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Constitutional Law Outline

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? Constitutional Innovations in response to AoC and to previous British rule o (1) People are sovereign o (2) Limited powers that are delegated o (3) Divide power so can't abuse
? Who?
o People are sovereign, not states, or rulers o Limited government for us, by us o "We the people" - in opposition to the king o We originally was white male property owners until 14A, 24A etc. o Slaves 3/5 people
? Structure o Structure of government
? Articles I, II, III: set up three branches
? Legislative was considered most important and powerful because represented the people
? Today executive has become quiet powerful; and judicial more powerful
? Article IV: sets up relationships among states
? Article V: amendments
? Article VI: constitution supreme o Amendments
? Bill of Rights (BoR)
? Reconstruction Amendments (13A, 14A, 15A)
? Progressive Amendments (XXX)
? Major Relationships o (1) Between branches of federal government o (2) Between federal government and state government o (3) Between government and individuals
? Conflicts in drafting of the constitution o Big states vs. small states ? Article V equal suffrage in senate cannot be amended o Slave states vs. free states ? cannot end slavery until 1808
? History of the Court o Marshal Court period: aggrandizement of federal and SCOTUS power o Taney Court: (1836-64) continues aggrandizement, Dred Scott o Civil War: constitutionality of succession; reconstruction amendments; protection of African Americans; then becomes more conservative o Progressive Era: response to industrialization; Lochner Era o Depression/New Deal/New Deal Court: regulate economy more o Warren Court: civil rights, etc. o Berger Court: conservative court, but also expanded women's and reproductive rights o Rehnquist & Roberts Court: more conservatives Themes:
? Constitutionality considerations: three questions o What? - law, structure of government, just the text, rhetorical, principles o Who? - SCOTUS, legislative, executive, all take oaths to uphold constitution, the people, lawyers - who trumps?
o How? - expansively, context of other clauses, structure of constitution, outside sources
? Three ways of looking at the questions:

?o Legal doctrine: (i) holdings; (ii) evolution of cases; (iii) comparison/analogous cases o History: the constitution is a historically contingent cultural project o Theory: ?? federalism, counter-majoritarianism, natural law, separation of powers, dead hand Types of interpretation o Textualism
? Problems of indeterminacy, and even if determinant may give bad answers o Historical
? Historical practice: defer to interpretations of other branches, etc.
? Originalism: go with original intention, original public meaning; recommitment
? Leads to stability
? Problem of indeterminacy
? Problem that history is conservative and privileges status quo o Discretion o Policy/Consequentialist
? Dangerous!
? More or less determinate o Document
? Uses the "what" to answer the "how"
? Legal principles - read expansively o Representation (Democracy) Reinforcement Theory / Political Process Theory
? Courts should police the political process to make sure it is working o Living institution o Natural Rights Theories of striking a balance in government o Public virtue: trust officials to do what's right o Divided power: divide power in three ways
? (1) Checks and balances: each has particular powers, and self-interest/ambition of each branch will have them balance
? (2) Two legislative bodies, w/ only the house popularly elected
? (3) Federalism: between national government with enumerated power, not residual power, and states which have retained power but are not sovereign o Countermajoritarian virtue v. countermajoritarian difficulty
? Non-democratically elected panel striking down laws made by democratic process?
? Is it a good thing that justices are insulated from the political process?
? Responses:
? Constitution is the will of the people o But intertemporal difficulty: Should we be tied to the mast of a document written and ratified in the 1780s? Are precommitments good because they foster autonomy in the future (free speech during war time)?
? But it was only white men!
? Dead hand problem
? Legislature isn't that democratic o Agency problem o Public choice theory: only responsive to those who will elect them, not the majority
? Rich v. poor; some interests easier to organize
? Judicial isn't that undemocratic


o Agency problem with SCOTUS interpreting the will of the people because rarely mechanical and more often judgment call o Approved by senate
? Used to reject 1/4 of judiciaries appointments, now only 4 in the 20th century o Impeachment possible o Congressional control over courts' jurisdiction o Judges not representing some small geographic area like legislators o Judiciary must rely on others o Power restrained because doesn't have the sword or the purse

Ways to think about law o Formalism: law as logical, gapless, internally coherent system and answer legal questions using logical deduction
? Law = math/science o Realism: most cases present hard questions by balancing interest of parties and ultimately deciding arbitrarily I. The structure of Government
? (A) The Role of Judicial Review o Marbury and Martin establish constitution as interpreted by SCOTUS
? Does these leave room for departmentalism: other branches interpreting constitution?
o Marbury v. Madison (1803) (p. 25) CJ. Marshall
? FACTS: TJ's Sec. of State Madison did not deliver Marbury's Justice of the Peace commissions from the end of Adam's administration
? RULE: the constitution is the supreme law of the land; and the court can interpret it even as applies to actions of other branches (judicial review)
? Court can only provide remedies when there is a legal duty to act/not to act - court doesn't review political decisions
? REASONING: judicial branch says what law is;
? POLICY: government of law, not of men, so everyone is subject to the law
? POLICY: comes to jurisdiction question last because wants to establish judicial review first; and because didn't want to threaten legitimacy by making Madison deliver the commission o Martin v. Hunter's Lessee (1816) (p. 38) J. Story
? FACTS: M owned British land b4 US existence, then VA confiscated the land and gave to H
? RULE: SCOTUS has appellate jurisdiction for constitution and federal laws including for state court judgments on federal law;
? HELD: VA is not totally sovereign (based on Art. I Sect. 10 restrictions) and is thus subject to the treaties of the United States
? Textual argument: "all cases" in Article III Sect. 2, and supremacy clause
? Could argue states only gave up "enumerated" things
? (B) Congressional Power and Its Limits o Framers wanted stronger government than AoC so that could better respond to problems
? Sovereignty went from states to people
? Thought legislative was most dangerous
? Federalism
? States are laboratories for democracy o Race to the top vs. race to the bottom o But don't do too much or you'll attract all the floor people o Problems of externalities with other states


