Chapter Two: Constitutional Law

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Chapter Two: Constitutional Law

Preamble: Why does our U.S. Constitution, the first law in the United States, have a preamble?

What is a legislative history?

How is legislative history relevant?

Example: What if in previous drafts of the Constitution Thomas Jefferson wrote into the record that the “Right to Bare Arms” are so that “Patriots have the means necessary to protect soil and home from foreign militias….”

Chapter Two: Constitutional Law

What is the U.S. Constitution?

What is a Statute?

Main Body: Seven Articles

I,II, III: Congress, President, Judicial System, Checks and Balances

IV: Relationship with and between states – Think same sex marriage, and how this article shaped recent Supreme Court decision? Easier example: driver’s licenses, explain.

V: Amending the constitution

VI: Supreme Law of the Land

VII: Ratification of the Constitution

Chapter Two: Constitutional Law


I: Congress. House based on population; Senate two per state. Anything interesting about how Senators were selected at our country’s inception?

Why do you suppose Congress was created in Article I?

Create and vote on laws, budget being the biggest one because its every two years and the federal governments power of the purse is what ultimately gives it power.

II: Executive Branch. President and vice president, sign and enforce laws; commander in chief.

III: Judicial System. Created the Supreme Court, and gave Congress the power to create the federal court system in general.

Checks and Balances. Explain.

Chapter Two: Constitutional Law

Bill of Rights

With any form of government, we give up personal freedoms in exchange for the “stability” that government provides.

Founding fathers knew that this led to some compromises that they were not willing to make, so they came up with the Bill of Rights – personal freedoms that citizens would always have and never compromise…really?

Two years after the constitution was signed. (Wanted to makes sure Article V of the constitution would work.)

Originally 12 amendments submitted but only 10 passed.

Today, which seems to be the least relevant BOR amendment and why?

What about the most important BOR amendment?

Chapter Two: Constitutional Law

Other Constitutional Amendments:

11 through 27 – 17 Amendments after the BOR

11th amendment: sovereign immunity, can’t sue a state in federal court

27th amendment: 1992, related to congressional pay

Amendments are game changers:

12th: Electoral college system, 13th: Abolished Slavery, 14th: defined citizenship, and applied the Constitution to state action not just federal action, 15th: no discrimination of voting based on race, 16th: income tax, 17th: Direct election of Senators, 18th: no booze, 19th: women’s suffrage, 20th: shortened lame duck period for President, 21st: booze back, 22nd: capped Presidential terms to two, 23rd: D.C. can vote, 24th: prohibits poll taxes, 25th: Who succeeds President in death during office, 26th: Voting age to 18 (Why?), 27th: Caps on Congressional pay.

Chapter Two: Constitutional Law

Judicial Review: What is it, what body(s) have it, and why is it relevant?

Supreme Court: In all cases affecting Ambassadors, other public Ministers and Consults, and those in which a State shall be a Party, the supreme Court shall have original jurisdiction. In all other Cases …. appellate Jurisdiction….

Three ways to get to the supreme Court: 1. file directly with the supreme Court (original), 2. lower federal district court and appealing up (appellate), and 3. filing in state court and appealing through the highest state court and then direct to supreme Court on an issue of federal law (appellate).

What is the difference between original jurisdiction and appellate?

Marbury v. Madison, 5 U.S.137

Congress through the Judiciary Act of 1789 expanded the scope of original court jurisdiction for the supreme Court to include delivering a writ of Mandamus.

President Adams appointed William Marbury to run a federal court but when Jefferson became President, then Secretary of State Madison refused to provide Marbury with the commission papers. Marbury sued Madison in supreme Court.

John Marshall said that the Court has the power to hear such cases when conflicts exist between federal, state, and constitutional laws – and in this case, the court held that the federal law that gave original jurisdiction to the supreme Court in this case was in fact unconstitutional and therefor the supreme Court had not jurisdiction over the matter.

Thus, what should Marbury had done first?

Chapter Two: Constitutional Law

Commerce Clause – Article 1, Section 8, Clause 3

Congress has direct authority over interstate commerce – “to regulate commerce with foreign nations, and among the several states…”

(Does this conflict with the President’s treaty power with foreign nations?)

United States v. Alfonso Lopez, Jr.14 U.S. 549, young Lopez was charged with violating the federal Gun-Free School Zones Act of 1990 (the “Act”), 18 U.S.C. § 922(q) for bringing a gun to his high school for resale. Lower court ruled that the federal government had the right to regulate high schools because “the business of high schools….affects interestate commerce…”

Chapter Two: Constitutional Law

Supreme Court on Lopez: “Possession of a handgun near school is not an economic activity that has a substantial effect on interstate commerce. A law prohibiting guns near schools is a criminal statute that does not relate to commerce or any sort of economic activity.”

Congress has the power to regulate activities that substantially affect interstate commerce.

What does this mean and how does it impact business as well as state legislative activities?

Chapter Two: Constitutional Law

Police Power – Health, Safety and Welfare

10th Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

States responsible for legislating laws affecting its own citizen’s health, safety and welfare.

Speed limits


Assisted suicide

Same Sex Marriage: What does this tell us about the power of the bill of rights?

Discuss. LAWRENCE ET AL. v. TEXAS, 539 U.S. 558; Bowers v. Hardwick, 478 U.S. 186 (1986),

Chapter Two: Constitutional Law

Equal Protection – Section 1, 14th Amendment

The constitution as written only applied to actions by the federal government;

14th amendment, also called a “Reconstruction” amendment, added the following language: “…nor shall any State deprive any person of life, liberty or property with out due process of law…”


Plessy v. Fergusen (1896): Separate but equal treats people equally and therefore not a violation of the 14th amendment.

Brown v. Board (1954): Separate but e qual is inherently unequal and therefor is a violation of the 14th amendment.

Chapter Two: Constitutional Law

Equal Protection – Section 1, 14th Amendment

How does the Court review issues related to the 14th amendment

Rational basis review – disparate treatment in business regulations, need legitimate state interest in the regulation…rationally related to desired outcome…

Janitor needs to be able to read, for emergency purposes, because it may save lives…

This different than making literacy mandatory for subway workers who were janitors – which was done to exclude foreign speaking immigrants.

Intermediate scrutiny – disparate treatment in regulations often relating to a quasi-suspect class (gender, age), must be important and substantially related to….

Garbage man cannot be over 65 because of heavy lifting and sight requirements

Strict scrutiny – treatment is related to a suspect class, and the interest must be compelling and narrowly tailored….

Bus drivers cannot wear any uniform that is not in compliance with exact specification, whcih might eliminate some female muslims who wear hijabs. Compelling interest is protecting the school kids, and as the law only impacts bus drivers it is narrowly tailored.

Chapter Two: Constitutional Law

Due Process – 5th and 14th Amendments

Substantive Due Process – Does the state have the power to regulate?

Puts the court in between the two adversaries – the Plaintiff and Defendant.

Ex: State is the the plaintiff, and the accused is the defendant – the court is between the two;

Procedural Due Process – Did the state follow the proper procedures?

Freedom guaranteed by the constitution, deprivations of liberty for example, cannot be deprived from a citizen without due process.

Ex: If a suspect is arrested and the state must file a charge within 24 hours of arrest and does not – then the suspect must be released. This is procedural due process. Other examples?

Property rights – deprivation of property rights

Question asked: What “procedures” are required in order to legitimately deprive someone of their life, liberty or property in the given situation.