Constitutional Law Long Outline

Constitutional Law Long Outline

Constitutional Law Long Outline





Marbury v. Madison (Established Court’s authority for judicial review of federal legislation and executive ends)

Martin v. Hunter’s Lease (SC has constitutional authority to review constitutionality of state court decisions: since federal law supreme: that means review question of federal law. Also applies to state legislative and executive action; criminal and civil)

Cooper v. Aaaron (when SC interprets the constitution, that interpretation is supreme law of the land and binding on everyone)

B.Limits on Judicial Power: Political Questions

Political Question: question one branch can decide without interference from judiciary

Baker v. Carr (1 of 6 factors must be present for question to be non-justiciable political one. Equal protection claims on state assembly apportionments are justiciable (1 person 1 vote), don’t violate any of factors)

Powell v. McCormack (the textual commitment of house being judge of members doesn’t preclude court from hearing issues about not seating congressmen, only means house judges the three requirements of constitution, and cannot add more: (ceiling not a floor))

Nixon v. United States (senate has sole power to try impeachments, the courts cannot review impeachment proceedings)

C.Limits on Judicial Power: Case or Controversy and Standing

Muskrat v. United States (Court will not issue advisory opinions: need a case or controversy)

Allen v. Wright (to bring suit, P must have real and individualized injury (not as member of class) that is traceable to the action challenged and can be redressed by the relief sought: purely ideological Ps will not have standing)

D.Congressional Control of Supreme Court Jurisdiction

Ex Parte McCardle (Congress may make exceptions and regulations regarding the SC’s appellate jurisdiction. Does not say congress may strip federal courts in their entirety of right to issue habeas corpus relief)


A.The Scope of Federal Power

McCulloch v. Maryland Part I (Where the ends is legitimate and within the scope of the Constitution, all the means are appropriate which are plainly adapted (rationally related) to that end which are not expressly prohibited)

McCulloch v. Maryland Part II (states cannot tax federal government)

United States v. Comstock (Congress doesn’t have to say what enumerated power an act is necessary for, just some legitimate interest: rational basis review for laws)

B.The Commerce Power: The Early Years

Gibbons v. Ogden (ferry case: broad interpretation of commerce and the clause: can regulate all commercial matters that affect more than one state, as long as regulation does not violate constitution)

Shreveport Rate Case (R.R. rates case: congress can regulate intrastate rates of common carrier that have substantial effect on interstate commerce) (1914)

United States v. E.C. Knight Co. (Sugar monopoly: commerce power does not include power over everything that implicates interstate commerce (manufacture)) (1895)

Carter v. Carter Coal Co. (coal worker hrs: commerce power does not include power to regulate activity just because it effects commerce) (1936)

Champion v. Ames (lottery: congress can regulate the transportation of goods in interstate commerce (lottery tickets)) (1903)

Hammer v. Dagenhart (child labor: commerce power does not include regulation of interstate goods that affect local activities (production)) (1918) (overturned by Darby)

C.The Commerce Power: The Middle Years

NLRB v. Jones & Laughlin Steel Corp. (steal unions: Substantial Effects Test: congress may regulate local activity if that activity has a substantial effect on interstate commerce)

Commerce to police power: the ends are not important…

United States v. Darby (labor standards: overturning Hammer: effect on local activity doesn’t matter) (commerce power extends to intrastate activities that substantially affect interstate commerce)

Wickard v. Filburn (home wheat: if activity, in the aggregate, has substantial economic affect on interstate commerce, then it’s under the commerce clause: no need for activity to be commercial)

Civil Rights application. 14th amendment only applied to fed, and states.

Heart of Atlanta Motel v. United States (discrimination affects interstate commerce, so within commerce power)

Katzenbach v. McClung (BBQ case)

D.The Commerce Power: Recent Cases

United States v. Lopez (guns free school act: Three categories of commerce power: 1. Channels. 2. Instrumentalities. 3. Activities having substantial affect) (split category 3: economic can be aggregated, non economic cannot)

United States v. Morrison (violence against women: congress cannot regulate local non-economic activity if causal chain to substantial effect on commerce is too attenuated. Findings element gone: probably apply to criminal laws)

Gonzales v. Raich (weed growth case: congress can regulate intrastate production and possession of economic activity that has a substantial impact on interstate commerce)

National Federation of Independent Business v. Sebelius I (ACA under commerce clause:

Methods of Interpreting the Constitution

E.The Taxing and Spending Powers

Child Labor Tax Case

Unites States v. Kahriger

National Federation of Independent Business v. Sebelius II

United States v. Butler

South Dakota v. Dole

F.State Autonomy and Congressional Power to Regulate States

National League of Cities v. Usery

Garcia v. San Antonio Metropolitan Transit Authority

New York v. United States

Printz v. United States

G.Federal Limits on State Power

U.S. Term Limits, Inc v. Thornton

Silkwood v. Kerr McGee Corp.

