse (NY), received poultry through interstate shipments, and sold poultry to local butchers, where it would be sold to purchasers with NY. (Min wage/Hour standards)
Affectation Doctrine A.K.A.- Direct/Indirect Analysis
Carter v. Carter Coal Co.(1936)
Overruled by NLRB v. Jones
Regulation of Employment Condition
Represents ct’s movement away from geographic approach to direct/indirect analysis
HELD: Congress may not regulate hours, wages, and other employment conditions of a national industry
FACTS: P sued to enjoin D from paying tax assessed under Bituminous Coal Conservation Act, which sought to regulate hours/wages in coal-mines & imposed tax on sales price/fair market value of coal mined by producer that did not comply.
DISSENT: (Cardozo) Advocates Proximity/Remoteness test
Production v. Commerce
–         Commerce has been defined as “intercourse for purpose of trade.” Employment of men and fixing of wages, hours, and working conditions constitutes intercourse for purpose of production, not of trade. The local charter of mining, manufacturing, or farming doesn’t change merely b/c products of those activities move into interstate commerce. The relations b/t employer and employee are local in nature and subject only to local regulation
Direct/Indirect Test
–         Activities relating to production have only indirect affect on commerce. Distinction b/t direct/indirect effects turn not upon magnitude of either cause or effect, but, entirely upon manner in which effect has been brought about
NOTE: The constitution gives Congress power to pursue commercial ends not commercial means. Goal of law was to give workers higher wages which is not a commercial goal t/f not w/n CC power.
Indirect Effect Doctrine = Appreciable Effect
NLRB v. Jones & Laughlin Steel Corp.(1937)
Steel Production
Overruled Schecter & Carter
HELD: Congress may regulate a manufacturer if mfctr’s activity significantly affects interstate commerce. Affecting commerce = burdening/obstructing commerce or the