Contents

1. US Constitution.................................................................................................... 2

2. Judicial Review..................................................................................................... 2

3. 4.

2.1 Review Legislation......................................................................................... 2

2.2 Review state court decisions based on federal law........................................4

The Scope of National Power................................................................................ 4

3.1 Commerce Clause.......................................................................................... 5

3.2 Taxing Power.................................................................................................. 6

3.3 Spending Power............................................................................................. 7

3.4 Necessary and Proper Clause.........................................................................7

3.5 National power and state government - 10th Amendment.............................7

3.6 Dormant Commerce Clause...........................................................................9

Fundamental rights............................................................................................ 10

4.1 14th Amendment Privileges and Immunities Clause.....................................11

4.2 Modern SDP and Economic Liberties............................................................11

4.3 Modern SDP and Fundamental Rights..........................................................12

4.3.1

Contraceptives...................................................................................... 12

4.3.2

Abortion................................................................................................. 12

4.3.3

Sexual activity and sexual orientation...................................................13

4.3.4

Right to die............................................................................................ 13

4.3.5

Right to bear arms.................................................................................14

4.4 5.

6. Fundamental Rights Summary.....................................................................14

Equal Protection Clause...................................................................................... 16

5.1 Basic equality- RBR...................................................................................... 16

5.2 Race - SS...................................................................................................... 17

5.3 Gender - IS................................................................................................... 19

5.4 Alienage - SS................................................................................................ 19

5.5 Illegitamacy -SS........................................................................................... 20

5.6 Homosexuality............................................................................................. 20

5.7 Wealth/ Income - RBR.................................................................................. 20

5.8 Age - RBR..................................................................................................... 20

Fundamental interest......................................................................................... 20 1

7.

14A SS5................................................................................................................ 20

1. US Constitution I.

II. III. IV.

V. VI. VII.

Art. I: Created Congress a. Sections 1-7: Set-Up Congress; elections; terms; how enact statutes b. Section 8: Enumerates Congress's Powers i. Spending clause ii. Taxing clause iii. Commerce clause

1. Dormant commerce clause iv. N&P clause c. Section 9: Creates various Constraints on Federal Govt. d. Section 10: Created various Constraints against state Govt. Art. II: Specifies rules for electing President Art. III: Federal Judiciary Art. IV: State Relations a. Section 2: Privileges and Immunities limitations on states, nondiscrimination clause Art. V: Amendment Process Art. VI: Supremacy Clause/Oaths Bill of Rights: 1-10 amendments and amendments 13-15: limit Congress's power (& the states). a. 5A due process limitation on FG b. 10A FG=enumerated power, commandeering. c. 14A: PI (narrow, against State Government as US citizen), DP limitation on State, EP

2. Judicial Review

2.1 Review Legislation VIII. IX. X.

Under Marbury v. Madison, SC has the power to review the constitutionality of federal executive actions and federal statutes. Veto power and appointment of an office are entirely within the president's discretion and cannot be judicially reviewed. Where the executive has a specific legal duty to act or refrain from acting, the federal judiciary can provide a remedy, including a writ of mandamus a. specific, particular duty("Safe Product Act" probably not a specific duty) 2

XI.

XII. Issue: Two readings of Judicial Act a. Marshall's reading: SC has OJ in any case where P seeks writ of mandamus b. SC has power to issue mandamus in cases otherwise within its Jurisdiction. Under this reading JA would not be unconstitutional Constitutional Issue 1: Under Marshall's reading, is JA, which gives OJ to SC to hear this case, consistent with the Constitution?
a. Art. III SS 2 Cl. 2 SC OJ and AJ: i. OJ: Trio Cases= Ambassadors, other public Ministers and Consuls, and those in which a State shall be a party ii. AJ: all other cases iii. Two reading of Cl. 2

1. Floor and Ceiling, Marshall's reading: SC has OJ only over Trio Cases

2. Floor only: SC has OJ over Trio Cases, can also have OJ over other cases In all cases... the SC Reading Art. III as a Public policy: Role "shall" have OJ whole of SC to interpret Constitution

Floor and Ceiling

Marshall's view: affirmative words are negative of other objects other than those affirmed.

Yes, Marshall's view: If OJ can be supplemented, not necessary to enumerate OJ.

Floor only

Yes, the Constitution not does not say that SC cannot have OJ over other cases.

Art. III specifies that Congress can change SC's AJ. As for OJ it's not clear

XIII. Yes, prevent SC from having too many unmeaningful cases

Constitutional Issue 2: If not, does the court have the power of judicial review? Argument for judicial review: a. Constitutional theory argument i. constitution is supreme vis a vis statutes

1. Written constitution: Power of the legislation is limited and defined by the written constitution. These limits are meaningless unless subject to judicial review. a. Counterargument: other countries with written constitution do not grant judiciary the power to invalidate conflicting statutes.

2. original understanding at the time of the framers

3. theory of popular sovereignty: people have an original right to establish fundamental principles in the Constitution

3 ii. Institutional allocation: it's the judicial duty of SC to interpret the law, to invalidate statutes as unconstitutional (even if Congress thinks otherwise)

1. Counterarguments: a. SC can interpret the law without deciding its constitutionality. b. Clear/ unclear violation: those examples (tax, duty, federal bill of attainder) are clear violation of Constitution, but JA's violation is not as clear. b. Arising under jurisdiction of SC: Art III grants SC the JP over all cases arising under the Constitution, this implied JR i. Counterargument: SC's power to decide cases under the Constitution still could have significant content without the power to invalidate federal statutes. E.g. SC can still apply federal statutes, and evaluate the constitutionality of state enactments. c. Oath. Counterargument: everyone has Oath d. Supremacy Clause: (Art. VI) Confirms the argument made in constitution theory i. Counterargument: Constitution should control over all other laws, this does not mean judiciary has the power to invalidate laws. Congress can supervise its statutes by itself.