Maximizes preference satisfaction o Vote with your feet o But you don't want to maximize unconstitutional preferences o Easier for factions to gain power
? Value of political participation o Smaller government may encourage more participation o But again, easier for factions
? Got enumerated power, and plenary power reserved for states
? Art. I Sec. 9 = limitations on congressional power
? Art. I Sec. 10 = limitations on state power o When faced with potential violation ask: (1) where do you get the power from; and (2) is it constitutional?
? For states you only need to ask whether it violates a prohibition in the constitution o (1) Necessary and Proper (N&PC)
? McCulloch v. Maryland (1819) (p. 53) CJ. Marshall
? FACTS: National bank was renewed after war of 1812, states were pissed and taxed it with neutral laws taxing all out of state banks, but National Bank was the only one
? RULE: (1) congress can act, where action is convenient to the effectuation of the exercise of an enumerated power; (2) the supremacy clause prevents states from having the power to destroy that which federal government has the power to create o (1) the bank is constitutional because it is N&P to some enumerated powers (implied powers)
? POLICY: can have implied powers, and congress choses the means (expansively) but "let the end be legitimate" (court defers to legislature) - motive inquiry
? Not good law anymore
? Historical - Originalism: the 1st congress passed 1st bank
? Historical practice: people who came 20 years later still thought constitutional, so for 30 years people have assumed this is constitutional, and they deserve deference
? Text: turns "necessary" into "convenient"; Art. I Sec. 10 uses "absolutely necessary" so this must be less and 10A doesn't have "expressly" like the AoC
? Structural: "N&P" expands Art. I Sec. 8 rather than limiting like in Art. I Sec. 9
? Structural/textual: "we the people" - states do not retain sovereignty o (2) MD cannot tax the national bank because the power to tax is the power to destroy
? Structural: taxing the bank would undermine democracy as no political process could fix except in MD, and MD doesn't internalize
? POLIC: "this is the constitution we are expounding" - read between the lines o Constitutional interpretation is not mechanical, but interpretive
? Andrew Jackson, Veto Message (1832) (SM 19)
? FACTS: bill to renew bank, congress passed, Jackson vetoes
? OPINION: each department should interpret the constitution - the bank is not necessary so unconstitutional o Departmetnalism/coordinate construction o Underenforcement: if court is underenforcing the constitution then other branches need to step up (does the court do this for fear of losing legitimacy?)

Cooper v. Aaron (1958) (p. 44) All Justices Signed on to Opinion
? FACTS: AK refuses to comply with Brown, Eisenhower thinks important to back up so sends in troops
? RULE: AK officials are bound by constitution because of Art. VI, and the court determines what the constitution says
? POLICY: judicial exclusivity - in conflict with departmentalism o (2) The Vagaries of the Commerce Power
? (a) The Early Commerce Power
? Tests: o Test 1: can regulate commerce, not manufacturing/production (E.C. Knight) (Darby) (Wickard) o Test 2: can regulate production, etc. if it is within the stream of commerce (Stafford v. Wallace) (Jones & Laughlin) (Darby) o Test 3: direct effects test (E.C. Knight) (Jones & Laughlin) (Wickard)
? Pretty limiting
? Formalist test o Test 4: can regulate when there is a substantial relation/effects (Houston, East
& West Texas Ry.) (Jones & Laughlin)
? Realist test o Test 5: motive test / ends test (Dagenhart) (Darby)
? Limits all even if on face looks like regulates commerce
? Applied to other enumerated powers o Test 6: no aggregation - the only directness matters is the one instance and cannot add them up (Carter) (Wickard) o Insights:
? 3 & 4 are in direct conflict
? 2 qualifies 1
? Sugar | == cattle == poultry
? == is commerce
? E.C. Knight says sugar no good
? Stafford says cattle okay
? Schechter says poultry no good
? United States. v. E.C. Knight Co. (1895) (p. 180) (background) CJ. Fuller o FACTS: E.C. had 98% of sugar refineries, sued under Sherman act, E.C. says unconstitutional o RULE: cannot regulate manufacturing (Test 1)
? Also, direct effects test - not about scale but about direct/indirect (Test 3)
? Here effects of manufacturing not direct enough to regulate o DISSENT: Harlan - says it will affect interstate commerce because it is too big for any state to regulate
? Stafford v. Wallace (1922) (p. 182) J. Taft o FACTS: butchering in stockyards o RULE: if production is within stream of commerce (between commerce on each side) then it is constitutional to regulate (Test 2)
? Houston, East & West Texas Ry. v. United States (1914) (p. 181) (background) J. Hughes?

