Constitutional Law Outline Prof. Malamud Fall 2003

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Constitutional Law Outline


Prof. Malamud

Fall 2003


  1. Views of the Constitution

    1. Aspirational: interpret constitution based on idea that framers didn’t mean to fix their opinion in time.

      1. Madison: “Must exist over time to acquire the reverence necessary for its existence.” Constitution must have contemporary relevance.

    2. Kramer: Constitution is as a form of customary law that is refracted through a text over time. We have been making the Constitution over time = solves the dead hand problem.

      1. Departmental constitutionalism, not direct popular constitutionalism. Have to trust our elected officials to be representatives

      2. Problem: the public is a “black box,” doesn’t articulate reasons.

    3. Constitutional Basics:

      1. Original constitution based on federalist idea that structural components protects individual rights, thus no need for Bill of Rights

        1. Federalism = unique idea that 2 governments are better than one. Remote central power should have limited power to allow for individual local control.

        2. Not just a matter of administrative convenience.

      2. SOP: vigorous and independent authority of each branch

      3. C&B: interplay between branches, system working together

        1. Article I, section 8 – lays out specific congressional powers

      4. Federalists vs. anti-federalist:

  2. Judicial Review
    1. Marbury v. Madison: created judicial review: “it is emphatically the province and duty of the judicial department to say what the law is.” SOP.


      1. Issue: sealed commissions not delivered, are the appointments valid?

      2. Judiciary deciding the extent of its own power even though it could have avoided constitutional question, since no jurisdiction!

      3. 2 versions of judicial review – Unclear which one Marshall advocates

        1. Diffuse constitutionalism: decision binds 2 parties before the court, if no case comes before court other branches can decide on const.

        2. Judicial Supremacy view: if court gets an issue it can rule broadly, so can declare statute unconstitutional, not just uncon in case-at-hand

      4. Why have judicial review?

        1. Protect minorities (counter-majoritairan view)

        2. Protect against collective action problems.

    2. McCullough v. Maryland: Bank of the United States is taxed by MD

      1. Hamilton proposed central bank; Madison fought against it arguing for limited Congressional power

      2. 1st question: Does Congress have power to create federal bank? YES

        1. Defer to Congress: nation has acquiesced to bank; individual rights not implicated; economic reliance

        2. But Congress’s purpose cannot be pretextual.

      3. Federalism question – MD says it can interpret constitution since it emanated from the states, and states are still sovereign but Marshall says the people ratified, they are the authority, not the states

        1. “the federal government, though limited in its powers, is supreme within its sphere of action.”

      4. “It is a Constitution we are expounding”

      5. 2nd question: Can Maryland tax the bank of the U.S.? NO
        1. Review of state legislation, less controversial than Marbury = recognition that no neutral party between state/feds


        2. Review of state Supreme Courts more controversial

    3. Popular Constitutionalism

      1. Is every protest acceptable under popular constitutionalism? (i.e. Southern response to Brown)

    4. The Framing period:

      1. Anti-federalists  Republicans (Jefferson, Madison).

  3. Slavery in the Constitution

    1. Is the constitution pro-slavery?

      1. Garrison: con’n protects institution of slavery, part of fundamental structure; anti-slavery judges should resign – is compromise morally justifiable?

      2. Douglas: Constitution’s text allows for abolition. 3/5 deprives slave states of representation; allows for the abolishment of slave trade (belief that this would abolish slavery); Fugitive Slave Clause doesn’t apply to slaves since “no contract binding them to serve,”

    2. Constitutional provisions regarding slavery:

      1. 3/5 clause – Representation based on total number of whites (many of whom couldn’t vote) + 3/5* number of blacks

        1. Proportion created to apportion costs of the Revolutionary War

        2. Clause hurt South [if ration was 1:1 they’d get more representation].

      2. International Slave Trade: Explicitly allowed until 1808 when Congress has power to outlaw

        1. End of slave trade supported by Upper South (i.e. VA)

      3. Fugitive Slaves
        1. Little discussion: Northerners didn’t want free blacks (or wanted private property protected) vs. didn’t recognize it would be important issue?