2.2 Review state court decisions based on federal law I.

II. Under Martin v. Hunter's Lessee, the Supreme Court may review state court opinions, but only to the extent that the decision was decided based on federal law. Rationale: a. prevent state attachments, prejudices. b. Ensure uniformity c. Art. III grants SC the power to review arising under "the Law of the United States" d. Parity between P and D: both get to choose a court

3. The Scope of National Power I.

Theory of enumerated federal power a. Congress may act only when there is express or implied authority to act in the Constitution. i. 10th amendment: US is a government of limited power ii. The fact of enumeration in Art. I indicates that the government has limited power b. Constitutional requirement for federal legislation i. Is the legislation within at least one of the enumerated powers, i.e. A. I SS8?

4 II.

III. ii. Does the statute violate some constitutional constraint, in particular an individual right, i.e. Amend. 1-10, A. I SS9?
State power a. Only the state has police power that allows the state to adopt any law not prohibited by the constitution Reasons for federal regulations (instead of State regulation) a. interstate externalities (pollution) b. state protectionism c. unfair competition: State race the bottom "Prisoner's dilemma" d. uniformity e. effectiveness in federal enforcement

3.1 Commerce Clause I.

II. III.

Art. I SS 8 "Congress shall have the power... [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes...." Why is CC the main source of federal regulatory power a. Cl. 1 is not a general welfare power, so Congress needs to regulate this issue through the commerce clause. i. A. I SS8 cl. 1

1. Wide reading: Provide for general welfare (if cl.1 is wide, the rest of A. I is meaningless)

2. Narrow reading: tax and spend so as to provide for the general welfare Varying views regarding the Commerce Clause a. Initially, Gibbons, the SC adopted an expansive view of the scope of the commerce clause. i. The power to regulate interstate commerce is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed by the constitution. ii. Activity outside commerce power if it's an intrastate activity, AND does not extend to or affect other states. iii. Activity inside commerce power if it's interstate activity, OR affects other states. b. Pre-1937 cases: The predominant approach during the early twentieth century used formalistic doctrine to limit the power of the federal government to regulate under the Commerce Clause.

Direct effect (formalistic approach) Proof: text of CC No manufacturing

Functional approach (affect interstate commerce) (Adler) Permissible where there are some good reasons for federal regulation. Proof: 5

Hammer 1918 p. 177, child labor Schechter 1935 p. 196, chicken

Original intent The very creation of federal body means it has the duty to regulate things with good reasons Regulate means affect, change, not just directly control Gibbons p. 173, water license Shreveport Railway Rate case p. 191 intrastate activities that affect interstate commerce Stafford v. Wallace p. 192 stream of commerce idea

Carter coal 1936 p. 198, coal mining Champion p. 193 lottery case (only case where government wins) EC Knight p. 190 suger manufacture c. 1937-1995: more expansive view of the Commerce Clause i. National Labor Relations Board v. Jones & Laughlin: Congress can regulate any activity that has a significant effect on interstate commerce whether direct or indirect. ii. United States v. Darby: Fair Labor Standards Act. Substantial effect test: Congress's power to regulate interstate commerce extends to those intrastate activities that affect interstate commerce. iii. Wickard v. Filburn: Aggregation principle: does the class of activities regulated have substantial effect on interstate commerce?
d. After 1995, since Lopez, SC struck down some federal statutes. The modern CC is: i. Congress may regulate under CC (Lopez):

1. channels of interstate commerce (Direct effect);

2. instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities (stream of commerce: destruction of aircraft, theft from interstate shipment, Southern Railway); and

3. activities that have a substantial effect interstate commerce: substantial effect(Darby) + Wickard aggregation + rational basis (Raich) a. rational basis for finding such activity affects commerce+ commercial: likely to uphold b. rational basis + noncommercial: more suspicious ii. For non-commercial activities, may regulate if

6 1. Jurisdictional element: no possession of gun that has moved interstate (Atlanta motel, restaurant purchase food from interstate)

2. Essential part of a statute that regulates economic activity

3. findings that the activities affect interstate commerce

4. Activities rather than inactivities (Sebelius)

3.2 Taxing Power I.

II. III.

IV. Art. I SS 8 "Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States, but all duties, imposts and excises shall be uniform throughout the United States. " Congress has broad authority to tax and spend for the general welfare. (Butler) Objective test: do not examine subjective motive a. Does it really raise some revenue? Very lenient test i. Regulatory tax rather than revenue is unconstitutional (Bailey, Wallace, Constantine) b. Are provisions extraneous to any tax need?
Specific constraints on taxes: a. direct taxes (limited to real property tax) must be apportioned. Art. I
SS9, Amendment 16 b. taxes must be uniform

3.3 Spending Power I. II.

III. Art. I SS 8. Broad power (Butler) Test: restrictions to the spending power: a. the exercise of the spending power must be in pursuit of the general welfare. (defer to the judgment of Congress) = is there good reason for federal spending (Adler)?
b. if Congress desires to condition the State's (NOT individual's) receipt of federal funds, it must be clear. (Individual's condition can be ambiguous). c. Germaneness. Related to the federal interest in particular national projects or programs. Assign a purpose to a statue, and test if the spending is related to this purpose. d. Other constitutional provisions may provide an independent bar to the conditional grant of federal funds. Coercion can be found if a. When there are some kinds of independent entitlement (take back money already have), but future funds are not independent entitlement b. Incentives are not coercive

3.4 Necessary and Proper Clause I.

Five part test in Comstock 7

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