o FACTS: charging lower rate between shorter distance within Texas than longer from Texas to Louisiana o RULE: can constitutionally regulate because close relation between interstate rates and intrastate rate (substantial relation and direct effects) (Test 4) (Test 3)
? Like Harlan Dissent in E.C. Knight
? Hammer v. Dagenhart (1918) (p. 169) J. Day o FACTS: Child Labor Act prevent interstate transport of goods produced by child labor (i.e. goal wasn't commerce) o RULE: motive/ends test - cannot constitutionally have a police power/illigitimate goal using an enumerated power means (Test 5)
? McColloch "let the end be legitimate" was about N&PC not ICC, so you still cannot have illegitimate means for an enumerated end o DISSENT: Holmes - not relevant what ends are, just what it does; thinks this is an evil (b) The Commerce Power in the New Deal
? (1) Commerce Power Under Scrutiny o A.L.A. Schechter Poultry Corp v. United States (1935) (p. 186) CJ. Hughes
? FACTS: National Industrial Recovery Act wage and hour restrictions on poultry business as a part of New Deal alphabet soup. Almost all poultry in NY was shipped by RR from other states
? RULE: direct test - not direct enough when at the end of the stream of commerce (Test 3)
? DISSENT: Cardozo - not enough of an effect, but should think about degree/size not just directness
? POLICY: precommitment, and happened just a few weeks after the regulation was passed o Carter v. Carter Coal Co. (1936) (p. 188) Sutherland
? FACTS: similar act as NIRA (wage & hour, also price) for coal saying "coal affects interstate commerce"
? RULE: direct effects and cannot use aggregation (Test 6)
? Coal isn't commerce; coal isn't in stream of commerce
? Logical rule, not judgment
? DISSENT: Cardozo - "direct" doesn't make sense, so big that fed should step in and court should think about economics
? POLICY: departmentalism vs. judicial supremacy
? POLICY: realism vs. formalism
? (2) New Deal Revolution I and the Commerce Power o NLRB v. Jones & Laughlin Steel Corp. (1937) (p. 193) Hughes
? FACTS: National Labor Relations Act system for labor/management relations regulation. Challenging company with many subsidiaries crossing state lines, but examining manufacturing unionization
? RULE: correct test is close and substantial relation to interstate commerce (Test 4); interstate commerce is at the heart of the business
? If too indirect then there will be no substantial effects (Test 3)
? Stream of commerce unimportant (Test 2)
? POLICY: realist - about facts and realities
? POLICY: context of FDR court packing scandal - people scared of dictatorship, but isn't this a political check on the court?

?Slow/internal shift: doctrine was incoherent and evolving to make rational
? Sudden/political shift: J. Roberts switches vote "switch in time that saved nine" o United States v. Darby (1941) (p. 196)
? FACTS: FLSA max hour and minimum wages, can't ship goods in interstate commerce without complying and cannot employ workers for manufacture/production for interstate commerce if don't comply
? RULE: congress interstate commerce power is plenary - can choose goals & means
? Production of goods not interstate commerce but doesn't matter (Test 1, and thus Test 2)
? Motive to regulate wages & hours irrelevant (Test 5)
? Overrules Hammer v. Dagenhart
? 10A is "but a truism" and has no effect
? POLICY: once you have an end related to interstate commerce, you can chose means via N&P: easier to regulate wage & hour than shipment
? POLICY: congress can intervene in individual state's commerce because otherwise would create unfair competition (like Holmes dissent in Dagenhart) o Wickard v. Filburn (1942) p. 171)
? FACTS: Agricultural Adjustment Act quota for wheat production; Filburn had dairy farm and grew wheat to feed cows and eat himself so not all was in interstate commerce
? RULE: can aggregate for substantial effects test
? Private consumption is 20% of market so substantially effects supply and demand and thus interstate commerce
? Doesn't care about commerce/production (Test 1), directness (Test 3), or aggregation (Test 6) (c) The Commerce Power in the Age of Civil Rights
? Kennedy before the Senate (1964) (SM 24) o Wanted to justify CRA 1964 on interstate commerce rather than 14A (only protects states and act was about private parties) because more sure o CRA 1883 - no one thought could justify under commerce clause
? Heart of Atlanta Motel v. United States (1964) (p. 199) o FACTS: HoAM didn't allow blacks; blacks traveled less because hard to find accommodations o RULE: "means chosen by it must be reasonably adapted to the end permitted by the constitution" - motive doesn't matter, and can regulate local based on substantial effects via aggregation
? (Test 6)
? Katzenbach v McClung (1964) (p. 200) o FACTS: restaurants on AL state highway only giving blacks take-out, purchased food from out of state o RULE: restaurants are not per se interstate commerce, only if the (1) serve or offers to serve interstate travelers, and (2) food purchased from form out of state

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