Constitutional Law Outline
CON LAW IS ABOUT POWER
Introduction
The US Constitution sets out the powers & limitations of the federal
government, defines the relationship & allocation of power between the
federal & state governments, and guarantees, many individual rights
 The Constitution sets out three branches of federal government: the
legislative branch, the executive branch, and the judicial branch
o Article 1 = legislative branch
o Article 2 = executive branch
o Article 3 = judicial branch
Constitutional Review
 Types of constitutional argument that can be used to analyze and
interpret the Constitution:
o Textual: look to the meaning of the words in the Constitution,
relying on common understandings of what the words meant at
the time the provision was added
o Historical: relying on intent of framers/ratifiers
o Structural: inferring rules from structure of Constitution
 Intent of the framers/originalism
 Framers’ intent often not clear
 Why should we be bound by their dead hands?
o Doctrinal: applying rules generated by precedent
o Ethical: rules from morals reflected in Constitution
o Prudential/Pragmatic: balancing costs/benefits of rules
Judicial Review
Marbury v. Madison: The juridical branch has the final authority to interpret
the Constitution & to declare acts of Congress unconstitutional, i.e., to
conduct judicial review
 Federal courts may conduct judicial review if they have jurisdiction
over a justiciable claim
Martin v. Hunter’s Leasee: The US Supreme Court may review decisions of
the state courts for the purposes of establishing uniform interpretations of
federal law and the Constitution and to achieve substantial justice
Jurisdiction: the judicial branch’s jurisdiction extends to all cases, in law &
equity, arising under the Constitution, treaties, and laws of the US, along
with 8 other categories of jurisdiction
 OG & Appellate Jurisdiction
o A court exercising OG jurisdiction tries a case in the first
instance and renders a decision. A court exercising appellate
jurisdiction conducts judicial review to overturn, modify, or
affirm a decision made by a lower court or tribunal
Judicial Review in Operation: Justiciability
 Federal courts must refuse to hear a case if it is not justiciable (i.e.
appropriate for resolution)
o The Case-Or-Controversy Requirement: Article III limits the
power of the judicial branch to actual cases or controversies.
The case-or-controversy requirement encompasses the
requirements of standing, ripeness, and mootness, as well as
the prohibition on advisory opinions
 Standing: the standing doctrine exists to ensure that the
parties have a personal stake in the outcome of a case or
controversy and that the courts are in a position to
provide ant necessary relief
 The P must have both constitutional standing & prudential
standing
 To establish constitutional standing a P must prove:
(1) an injury-in0fact, (2) that was caused by the D,
and (3) that is redressable by the courts
 Of the 3 historical rules of prudential standing, the
third- party standing retains force as limitation;
under this rule, a P generally lacks standing to
assert the rights pf a 3rd party UNLESS (1) there is
such a close relationship between the a P & the 3rd
party that the 3rd party’s rights are inextricably
bound w/ the P’s activity, and (2) there are genuine
obstacles of the 3rd party asserting her own rights
 Ripeness: A P’s claim must be ripe for adjudication, i.e.,
present an actual controversy & involve wither a past
injury or a threat of real & immediate injury

EXAMPLE: A P wants to build a store on a certain piece of
property, but the city must first decide whether to allow the P
to build or not. In October, the P learns that the city will
probably reject his application. The city will issue its decision
in November.
o Can the P sue the city in October? Probably not. The
case is not ripe because the city has not issued its
final decision. The P did not suffer any harm yet & is
only predicting that he will suffer some harm in the
future.
 Mootness: Federal courts will dismiss a case for
mootness if a favorable decision will no longer have an
effect on the P; legal actions cannot be brought or
continued after the matter at issue has been resolved,
leaving no live dispute for a court to resolve Mootness is
where the court is not in a position to provide any relief – it’s too
late. This can happen if a law changes or if there is a change in a
party’s status.

EXAMPLE: A P sued after he was denied admission to a law
school. Later, he was admitted to the law school. When the
case came to the Supreme Court, the P was already
finishing his final year of law school. The Supreme Court
said it could not decide the case because the case was
moot. The P would never apply to the law school again – the
P no longer had a personal interest in the outcome of the
case.