    3. Historical setting:

      1. No one argued for complete equality – send freed blacks to Liberia

      2. Haitian revolution of 1791; wanted to quash domestic rebellions

      3. Many abolitionists in 1780s believed that slavery was in decline

      4. Black soldiers mostly on British side during Revolutionary War; colonist’ fears that revolutionary rhetoric would empower blacks

Jay Treaty – Treaty with Britain that required Brits to pay for or return any slaves who joined the British army = protection of slave-owners’ rights

  1. Early Commerce Clause

    1. Supremacy Clause (Article VI Section 2): where state and federal governments create law on point, federal law governs

    2. Gibbons v. Ogden- NY State shipping licensing conflicted with Congressional system of licensing ships on interstate waters

      1. Holding: Congressional regulation of interstate commerce preempts inconsistent state regulation, but more interested in…

      2. Discussion of dormant commerce clause – where Congress has not enacted on point legislation can the state act.

      3. Marshall implies that federal exclusivity must be the case practically.

        1. but state might still be able to enact the same legislation per its police powers

    3. Wilson v. Blackbird Creek Marshdam across navigable waterway, as long as there is no Congressional legislation states can act. No usurpation of commerce power.
    4. Mayor of the City of New York v. Miln – NY Law required shipmaster to post security for entering noncitizen, is this commerce regulation or police power?


      1. Question of whether legislation whose purpose is protecting general welfare can use means similar to restriction on commerce?

      2. Strong endorsement of state power: if purpose is legitimate, any means are justified even if that affects interstate commerce. Upholds law.

      3. Story’s dissent: Congress has complete power to regulate commerce and this means employed here interferes with that power

      4. Dormant Commerce Clause

    5. Cooley v. Board of Wardens –PA law required ships to hire local harbor guide

      1. Is right to regulate commerce exclusive? NO, Congress’s legislation indicates desire to leave regulation to the states

      2. Functional approach, pop’r after 1937 (case ignored in its time).

  2. Slavery and the Civil War

    1. Groves v. Slaughter (1831) MI Constitution forbade importing slaves

      1. Restriction on interstate commerce? NO. Slaves aren’t commerce & power over slavery belongs to the states.

      2. Outcome desired by anti-slavery states which wanted to prohibit slavery; didn’t want this power to be exclusive to federal government

      3. Commerce clause, dormant commerce clause

    2. Prigg v. PA (1842) – Prigg, slave-hunter, convicted under PA statute designed to prevent self-help. Federalism.

      1. Question of who has power to enforce the fugitive slave clause?

      2. Holding: PA law unconstitutional, only Congress can enforce clause (which they did in 1793 Act), Congress’s interpretation supreme.
        1. Not only possible result: could have concurrent power to regulate, or even only states could have power


      3. Background: common law right of recapture/self-help if doesn’t disturb the peace. PA law part of abolitionist movement.

      4. Story: judge is tied by position law. Fugitive Slave Act, enacted in 1793 to enforce clause, required judge for removal, but not for capture.

        1. Why does Story defect? Nationalist, assert federal power!

          1. Fears threat to the union, FSA essential.

    3. Cover’s article: If you have an anti-slavery judge, how hard should that judge work the positive law to get it to come out the way he wants it to?

      1. Prigg caused rift in anti-slavery movement as it ended the strategy of fugitive litigation (i.e. broad state power, jury trial, evidence, etc.)

    4. Dred Scott v. Sandford (1857) – freedom suit!

      1. Historical context:

        1. Increasing radicalization in 15 years since Prigg. Northerners’ rhetoric attacked entire morality of Southern culture.

        2. Missouri Compromise (1820): admitted Missouri as a slave state but prohibited slavery in the territories north 36º, 30’

        3. Compromise of 1850: CA admitted as Free State, territories of NM and UT slavery TBD, no slave trade in DC, passed Fugitive Slave Act of 1850, stringent law.

      2. 2 questions presented:

        1. Jurisdiction: Does diversity jurisdiction allow federal court to hear suit by blacks – i.e. could a state, by granting citizenship, require that blacks get the benefits of being a citizen of the US?
          1. Holding: No. Tawney looks at the condition of blacks at the time of ratification. Since even in free states they were oppressed (no intermarriage!) clearly constitutional language couldn’t have included blacks.


          2. BUT clause is about “citizens of different states” federal citizenship isn’t at issue (non-textualism) [Tawney concedes that blacks can be state citizens]

            1. Citizen of a state in a federal sense.

          3. ALSO citizenship is a bundle of rights; many citizens aren’t equal (i.e. women couldn’t vote); and ability-to-sue in federal court is low-level privilege.

        2. Missouri Compromise: When Scott entered territory above 36º, 30’ did he became free since no slavery existed there?

          1. Holding: Not free because Missouri Compromise unconstitutional. No federal power to ban slavery in new territories – why?

            1. Territories aren’t colonies; they are inchoate states and can’t interfere with settlers’ rights.

            2. Can’t bar Southerners from moving into territories with their “property”

            3. Dissent: otherwise you are effectively barring those who find slavery noxious. Takes pragmatic approach of dividing territory

      3. Note: given that court had no jurisdiction Court shouldn’t have answered MC question. But Tawney was telling Congress that territorial compromise won’t work long-term and they needed to take another approach.

        1. Tawney took a judicial supremacist approach here. Separation of powers problem: who should decide contentious issues? Court cannot enforce, but can show leadership, start the debate.