H.Federal Limits on State Power: The Dormant Commerce Clause

Dean Milk Co. v. City of Madison, Wisc

City of Philadelphia v. New Jersey

Camps Newfound/Owatonna, Inc. v. Town of Harrison

South Carolina State Highway Dept. v. Barnwell Bros.

Southern Pacific Co. v. State of Arizona

Kassel v. Consolidated Freightways Corp. of Delaware

South-Central Timber Development, Inc. v. Wunnicke

Prudential Ins. Co. v. Benjamin


A.Executive Power: Domestic Affairs

Youngstown Sheet & Tube Co. v. Sawyer

Dames & Moore v. Regan

B.Executive Power: Foreign Affairs

Dames & Moore v. Regan

C.Executive Power: The War on Terror

Hamdi v. Rumsfeld

Humbdi v. (idk)

D.Executive Privilege and Immunity

United States v. Nixon

Nixon v. Fitzgerald

Clinton v. Jones

E.Congressional Control: The Legislative Process

Whitman v. American Trucking Associations

Immigration and Naturalization Service v. Chadha

Clinton v. New York

F.Congressional Control: Executive Officers

Myers v. United States

Humphrey’s Executor v. United States

Bowsher v. Synar

Marrison v. Olson

Free Enterprise Fund v. Public Company Accounting Oversight Board


Roadmap of Powers

  • Federalism: the federal and state governments co-exist
  • Limited, Enumerated Powers: powers of federal government are limited to those enumerated in the constitution
  • States have police power
  • Separation of powers: each branch has own enumerated powers
  • One branch may not take action reserved b the constitution to one of the other branches
  • Congress Commerce Power: congress has power to regulate commerce
  • Dormant Commerce Clause: federal commerce power restricts the states from discriminating against, or unduly burdening, interstate commerce

Standards of Review

  • 1. Mere Rationalist Standard (easiest connection to satisfy)
  • Court holds up governmental action so long as 2 requirements are met:
  • 1. Government must be pursuing a “legitimate” state objective
  • 2. There has to be a “minimally reational relation” between the means chosen by the government and the state objective
  • if government not perusing a legitimate state end and rational relation between the means chosen and the objective: then court will strike down state action: almost always uphold action under this test
  • main problem arise: when a state is violating dormant commerce clause
  • 2. Strict Scrutiny Standard (hardest to satisfy)
  • must meet two requirements
  • 1. The objective being pursued by the government must be “compelling”
  • 2. The means chosen by the government must be “necessary” to achieve that compelling end
  • tight fit between means and ends
  • necessary: there must not be any less restrictive means that would accomplish the government’s objective just as well
  • government action will almost always be struck down
  • 3. Middle-Level Standard (exactly what it sounds like): both requirements between above two)
  • 1. The governmental objective has to be “important”
  • 2. The means chosen by the government must be “substantially related”



  • America Before the Constitution (Articles of Confederation)
  • No Federal Executive or central government
  • Congress was powerless
  • States fought, minted own currencies, negotiated trade agreements with foreign nations, taxed products from other states
  • Economy was poor/colonies in debt
  • Philadelphia Convention
  • Small states feared loss of influence/would be outvoted
  • States worried that constitution would make the centralized government too powerful
  • So enumerated powers: too prevent trampling on rights (plus bill of rights)


  • Article I: defines power of congress
  • Article II: defines power of President/Executive Branch
  • Article III: defines the power of Federal Courts

Why not Amend Constitution?

