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Constitutional Law I Outline - Professor Wallace - Campbell Law - Part 1

By Miller Moreau
Professor Wallace - 2020

Download the PDF version of this outline

Part 2 >>

Introduction to the Constitution and Interpretation

The Constitution is

  • Based on popular sovereignty (republican, a mix of a truly national and truly federal government)
  • Designed to PROTECT freedoms (negative rights, aka our liberties)
  • Recognized as the supreme law
  • Expressed in written form (hugely symbolic for its importance and sovereignty, but also practical for the people to know who has what power or right)

Origins and precedents:

  • John Locke
    • Social contract theory and natural rights (state of man)
  • English principles, flowing from the Glorious Revolution
  • Declaration of Independence and the Articles of Confederation
  • Colonial charters
  • Natural rights in general:
    • That we are endowed with pre-political rights from our Creator
    • Negative rights vs positive/welfare rights, plus other rights in the Constitution like right to trial by jury
  • AOC

Most Important Innovations:

  • Based on popular sovereignty “We the People” – Federalist 39
  • Designed to protect individual freedoms (rights) by limiting power of the government
  • Expressed in written form
  • Recognized as supreme law to be changed only by supermajority

Constitution’s Key Decisions:

  • Stronger national government
  • Representation in the legislature (Great Compromise)
  • Independent judicial and executive branches (unlike in England)
  • 3/5 Compromise (slavery)
  • Ratification by part of the whole, not unanimous

Why written?

  • Allows society to commit itself to protect fundamental rights in times of crisis
  • Creates a framework for intergenerational lawmaking and private ordering
  • Works as a “gag rule” taking certain controversial topics off the agenda of ordinary politics
  • Easier for people to access and understand, so they can hold government accountable

Problems with written ©

  • Any written document that regulates future conduct is inevitably incomplete, so whoever decides how it answers unforeseen Qs has immense power
  • Public officials and judges will be tempted to change difficult-to-amend © in times of crises or social change
  • A court that is under political pressure and would make a decision that is bad

Interpretive schools of thought

  • Originalism
    • Wants to find a reasonable person’s meaning at the time of enactment of the Const.
    • Claims the meaning is fixed at time of enactment, and that the fixed meaning is a constraint on judicial application
    • Seeks to find the meaning that the reasonable listener would place on the text at the time of its enactment (the public meaning)
    • Note the difference between this and original intent (which has been largely denounced)
    • So the constitution reflects the public’s consensus view, and ratification requires a supermajority vote to reflect that
    • Therefore, the original meaning is the ratified meaning
  • Non-originalism (aka living document)
    • Seeks to find the meaning in our time, typically guided by some overarching interpretive ideal (human dignity, etc)
    • Believes judges have the power to change the meaning, without a supermajority vote or consensus of the public

Methods to analyze con law cases:

  1. Text and Context– common linguistic meaning when ratified
  2. Structure – internal ordering or logic of ©
  3. Historical purpose and understanding – contemporaneous commentary on meaning
  4. Precedent and Practice – constitutional tradition
  5. Policy – political or personal views
  6. Consequences
Powers of the Federal Government; The Separation of Powers
  1. Congress: interstate commerce, taxing and spending, declare war and fund the armed forces
  2. President: carries out laws made by Congress, directs and lead armed forces (Commander in Chief), treaty and foreign affairs, appointment of federal officers, pardons for federal offenses, veto
  3. Judiciary: decides cases that fall within fed. jud. Power

Noel Canning v. NLRB

  • Separation of powers; constitutional interpretation
Separation of Powers

Steel Seizure case (Youngstown)

  • President seized private property through an executive order mid wartime in order to keep steel production going rather than on strike
  • Ct held that this is an unconstitutional exercise of presidential powers, which are confined to Art II, because it crosses into legislative territory
    • Here, not encompassed in Pres’s military power, or his “theatre of war” power
  • Jackson’s concurrence noted that there are 3 times when Pres. acts:
    • With express power (Const. Or by law)
      • Presumably within his power
    • In twilight zone (Congress has taken no action regarding it)
      • Look on this with some scrutiny
    • Pres goes against Congress
      • Scrutinize with caution
      • This is where Pres is now because 5th amendment provides for DP and Takings Clause, so Pres cannot go against it in legislative capacity
  • Dissent noted policy and context to justify Pres’s action
  • Four different approaches to when the President can act with without express constitutional or statutory authority:
    • There is no inherent presidential power; the president may act only if there is express constitutional or statutory authority.
      • Majority stated that the President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself - Truman’s order was unconstitutional because no statute nor is it expressed in the Constitution
    • The president has inherent authority unless the president interferes with the functioning of another branch of government or usurps the power of another branch.
      • Douglas takes this approach in the concurring - President was forcing the expenditure of federal funds for taking the property and that was usurping Congress’s spending power
    • The president may exercise powers not mentioned in the Constitution so long as the president does not violate a statute or the Constitution.
      • Jackson said Congress has denied the President to seize industries so this was unconstitutional. Also since the President violated federal law, he will only be able to such things if the law enacted by Congress is unconstitutional.
    • The president has inherent powers that may not be restricted by Congress and may act unless the Constitution is violated.
      • Federal laws restricting the President’s power is unconstitutional.
Legislative Powers (Article I)