        2. Concern about schizmogenesis –mutual more extreme-making.

        3. Departmental: Maybe ever branch is obligated to try to fix problem if it comes into its purview.

    5. Lincoln and Secession
      1. Farber vs. Posner: Farber is centered on the question of the rule of law and Posner is far more pragmatic.


      2. After Lincoln comes into office SC succeeds. While Congress isn’t in session Lincoln suspends habeas corpus, blockades Southern ports, closes the mails, expands the military, and borrows money.

      3. Lincoln has pragmatic view of his duty, not focused on constitutionality: “Are all the laws but one to go unexecuted and the government itself go to pieces lest that one be violated?”

      4. Federalism Issue: is succession constitutional? Even if it isn’t can federal government resist with force? (Buchanan says no).

      5. Ex Parte Merryman: Tawney says cannot suspend habeas corpus without Congressional approval. (Fundamental right).

      6. Prize Cases – Was Southern Blockade constitutional? Yes, despite SOP, there was already war, Lincoln did what was necessary (and Congressional ratification is evidence that it was necessary).

        1. Dissent: Congress must declare war before it is one and before the President has wartime power to confiscate property.

        2. Can Congress acquiesce to SOP violation?

      7. Emancipation proclamation 1863: is this constitutional? He doesn’t free slaves in union states. Justified by military rationale (freed slaves can enter the Union army) but weak argument. SOP – Congress approves action after the fact.

        1. No compensation (as required by eminent domain) not by arguing that slaves not property but idea of military necessity

  3. Reconstruction

    1. Thirteenth Amendment – abolished slavery, ratified shortly after War

    2. But Black Codes were adopted in Southern states to oppress blacks = restrained economic rights (i.e. specific performance on labor contracts)
    3. Civil Rights Act of 1866: Protects ‘civil’ rights, not ‘political’ rights. No black suffrage only civil rights: contract, file law suits, protection of property.


    4. Re-empowerment of Southern Governments: White Southerners needed to take a loyalty oath; when 10% of 1860 voting population are loyal then can form new government.

      1. If secession was null and void how can Congress not seat representatives?

    5. Johnson:

      1. Saw reconstruction as about changing the class structure of the South (so those with >$20K of property have to swear loyalty) also expansion of executive power since Johnson responsible for amnesty

      2. Increase in amnesty  less land for Freedman’s Bureau to redistribute.

      3. Johnson vetoes funding of Freedman’s Bureau; concern about creating dependency among freed slaves - free market will protect rights(!)

    6. Fourteenth Amendment, 1868

      1. Dispute about legitimacy: 39th Congress excluded representatives from former confederacy. So 14th amendment passed by 2/3 of a Congress that excluded political opponents and ratified by state governments that were forced to ratify to be allowed back into Congress

        1. Does this illegitimacy lead to narrow reading or do we argue for broad meaning since stakes were high enough for revolution (less concerned with consent of defeated)?

        2. Court ignores legitimacy issues, reads it as a regular amendment – dismissed Georgia v. Stanton (1867) saying this is a political question about sovereignty rights, not private rights.
          1. Reconstruction Act required black male suffrage as a condition of reentry. SOP. Forcing southern states to go further than Northern ones.


      2. Meaning of 14th Amendment:

        1. Implementing Civil Rights Act (i.e. not granting political rights) vs. broader mandate(i.e. inequity in education)

        2. Fundamental change in federalism balance of power – gave national government vast new power over the states

    7. 1868-1871 – Massive period of Klan Violence reacting to success of reconstruction at creating bi-racial political institutions.

    8. Court curtails reconstruction (see cases below)




  1. Reconstruction Cases

    1. Slaughter-house Cases, 1873: SDP case, butchers sued to invalidate law that required them to use one central slaughter-house. Law upheld!

      1. Were reconstruction amendments only about slavery OR was slavery an issue of the problem of free labor, lack of economic rights?

      2. Neutralized the privileges and immunities clause of the 14A.

      3. Is regulation w/i state’s power? Court says Yes.

      4. Does 14A restrict this power? No. But leaves door open for due process challenges if the facts change.

      5. First decision evaluating the 14th amendment

    2. Strauder v. West Virginia (1880): court reverses murder conviction where black defendant was convicted by a jury which – by statute – excluded blacks

      1. Early 14th amendment case, race case. Stretches 14A to political right, construes amendment liberally.
      2. Discrimination against “Celtic Irishmen” is inconsistent with 14A, EP, color-blindness.


      3. Outlaws de jure discrimination, while still allowing de facto discrimination based on literacy tests, poll taxes, etc.