If you are trying to decide whether a case is moot or not, ask
yourself, “Is the plaintiff still injured? Is it possible that the
plaintiff could be harmed by the D in the same way
again?” If the answer to both questions is NO -> the case is
probably moot
 Advisory Opinions: A federal court may NOT issue an
advisory opinion, i.e., an abstract opinion on the validity of
a law rendered in the absence of a concrete dispute
o The Political-Question Doctrine: federal courts will not decide
any matter that the Constitution has committed to the executive
or legislative branches or that lacks judicially manageable
standards for decision
Legislative Power (Article 1): Congress has enumerated powers, which are
expressly granted in the Constitution, as well as implied powers, which are
inferred from the text & structure of the Constitution
 Enumerated Article 1 Powers: the most widely used of Congress’s
enumerated powers are those related to commerce, taxing, as well as
war, defense, & foreign affairs
 Implied Powers: Congress has implued powers under the Necessary
& Proper Clause (Article 8), which authorizes Congeess to exercise
any incidential or implied powers that are useful or essential to the
exercise of its enumerated powers, so long as the ends & the means
do not violate the Constitution
McC v. Maryland:
 There is implied power to carry out expressly delegated power
 Court gives a broad reading to the Necessary and Proper Clause –
the federal government has to act reasonably
o Constitution provides Congress with various powers. Such
powers imply the ordinary means of execution; Congress
should have the ability to select those means.
 Let the end be legitimate, let it be within the scope of the
constitution, and all means which are appropriate, which
are plainly adapted to that end, which are not prohibited,
but consist with the letter and spirit of the constitution, are
constitutional.
 Marshall makes a structural argument:
o Necessary and Proper Clause: (contained in section 8) the
necessary and proper cross is a grant of power because it is
section 8, not of the limitations in section 9
 Federal law is supremacy over state laws & states cannot interfere
with federal powers
 Did Congress have the power to create a national bank?
o Although there may not be an express power to create the
bank, it is fairly induced that when the Constitution gave
Congress certain enumerated powers it also gave Congress the
right to effectuate those powers. It is an implied power.

Commerce Clause
The Commerce Clause grants Congress the power “to regulate commerce
with foreign nations, and among the several states, and with the Indian
tribes” (Article 1 Section 8 Clause 3)
 The most significant aspect of this clause is the power to regulate
commerce “among several states” aka regulate interstate commerce
 The Supreme Court had interpreted the Commerce Clause broadly to
allow Congress to regulate the full range of interstate commercial
activity, including:
o The uses of the channels of interstate commerce;
o The instrumentalities of interstate commerce, or persons or
things moving in interstate commerce; and
o Economic activity that substantially affects interstate
commerce, wither singly or in the aggregate
 Gibbons v. Ogden
o Commerce does not just mean the buying & selling of goods,
but also the intercourse in them
 Commercial intercourse- all aspects of commercial
enterprise from production, manufacture transportation, &
sale
 Anything that makes commercial transactions possible is
subject to Congress’ power over commerce.

o The Interstate Commerce Clause does not apply to commerce
happening exclusively within states
 Congress may regulate all commerce that has interstate
effects
o Congress’s power to under the Interstate Commerce Clause is
complete unto itself
i.
bring about the change that you want.
The 1890s-1937: A Limited Federal Commerce Power
United States v. E.C. Knight (1895):
 Congress cannot regulate that which proceeds commerce ->
manufacturing
 A sugar refining company gained a monopoly in the industry by
purchasing several other refineries. Controlled 98% of the sugar
production in the US.
 Issue: Can a monopoly be suppressed under the Sherman Act?
o Court concludes that this is manufacturing, and this is
something that can’t be regulated by the commerce clause.
 Manufacturing is not commerce -> Congress can only regulate those
things that directly affect commerce
 Distinction between direct/indirect effect, production/commerce,
local/commerce
 Court distinguishes between local and commerce
o Production is local rather than national
 Represents an overly strict interpretation of interstate commerce
o Basically, until goods are moved into interstate commerce, they
are not subject to federal government regulation
Champion v. Ames (1903): Congress’ Attempt to Regulate Morality
 Congress banned the transportation of lottery tickets
 Holding: Lottery tickets are subject of traffic -> Constituted interstate
commerce that could be regulated by Congress under the Commerce
Clause
 Argument: Congress was aiming to protect the morals of the U.S.,
and thus acting outside it’s bounds
 However, Congress has a legitimate purpose from being the
instrument of a moral influence that all the states agree ought to be
wiped out -> Congress is protecting interstate commerce from being
the agent of immorality
 Thus, the means are appropriate
o McCulloch says it is not for the court to determine the
appropriateness of the means chosen
 Congress alone can regulate all aspects of interstate commerce and can
do so in whatever manner it deems appropriate
 Congress’s plenary power includes the power to prohibit items (such as
lottery tickets) that are deemed to be harmful to the welfare of the people
of the United States
 Congress has the sole authority to rule that lottery tickets are harmful
and because it does so, it follows that Congress’s power to regulate
interstate commerce extends to allow it to prohibit certain items from
being entered into the stream of interstate commerce
 Dissent of Fuller: If congressional motive is not relevant, we have
converted the commerce clause from a limited enumerated power to
police power
Hammer v. D:
 The Keating-Owen Act, which had regulated child labor, prohibited
the interstate shipment of goods produced in factories or mines in
which children under age 14 were employed or adolescents between
ages 14 and 16 worked more than an eight-hour day
 Holding: The Keating-Owen Act exceeded federal authority and
represented an unwarranted encroachment on state powers to
determine local labor conditions