  • Retain clean broad principles
  • Politically difficult
  • Some parts not amendable
  • But dead hand problem: bound by old values: undemocratic
  • So keep constitution: for principles to stand on, nationalism, self imposed paternalism (don’t want to be reactionary)
  • Binding: bc it was parties of a contract: we’re the parties
  • But some old principles: we don’t like: kind of just ignore them (segregation, flogging, etc)
  • So we interpret constitution to reflect our current vales:
  • More the values differ: the less respect we give it: interest in being bound



Overview of Supreme Court’s Authority

  • Supreme Court Review
  • Supreme court: and not Congress, which has the authority and duty to review the constitutionalist of statutes passed by Congress, and to invalidate the statute if it violates the constitution
  • Review of State Court Decisions
  • Supreme court may only review state court decisions to the extent that the decisions was based on federal law
  • Federal Judicial Power
  • The federal judicial power is set forth in Article III, Section 2 of the constitution
  • Includes: (1): cases arising under the constitution or federal statutes (2) cases of admiralty (3) cases between two or more states (4) cases between citizens of different states (5) cases between a state or its citizens and a foreign country or foreign citizens
  • Congressional Control of Federal Judicial Power
  • Control of Supreme Court Docket
  • Congress has the general power to decide what types of cases the Supreme Court may hear, so long as it doesn’t expand the Court’s jurisdiction beyond the federal judicial power
  • Lower Courts
  • Congress may also decide what lower federal courts there should be, and what cases they may here

Marbury v. Madison(Established Court’s authority for judicial review of federal legislation and executive ends)

  • Facts: Adams was president, appointed Marbury (P) justice of the peace, incoming prez, Jefferson, chose to ignore them by instructing Madison (secretary of state) (D), not to deliver charters. P sought writ of mandamus in Supreme Court: to order D to deliver commission.
  • Three questions here
  • 1. Does Marbury have legal right to job? Yes: signed and sealed, just not delivered, still had job
  • 2. If so, does law afford a remedy? Yes: civil liberty gives protection of legal rights, so has remedy. Law would be meaningless without remedy
  • 3. If so, is the court authorized to grant that? No (some questions are left to congress/prez: political questions): basically comes down to: is there executive discretion? NO… but
  • In answer: SC just didn’t have jurisdiction (could only order writs when acting as appellate court according to judiciary act: but SC didn’t read it this way, read to give them original Jurisdiction beyond that of constitution)
  • Current idea on this: if one reading is unconstitutional and the other reading is not, then read it as constitutional
  • Issue: P had legal right to commission, but Judiciary Act of 1789 and the constitution conflicted as to whether the Supreme Court had original jurisdiction to issue of writs of mandamus.
  • Judiciary Act: authorized S.C. to issue writs of mandamus in cases warranted by the principles and usages of law, to any courts appointed, or person holding office, under the authority of the US. (gave original jurisdiction for this in courts reading)
  • Article III of Constitution: “in all cases affecting Ambassadors, other public Ministers and consuls, and those in which a State shall be party, the SC shall have original jurisdiction (nothing about writs of mandamus): in all other cases before mentioned, the SC shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as Congress shall make.
  • Basically turns on what shall means. Here: court says shall means may only. (if shall meant at least: then congress could’ve given orig. jur.)
  • Another Marshell Opinion: reversed this. No longer mutually exclusive list of original and appellate jurisdictions, bc allowed state as party to be in appellate jurisdiction (in list of original) too when it was a federal law (appellate jurisdiction)
  • Application here: treating article III as mutually exclusive (can’t be both), therefore the Judiciary Act is giving SC MORE power than the Constitution says it should have (constitution doesn’t say SC has authority of writs of mandamus within court’s original jurisdiction)
  • Reasoning: implicit in the constitution
  • 2 questions:
  • 1. if statute is against constitution: then must it yield:
  • YES: easy question: that’s the whole reason for having a constitution(see nature of written Constitution)
  • 2. Who gets to decide if statute is unconstitutional?
  • 1. Structure: implicit in the structure of the constitutional that Congress cannot pass a law that exceeds the powers that congress actually has
  • constitution limits powers of federal government (these to first question)
  • 2. Institutional logic: does not make sense for a branch to check power of itself
  • even if congress acting in good faith to stay constitutional: will read it broadly to give self more power
  • but: still have bicameral system, veto, and vote
  • 3. Nature of written constitution: inherent nature of a written constitution that the limits of constitution trumps all other laws
  • if congress could supersede constitution, no point in having it (to first question): congress would expand it’s power if could
  • 4. Judicial function: inherent in judicial function to decide what laws govern a conflict:
  • judges under oath to follow constitution
  • and federal question jurisdiction: must interpret constitution to see what arises under federal law
  • 5. Textual: commitments in the constitution suggest that courts must have the power to invalidate a statute. Constitution trumps other laws by article VI: supremecy clause
  • from the supremacy clause and jurisdiction over “all cases arising under the constitution”
  • 6. Judicial Expertise: it’s courts job to know and interpret law, therefore best at determining constitutionality.
  • 7. Democratic Theory: court is enforcing the will of the people through the constitution
  • people voted to adopt constitution: promoting that opinion by protecting it
  • 8. Anti-Democratic theory: constitution protects the minority from tyranny of the majority, by stating things populous can’t do even if it wants to
  • Counterarguments
  • 1. Judiciary Act: was passed by members of congress who drafted the constitution: they didn’t think it was unconstitutional, they made constitution
  • 2. Wrong Question: answered the easy question: if statute must yield, but doesn’t really answer who gets to decide if statute is inconsistent.
  • Could also be the president and congress doing together: they also have vote
  • 3. Against Text: nothing in constitution that power of judicial review in courts. There could be plenty of constitutional questions in courts without judicial review power
  • constitution didn’t say judicial review: so why do they get it?
  • 4. Anti-Democratic: having unelected court make these decisions, don’t represent will of people, hard to get rid of them, striking down majority wants
  • 5. Supreme court is controlling it’s own power here (in judicial act): so why can’t congress
  • 2 interlocking arguments
  • 1. “it is emphatically the province and duty of the judicial department to say what the law is”
  • those who apply the rule to particular cases must by necessity expound and interpret that rule. If two laws conflict, courts must decide operation of each: that’s they’re job: legal rather than political judgment
  • so supreme court may review the constitutionality of acts of congress and of president: despite no express constitutional authority to do so
  • 2. Constitution is Paramount: very purpose of a written constitution is to establish a fundamental and paramount law, it follows that any act of the legislature that is repugnant to the constitution must be void
  • court essentially waited to do jurisdictional question until the end to give itself power of review. Also could have interpreted judiciary act narrower: (giving appellate review of writs, allowed by constitution: and wouldn’t be problematic)