        1. There may be a difference, however, because it is “costlier” to have poll tax – poor whites are also excluded.

      4. Dissent: 14A protects civil rights, not political ones!

    3. The Civil Rights Cases, 1883: Can Congress enact the Civil Rights Act of 1875 outlawing race discrimination in public accommodations per its enforcement power in §2 of 13A or §5 of 14A? NO!

      1. §2 of 13A: Legislation can be corrective, but has to deal with badges of slavery. Rights needed ensure no involuntary servitude are contract rights to ensure free labor, not social rights (cf traveling salesman).

      2. §5 of 14A: 14A says “no state shall,” doesn’t address private actors NOR does it address state inaction, only state action. Can only have corrective, not direct legislation.

        1. Dissent: this is about quasi-public entities (i.e. hotels) so state inaction is tantamount to action given context of regulation

      3. State common law held that denying anyone public facilities was unlawful, so Ps had state law remedy. Federalism.

      4. Lynching is the unwritten repercussion of this case; by requiring state action cannot get to “private” lynching (cops were actually complicit)

      5. After this case, you have to proceed under the 13A, not 14A if you’re dealing with direct legislation as opposed to corrective.
        1. See Jones v. Alfred Mayor: upheld Congressional law banning refusal to have commercial dealings with black person based on §2 of 13A. Can see this as more-than-remedial.


    4. Plessy v. Ferguson, 1896: upheld LA statute requiring railroad to have separate cars for blacks and whites as not violating 13A or 14A.

      1. Plessy Advances 3 arguments:

        1. P was deprived of the property right of whiteness since he “looked white” and was octoroon. Court quickly rejects this theory, no right to “pass” as something you’re actually not!

        2. Violates 13A “badges of slavery.” Court says no, this isn’t slavery, doesn’t destroy the legal equality of the races

          1. Harlen’s dissent: statute says blacks are inferior; created to keep blacks away from whites, not opposite.

        3. Violates 14A, see Strauder. Court says no, 14A wasn’t designed to affect social rights, this isn’t political issue.

      2. Black, especially wealthy blacks, saw this as a dignitary issue, class issue: equal would be a black ladies’ cars, black first class, etc.

      3. Did Plessy lead to segregation or was Jim Crow a natural outgrowth of the withdrawal of federal troops from the South in 1887 (Redemption)? Should Court have taken leadership role? SOP issue.

    5. Note: the Strauder and Plessy Courts use language of anti-subordination AND color-blindness. Cases don’t clearly illuminate originalist approach to 14A.

    6. Giles v. Harris, 1903: voting board refuse to register black man; Giles argued that this circumvented 15th amendment.

      1. Not in casebook, not in canon!
      2. Court says it can’t reach political action, this isn’t a legal question


      3. States are taking black voting rights away; Congress is acquiescing; Court says voting rights enforcement is Congress’ job (but they wont commit federal troops); Court is impotent. SOP!

        1. But coalitions (poor whites + blacks) could have formed, certainly won’t happen if court abstains.

        2. Also Congress says Courts should handle this.

      4. “15th amendment suspended in fact” – Harpers




  1. Women and Minorities in Reconstruction Era

    1. Treaty of Guadalupe-Hidalgo (1848): annexes California, New Mexico, Arizona, etc from Mexico which has different (better) racial politics.

      1. Treaty ensures that Mexican citizens (race-neutral) can become U.S. citizens, but what matters is state citizenship and that’s not protected

    2. American Indians: Elk v. Wilkins (1884), p. 256, assimilated Indian brings 15A suit to be allowed to register to vote. Court says no right to vote, never naturalized; he surrendered his tribal affiliation but U.S. didn’t accept.

      1. Dissent: constitutional language of “Indians not taxed” but Elk was taxed, he is one of the Indians who is a citizen

    3. Women: unsuccessfully tried to use 14A to argue for enfranchisement. Idea of wardship, women represented by their husbands/fathers.

    4. Mormons, Reynolds v. United States: Court holds that anti-bigamy statutes doesn’t violate Free Exercise by viewing polygamy as Asiatic and barbaric.
    5. Puerto Rico: Downes v. Bidwell: holds that PR is territory, not state,


      1. We have to be able to annex territory and also resist incorporating “foreigners and their habits” into the US.

      2. Distinguished Dred Scott, by saying there are natural rights (for everyone) and artificial rights (necessary for political system) and those in territories don’t get the latter.

    6. Chinese Exclusion Case (1889): Chinese citizen laboring in Y.S. visited China, not allowed re-entry. Does this violate U.S.-China treaties?

      1. Court says it doesn’t enforce promises with other nations, SOP

      2. Government can exclude non-citizens, especially those non-assimilable foreigners [likely true since 95% male].

      3. Similar to Harlen in Plessy describing Chinese as the most alien, as a way to raise-up position of blacks.





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