While, Congress has the power to regulate interstate commerce, “the
manufacture of goods is not commerce”
 Furthermore, the Court reasoned, the 10th Amendment made clear
that powers not delegated to the national government remained with
the states or the people
o The power “to regulate the hours of labor of children in factories
and mines within the states, is a purely state authority”
o If states with very restrictive child labor laws were at an
economic disadvantage, Congress did not have the
constitutional power to impose uniform rules for the country
US v. Darby:
 The federal statute imposing maximun-hour and minimu-wage
requriemens for all workers in ineternatate commerce is constituionl
Close & Substantial Cases
Shreveport Rate Cases:
 Cost more to go from Marshall, TX to Shreveport, Louisiana than
from Marshal, TX to Dallas even though Shreveport, Louisiana was
much closer to Marshall than Dallas. There were cattle both in
Shreveport and Dallas. Both cities were competing to get the cattle
to market via Shreveport. The Texas Railway Commission sets the
rate at which is charged between transportation in Texas. Sets a
much higher rate between Shreveport and Marshall as opposed to
Shreveport to Dallas.
 Under the Sugar Trust line of cases, one would say this is okay b/c
Marshall is located in Texas.
 Holding: Congress regulated the purely intrastate activities of the railway
because those activities had a close and substantial relation to its
interstate activities -> Whenever interstate and intrastate transactions of
carriers are so related that the government of the one involves the
control of the other, Congress, and not the state, is entitled to issue the
final and dominant rule that regulates such activities
 Congress may regulate operations in all matters having a close and
substantial relation to interstate traffic, to the efficiency of interstate
service, and to the maintenance of conditions under which interstate
commerce may be conducted upon fair terms.
o The authority given to Congress to regulate interstate commerce
under the Constitution is absolute; It necessarily includes the right
to enact all appropriate legislation and adopt measures to protect
and further interstate commerce
 Test: matters must have a close and substantial relation before
Federal Government can take action
o Local rates for rail freight and other transport have a very close
and significant effect on interstate commerce
 Why were they willing to depart from Sugar Trust?
o The Court was responding to the fact that this was a railroad
o Railroads had a sort of ‘mystique’; “if there was anything that
captured the imagination of commerce, it would have been
railroads”
o The image of trains counterbalanced the other concerns (too
strong federal government and laissez fair economics)
Limitations on the Stream of Commerce Cases
A.L.A. Schechter Poultry Corporation v. United States: The Sick Chicken
Case
 Congress enacted a law governing wages, working conditions, and
prices for poultry transported in interstate commerce
 Could the Federal Government regulate chickens once they had
come to rest?
o The flow of interstate commerce had ceased; the chickens were
no longer going to be transported out of NY
o The question is not whether Congress has good intentions ->
The question is what the limitation of powers is
 It is a local activity that can’t be reached by the federal government; It
is another Sugar Trust case
 Congress cannot regulate with respect to collective bargaining with
conditions -> If Congress would be able to regulate anything that
indirectly affected commerce, it would stretch the commerce clause
too far
o “…hours of employees in the internal commerce of the state,
because of their relation to cost and prices and their indirect
effect upon interstate commerce, it would seem that a similar
control might be exerted over the other elements of cost, also
affecting prices…”
Carter v. Carter Coal Co.: Last in the Line of E.C. Knight Reasoning
 Congress passed, pursuant to its commerce power, a law regulating
the management-employee relations in the coal mining industry. The
law is being challenged on the ground that Congress does not have
the power to regulate such activities because they do not constitute
“interstate commerce”
 Holding: The BCCA is an unconstitutional extension of Congress’s
Commerce Clause power because it accords to a national commission
the ability to regulate purely local issues relating to the production of coal
o The manufacturing of coal at local mines and issues pertaining to
the wages, hours, and organizing of local employees are local
issues, affecting only the particular state in which these activities
take place
o Local activates are outside of the Congress’ realm of authority
under the Commerce Clause; The incidents leading up to and
culminating in the mining of coal do to constitute interstate
commerce (they are purely local in character)
 “Mining brings the subject matter into existence,
commerce disposes of it”

 The fact that the coal eventually will be introduced into the stream of
interstate commerce is immaterial -> Congress may not attempt to
regulate the coal before that act occurs
 In the Constitution, commerce is defined as “intercourse for the
purposes of trade” between and among the several states
o Commerce includes all aspects of trade relating to the sale and
transportation of commodities
 However, commerce has NOT been defined to include the
manufacturing and production of commodities as it occurs within an
individual state
 If it is local in nature, only has an indirect effect on commerce and
cannot be controlled by commerce
US v. Lopez:
 Lopez marked the first time in more than 50 years that the Supreme
Court limited Congress's ever-growing commerce power ***