Martin v. Hunter’s Lease (SC has constitutional authority to review constitutionality of state court decisions: since federal law supreme: that means review question of federal law. Also applies to state legislative and executive action; criminal and civil)

  • facts: Land owned by Lord Fairfax (a loyalist) was seized by Virginia and given to Hunter. But in Treaty ending revolutionary war, states precluded from seizing land from Loyalists. Martin, claims got land from Fairfax, so should have land now. Virginia seizure was invalid bc against federal law. (Supremacy clause: validly enacted treaties and laws made in furtherance of constitution are supreme law)
  • Virginia SC: decided for Hunter: saying seizure was valid. SC found for Martin, bc treaty supremacy over Virginia law on seizure. Remanded. Vir. SC refused to obey SC mandate.
  • Rationale: if litigation commenced in state court, then up to state court to say if action violated federal law. Vir. SC had different interpretation of the treaty.
  • Logic (prez can’t veto governor, congress can’t veto state leg., same here)
  • Rationale: Textual Argument
  • 1. Federal courts must have either original or appellate jurisdiction over federal laws: Art II sec. 2 “Judicial power shall extend to all cases under federal law”
  • shall=must: or must at least have jurisdiction over all cases under federal law
  • 2. issues of federal law arise in state court (didn’t have lower federal courts prior to judiciary act, so state courts have to be able to have the original jurisdiction or else nobody would when SC doesn’t, plus interrelated claims still happen today)
  • and bc of supremacy clause, state law and federal law might clash, gotta see if fed. Law supersedes state one
  • so federal issues in state court
  • 3. So federal court must have appellate power: or else won’t have jurisdiction over federal law. That’s against constitution.
  • Therefore: must be able to appeal to SC
  • VA counter
  • Just create lower federal courts with easy removal. But if wont listen to federal judges then won’t listen to removal
  • Uniformity argument: if Supreme court can’t review, going to have varying interpretations of federal law
  • If follow VA argument: then federal law (including constitution) could mean different things in VA and MA: which brings back to articles of confederation
  • Also applies to criminal cases: Cohen v. Virginia
  • Institutional Rational: constitution is premised that states/judges may be bias for local interests (whole reason for diversity jurisdiction). Also, federal judges are experts on federal law
  • Example: process of federal judge appointment v. state judge elected
  • Might cloud decisions for local interests (subject to majoritarian pressures.

Presidential/Congressional Opposition to the court