  • Art I, Sect. 8 lists enumerated powers
  • Mistretta
    • Congress delegated legislative powers through a law to a committee to produce sentencing guidelines for criminals in federal court; Can congress delegate its legislative power?
    • Intelligible principle test:
      • As long as there is an intelligible principle guiding the delegated powers (a standard by which the powers are limited/measured), then the delegation is constitutional.
      • Ct found here that there were stated goals, purposes, and checks on the committee so it passed constitutional muster
    • Scalia’s dissent
      • Notes that some delegation is necessary, but that the delegation must be of ancillary powers; that is, congress cannot give away “naked” legislative powers to create an independent legislative body (JV congress)
      • Would find unconst. As a pure delegation of legislative power
  • Nondelegation doctrine
    • That Congress cannot delegate any powers to private actors
    • Cts have instead given broad approval to delegation of powers to the public sector, and applied the intelligible principle test

Composition of congress

  • Art 1, Sects 2, 3, 5
  • Powell v. McCormack
    • Can Congress change its own composition in a way different than Art I allows because it has power to judge its own members in Sect 5?
    • Congress excluded Powell from Congress by requiring majority vote only (so not an expulsion under Const. Sect 5 with ⅔ vote needed), even though he was elected, for his misconduct during previous Congress
    • Ct held that this was unconstitutional: Congress cannot change the composition unless goes by constitution guidelines
  • US Term Limits, Inc
    • Can the states change the composition of the congress?
    • Ct held that the state law barring candidates from the ballot if they had served a certain number of terms in Congress was unconstitutional as a violation of Art 1, Sects 2 and 3
      • Also not a reserved right because states never had the power to change the composition so cannot do so now
    • Dissent noted that imposing term limits on Congressional candidates is a reserved right under the 10th Amendment

Procedure and prerogatives

  • Art 1, Sect 5
    • To what extent does the Const give Congress the power to enforce its power of inquiry?
  • McGrain
    • Art 1, Sect 5: be the judge of their own rules
    • Can Congress demand that a private person (not a member of gov) appear in court?
    • SCOTUS held that YES; Congress has power of inquiry, but also the power to enforce that inquiry against private ppl
      • Why? Fxns as oversight for agencies, and imposes ethical rules on gov ppl
  • Committee on Judiciary US House of Reps v. Miers
    • Same issue, but power of inquiry involving ppl in the ex branch
    • Held that C can enforce its power of inquiry against ex branch officials (no absolute immunity!)
  • Filibuster
    • A cloture rule: in order to cut off the debate, you have to have 60 votes
    • It gives the minority party a virtual veto power
    • Some things are not subject to it but still very powerful
    • Argument against it:
      • Const has anticipated how to pass laws, and that is majoritarianism (a supermajority vote of 2/3 both houses)

Bicameralism and presentment

    • every bill goes through both houses and then presented to Pres, who can veto or pass (or do nothing, and then after 10 days it is assumed passed)
  • Chadha
    • Are legislative vetoes unconstitutional bc they are congressional lawmaking that does not comply with the presentment clause?
    • YES, unconst.; bc it is a leg fxn (passing amendments to deport people), it must satisfy bicam and pres
  • Clinton v. NY
    • Is the line item veto an unconst. Violation of Art 1, Sect 7 bi cam and prese clause?
    • YES, unconst; it is an ex doing a leg fxn of changing a law; can only change a law with bicam and presentment
    • Unconstitutional because by changing anything was changing a law adopted by Congress. There is a way outlined in the Constitution on vetoing and repealing statutes and that is what should be followed.

Power of the purse

  • Art 1, Sect 9
    • The things Congress CAN’T do in an effort to control stuff with their power of the purse
    • Goal of these prohibitions is to ensure generality (no single ppl are punished), and prospectivity (no retroactive criminal laws)
  • Lovett
    • To what extent can Congress use its power of the purse to impose limits on the ex. Branch?
    • It does have the pursestrings, so can cut off funding for things it doesn’t agree with, but CANNOT make it a bill of att!!
    • Bill of Att means a leg. Act that:
      1. is directed at 1 person or a group of people
      2. imposes punishment on those people
      3. without judicial trial
    • But what constitutes punishment?
      • Does it fall within the historical meaning (think prison, etc)?
        • The historical test
      • Does it further nonpunitive leg purposes?
        • The functional test
      • Does the leg record show a leg intent to punish?
        • Motivational test
  • Calder v Bull
    • Court held that the Art 1, Sect 10 (applies to state laws; sect 9 has same provision in it) ex post facto laws apply ONLY to CRIM laws and not to civil laws; thus, there is nothing stopping the leg. From making retroactive civil laws, and also does not apply to judicial
    • These laws either make criminal 1) an act that was innocent at the time committed, or 2) make the punishment greater than it was when committed
  • Signing statements
    • What a president writes when he passes a law (bc no line item veto anymore) but doesn’t actually want to enforce a specific provision which Congress has funded with its power of purse
  • HofR v. Burwell
    • How can C actually enforce the limits it imposes on ex. Branch spending?
    • It is a fine line; the court will not address it if it is a political question, but will if it touches a const. Question like the Lovett case and bill of att.
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