 The federal Gun-Free School Zones Act of 1990 was unconstitutional
because Congress, in enacting the legislation, had exceeded its
authority under the Commerce Clause
 To support the constitutionality of the Act, the government argued
that possession of the gun in a school zone:
o Could result in a violent crime that would affect the national
economy
o Significant cost of insurance associated with violent crime
affects the economy because the expense is spread throughout
society
o The economy is harmed when individuals refuse to travel to
areas they believe to be unsafe; The presence of guns in the
schools presents a serious threat to the learning environment;
this in turn could result in a less-educated citizenry, which
would have an obvious adverse impact on the country

Holding: Although Congress has the authority to regulate interstate
commerce, possession of a gun in a school zone was not an
economic activity (it was a criminal act), but one that should be
handled at the local and state level, not by the federal government ->
Therefore, the 1990 Gun-Free School Zones Act did violate the
Constitution as it infringed on state powers
 Regulating guns in local schools is not sufficiently related to
Congress's Commerce Clause power to pass constitutional muster

“To uphold the Government's contentions here, we would have to pile
inference upon inference in a manner that would bid fair to convert
congressional authority under the Commerce Clause to a general
police power of the sort retained by the States.”
 The Court maintained that Congress could constitutionally regulate 3
things under the Commerce Clause: instrumentalities of commerce,
the use or channels of commerce, and activities that substantially
affect interstate commerce
 First, the act contains no provisions stating that the unlawful
possession must somehow be related to interstate commerce
 Second, Congress presented no hard evidence showing such a
substantial relation, but only "theories" positing "tenuous" links
between violence in schools and injuries to the national economy.
Accordingly, Congress had overstepped its limited Commerce Clause
powers and instead
 Regardless of how broadly one might seek to construe its terms, the
Gun-Free School Zones Act was a criminal statute and had nothing to
do with interstate commerce or economic activity

Power to regulate interstate commerce
Historical Argument: For the first 100 years following the adoption of the
Constitution Congress enacted little legislation under the Commerce
Clause, which is evidence that the term commerce was intended to be
interpreted narrowly.
Justficibility
 Need an actual case or controversy (based on established facts) between adverse parties
o Collusive suits are not sufficient
 Does the P have standing to bring the suit?
o Injury in fact
 Generalized grievance-] unlikely to work
 Lujan
o Causation
 The injury must be fairly traceable to the D’s conduct/ action
o Redressability
 Ripeness
Commerce Cluase:
Under Article 1 Section, The Commerce Clause authorizes Congress to regulate
interstate and foreign commerce. Congress can regulate three categories of activity
under the Commerce Clause: (1) channels of interstate commerce; (2)
instrumentalities of interstate commerce, as well as people and objects in interstate
commerce; and (3) intrastate activities that substantially affect interstate commerce.
Uncle Article 1 Section, Congress has the power to tax
 Some reasonable relationship to revenue production
Uncle Article 1 Section, Congress has the power to spend to proivde for the common defense
and general welllfare.
 SD v. Dole: can conditional federal fundinf the indrecityl regulate state behvaior
o 5%
Under Article 1 Section, Congress has the power to regulate foreing and interstate commerce
 Channels of interstate commerce
 The instruments of interstate commerce
 Any activities that have a substantial effect on instertate commerce
o Can INTRAstate activity have a substantial effect?
o Filburn: Aggregation doctrine- if the court could concieice of a rational basis on
which Congress could conclude that the activitiy in the aggragte substantially
affects interstate commerce
 Economic/ commercial purposes
Dormant Commerce Clause:
 The constitutional grant to Congress of the power to regulate interstate comer also limits,
by implication, the right of states to adopt laws that regulate interstate commerce
 Step 1: Does the state/ local law facially conflict w federal law? If so, Supremacy Clause
 Step 2: Does the state/ local law facilities discriminatory against IC or otherwise
operating as a trade barrier against out-of-state interests?
o If so, subject to strict scrutiny and is per se unconstitutional
 Least restrictive means?
 Compelling government interest?
 See Maine v. Taylor
 Step 3: Does the nondiscriminatory state/local la impose an incidental burden on IC?
o Pike Balancing Test: a nondiscriminatory state/local law that imposes an
incidental burden on IC is unconstitutional if:
 The law fails to effectuate a local legitimate public interest; OR
 The burden imposed on IC is clearly excessive in relation to the putative
local benefit
 Eceptoion: If the state is acting as a market participate, not a regulator, the
state may favor its own citizens
Pike:
