PSC Final

Brutus, Letter #1

Anti-Federalist essay (1787) arguing that the proposed Constitution would create a consolidated national government with virtually unlimited taxing and “necessary and proper” powers, destroying state authority and liberty; claims a large republic cannot sustain genuine representation and warns that vague judicial and legislative power will ultimately erode free government.

Federalist #10

Madison (1787) on faction; defines factions as groups adverse to rights or the common good, argues you cannot eliminate causes of faction without destroying liberty, so you must control their effects; claims an extended republic with many competing interests and representation makes it harder for a majority faction to form and oppress minorities than in a small republic.

Federalist #51

Madison (1788) on separation of powers and checks and balances; “if men were angels” argument that each branch must have constitutional means and motives to resist encroachments by the others; combining separation of powers with federalism creates a “double security” for individual liberty by multiplying power centers.

Brutus, Letter #15

Anti-Federalist critique of the federal judiciary; argues life tenure, vague constitutional language, and final authority of the Supreme Court will make judges effectively supreme over the legislature and people; predicts aggressive judicial review and a gradual consolidation of national power at the expense of states and liberty.

Federalist #70–73

Hamilton essays (1788) defending an energetic, unitary, independent executive; unity, duration of office, adequate salary, and the veto power are needed for decisiveness, secrecy, and accountability; argues against a plural executive, defends re-eligibility of the president, and justifies the veto as a shield against legislative encroachments and bad laws.

Jefferson’s Opinion on the Constitutionality of the Bank

1791 memo to Washington opposing the national bank; Jefferson reads Congress’s powers narrowly and insists “necessary” in the Necessary and Proper Clause means indispensable, not merely convenient; argues bank creation is not an enumerated power and using implied powers so broadly would erase meaningful limits on Congress and endanger reserved state powers.

McCulloch v. Maryland

1819, Marshall; facts: Maryland taxed the Second Bank of the United States and McCulloch refused to pay; questions: (1) can Congress charter a bank, (2) can a state tax it; holding: Congress may create a bank as an implied power under the Necessary and Proper Clause, and states cannot tax valid federal instruments because “the power to tax involves the power to destroy”; adopts a broad “let the end be legitimate… all means plainly adapted” test and affirms national supremacy.

Wickard v. Filburn

1942, Jackson; facts: Filburn grew wheat beyond federal quota under the Agricultural Adjustment Act, intending to use it on his own farm; question: can Congress regulate wheat grown for personal consumption under the Commerce Clause; holding: yes, because homegrown wheat, when aggregated across many farmers, has a substantial economic effect on interstate commerce; establishes the “substantial effects” and “aggregate effects” doctrines, greatly expanding Congress’s commerce power.

United States v. Lopez

1995, Rehnquist; facts: the Gun-Free School Zones Act made possession of a gun near a school a federal crime; question: did this exceed Congress’s Commerce Clause power; holding: yes, because mere gun possession in a local school zone is non-economic and too remote from interstate commerce; identifies three categories Congress may regulate (channels, instrumentalities, and economic activities with substantial effects) and marks the first major modern limit on the commerce power.

Everson v. Board of Education

1947, Black; facts: New Jersey reimbursed bus fares for all students, including those attending Catholic schools; holding: incorporates the Establishment Clause against the states and upholds the reimbursement, treating it as neutral aid to parents/children rather than direct aid to religion; uses “high and impregnable wall of separation” language while still allowing neutral, indirect benefits that reach religious schools.

Abington Township v. Schempp

1963; facts: public schools required Bible readings and the Lord’s Prayer each day; holding: unconstitutional under the Establishment Clause because the exercises had a clearly religious purpose and effect; articulates a purpose–effect test (invalid if purpose or primary effect advances or inhibits religion) and distinguishes devotional exercises from objective study of religion in schools.

Lemon v. Kurtzman

1971; facts: state programs reimbursed parochial school teachers for teaching secular subjects; holding: unconstitutional due to excessive entanglement between government and religion; announces the Lemon test: (1) law must have a secular purpose, (2) its primary effect must neither advance nor inhibit religion, and (3) it must not foster excessive government entanglement with religion.

American Legion v. American Humanist Association

2019; facts: 40-foot World War I cross monument on public land challenged as establishment; holding: monument is constitutional; Court presumes longstanding religious symbols are valid and emphasizes history and tradition rather than rigid application of Lemon, making it harder to attack old religious displays under the Establishment Clause.

Sherbert v. Verner

1963; facts: Seventh-day Adventist denied unemployment benefits after refusing Saturday work; holding: denial violates Free Exercise; creates the Sherbert test: if a sincere religious belief is substantially burdened, government must justify the burden by a compelling interest pursued through the least restrictive means (strict scrutiny for burdens on religious exercise).

Employment Division v. Smith

1990, Scalia; facts: Native American employees fired for sacramental peyote use and denied unemployment benefits under a neutral drug law; holding: Free Exercise Clause does not require religious exemptions from neutral, generally applicable laws; rejects routine strict scrutiny for such laws and largely displaces the Sherbert regime, leading to political responses like the Religious Freedom Restoration Act (RFRA).

Fulton v. City of Philadelphia

2021; facts: Catholic foster agency refused to certify same-sex couples; city stopped referring children under a contract that allowed discretionary exemptions; holding: city’s policy is not generally applicable because it permits individualized exemptions but denies religious ones, so it triggers strict scrutiny and fails; narrows Smith by stressing the importance of true neutrality and general applicability in Free Exercise cases.

Heller v. District of Columbia

2008; facts: D.C. banned handguns and required firearms in the home to be kept inoperable; holding: Second Amendment protects an individual right to possess firearms unconnected with militia service, particularly for self-defense in the home; rejects purely collective-right reading, while recognizing longstanding limits (felons, mentally ill, sensitive places, dangerous and unusual weapons).

New York State Rifle & Pistol Ass’n v. Bruen

2022; facts: New York required “proper cause” (special need) to obtain a public-carry handgun license; holding: unconstitutional because ordinary law-abiding citizens have a right to carry handguns in public for self-defense; adopts a “text and history” test—if the conduct is covered by the Second Amendment’s text, government must justify the regulation by pointing to a well-established historical tradition of similar firearm regulation, rejecting means–end scrutiny.

Olmstead v. United States

1928; facts: federal agents tapped phone lines outside the defendant’s home and office without physical entry or warrant; holding: no Fourth Amendment violation because there was no physical trespass on “persons, houses, papers, or effects”; exemplifies the old “trespass doctrine,” focusing on physical intrusion instead of privacy; Brandeis’s dissent anticipates a broader privacy-based understanding.

Katz v. United States

1967; facts: FBI recorded Katz’s conversation by attaching a listening device to the outside of a public phone booth; holding: this was a Fourth Amendment search; “the Fourth Amendment protects people, not places”; Justice Harlan’s concurrence creates the reasonable-expectation-of-privacy test: a search occurs when a person exhibits an actual (subjective) expectation of privacy and society recognizes it as objectively reasonable.

Carpenter v. United States

2018; facts: government obtained long-term cell-site location information (CSLI) from a phone company without a warrant; holding: acquiring detailed, long-term CSLI is a Fourth Amendment search; the traditional third-party doctrine does not automatically apply to pervasive digital location records; generally requires a warrant supported by probable cause.

Roper v. Simmons

2005; facts: juvenile offender sentenced to death for crime committed under age 18; holding: executing individuals for crimes committed as juveniles violates the Eighth Amendment; relies on “evolving standards of decency,” diminished culpability and greater capacity for change among juveniles, and international practice; treats such execution as disproportionate punishment.

Kennedy v. Louisiana

2008; facts: defendant sentenced to death for child rape where the victim did not die; holding: death penalty for non-homicide crimes against individuals violates the Eighth Amendment; emphasizes proportionality and evolving standards of decency and restricts capital punishment largely to intentional homicide (plus a few exceptional national-security or treason-type offenses).

Extended Republic vs Small Republic argument

Debate between Madison and the Anti-Federalists about the proper size of a republic; Madison (Federalist 10) argues an extended, large republic with many factions and representation is better able to control majority factions and protect rights, while Anti-Federalists like Brutus insist only small, homogeneous republics can maintain republican virtue, close representation, and liberty.

Constitutional basis of judicial review

Judicial review is grounded in Article III’s vesting of the “judicial Power” and the Supremacy Clause making the Constitution and federal laws supreme; when a statute conflicts with the Constitution, courts must follow the higher law; articulated in Marbury v. Madison as the judiciary’s duty “to say what the law is,” even though review is not explicitly enumerated.

Unitary Executive

Interpretation of Article II’s Vesting Clause (“the executive Power shall be vested in a President”) as concentrating all federal executive power in a single elected president; supports strong presidential control over the executive branch, including removal of subordinates, and is defended by Hamilton as necessary for energy, decisiveness, and accountability.

Strict construction of congressional powers

Jeffersonian federalism view that Congress may exercise only powers expressly enumerated in the Constitution plus those absolutely necessary to execute them; reads the Necessary and Proper Clause narrowly (necessary = indispensable, not merely convenient) and aims to protect reserved state powers and prevent consolidation of national authority.

Categorical vs empirical definitions of commerce

Categorical approach draws formal lines between “commerce” and activities like manufacturing, production, or mining (as in older cases like E.C. Knight), leaving non-commerce categories to state control; empirical approach focuses on the real-world economic effects of activities (as in Wickard and Lopez) and asks whether they substantially affect interstate commerce regardless of category labels.

Direct effects vs substantial effects doctrines

Older doctrine limited Congress’s reach to activities with a direct effect on interstate commerce, treating indirect effects as belonging to state police powers; the New Deal “substantial effects” doctrine allows regulation of even local or non-commercial activities when, considered alone or in the aggregate, they have a substantial economic effect on interstate commerce.

Aggregate effects doctrine

Doctrine from Wickard v. Filburn that even trivial individual conduct may be regulated under the Commerce Clause if, when aggregated across many similarly situated actors, it has a substantial effect on interstate commerce; justifies federal regulation of local, seemingly non-commercial behaviors that undermine broader economic regulatory schemes.

Hamilton’s critique of Bills of Rights

In Federalist 84, Hamilton argues a federal Bill of Rights is unnecessary and potentially dangerous because the Constitution already limits government by enumerating powers, listing rights might imply government has powers it was never given, and unlisted rights could be seen as unprotected; he prefers structural limits and specific textual protections already in the document.

Doctrine of incorporation

Post–Civil War doctrine using the Fourteenth Amendment’s Due Process (and sometimes Privileges or Immunities) Clause to apply most of the federal Bill of Rights protections to state and local governments; done selectively, case by case, so that today most but not all rights in the Bill of Rights are incorporated against the states.

Barron v. Baltimore (1833)

Early Supreme Court decision holding that the Bill of Rights restrains only the federal government, not the states; a property owner complained about a city project ruining his wharf and invoked the Fifth Amendment, but the Court rejected his claim because federal rights did not bind state or city actions until the Fourteenth Amendment and incorporation.

Selective vs total incorporation

Total incorporation (favored by Justice Hugo Black) would apply the entire Bill of Rights to the states wholesale via the Fourteenth Amendment; selective incorporation (the dominant view) applies only those rights deemed fundamental to ordered liberty on a right-by-right basis; in practice, the Court has selectively incorporated most but not all Bill of Rights guarantees.

Tension between Establishment and Free Exercise Clauses

First Amendment has both an Establishment Clause (preventing government from endorsing or supporting religion) and a Free Exercise Clause (protecting religious practice); tension arises when accommodating religion risks appearing like establishment, or when strict neutrality burdens religious exercise; Court must navigate this conflict in school prayer, funding, and religious exemption cases.

Theories of the Establishment Clause

Competing approaches include strict separationism (high “wall” between church and state), neutrality (government must neither favor nor disfavor religion), accommodationism (some recognition or aid to religion is allowed consistent with history and tradition), and endorsement/coercion tests focusing on whether government messages endorse religion or coerce participation in religion.

Lemon Test – financial aid and endorsement

From Lemon v. Kurtzman: law must (1) have a secular purpose, (2) have a primary effect that neither advances nor inhibits religion, and (3) avoid excessive entanglement between government and religion; applied especially in financial aid cases (is aid neutral and indirect?) and in endorsement disputes (whether government appears to endorse religion).

Sherbert Test

Free Exercise strict scrutiny framework from Sherbert v. Verner: a claimant must show a sincere religious belief and a substantial burden on that practice; if shown, government must prove a compelling interest and that it uses the least restrictive means; used mainly in unemployment and exemption cases before Smith and revived in RFRA-type statutes.

Doctrine of “Unconstitutional Constitutions”

Idea that even democratically adopted constitutional provisions (especially in state constitutions) may be invalid if they conflict with higher-ranking constitutional norms like the U.S. Constitution; for example, a state constitutional amendment that violates federal Free Exercise or Equal Protection can be struck down despite its popular origin.

Compelling interests (Free Exercise context)

Government interests so important that they can justify burdening fundamental rights under strict scrutiny, such as protecting life and safety, preventing serious harm, or maintaining essential governmental functions; in Free Exercise cases using the Sherbert/RFRA framework, only such compelling interests pursued by the least restrictive means can override religious objections.

Smith Test – neutrality and general applicability

From Employment Division v. Smith: if a law is neutral toward religion and generally applicable to comparable secular conduct, the Free Exercise Clause does not require religious exemptions, and the law need only meet rational basis; strict scrutiny is reserved for laws that target religion or are not truly neutral or generally applicable.

Second Amendment – collective vs individual right

Collective-right view ties the Second Amendment solely to state militias and denies a personal right to arms outside militia service; individual-right view, adopted by the Court in Heller and Bruen, reads “the right of the people to keep and bear Arms” as protecting an individual right to possess and carry firearms for self-defense, subject to historical and longstanding restrictions.

Two-step vs text-and-history test (gun regulation)

Two-step approach used by lower courts after Heller asked (1) whether regulation burdened Second Amendment conduct, then (2) applied interest-balancing scrutiny; Bruen rejects this and establishes a single text-and-history test: if conduct falls under the Second Amendment’s text, the state must justify the regulation by pointing to a well-established historical tradition of similar firearm regulation.

Trespass doctrine (Fourth Amendment)

Pre-Katz approach defining a search primarily as a physical intrusion on “persons, houses, papers, or effects”; under this view, as in Olmstead, there is no Fourth Amendment search without tangible entry or trespass on protected property, even if the government monitors conversations or behavior in other ways.

Katz Test and reasonable expectations of privacy

Post-Katz standard for defining a search: a search occurs when a person has an actual (subjective) expectation of privacy and society is prepared to recognize that expectation as reasonable; shifts Fourth Amendment focus from property and physical trespass to privacy of people, communications, and information.

Third-Party Doctrine

Fourth Amendment doctrine that individuals generally lack a reasonable expectation of privacy in information voluntarily shared with third parties (like banks, phone companies), so government can access such data without a warrant; Carpenter limits this doctrine for pervasive digital records like long-term cell-site location information.

Cruel and unusual punishments – disproportionate vs barbarous

Eighth Amendment prohibits both barbarous methods (e.g., torture, burning, dismemberment) and punishments that are grossly disproportionate to the offense or the offender’s culpability; modern death-penalty cases like Roper and Kennedy rely on proportionality analysis to declare some categories of execution unconstitutional.

Evolving standards of decency

Interpretive principle that Eighth Amendment meaning is informed by “evolving standards of decency that mark the progress of a maturing society”; Court looks at legislative trends, jury sentencing practices, and sometimes international norms to decide whether a punishment has become cruel and unusual.

Purposes of punishment – deterrence, retribution, rehabilitation

Core penal justifications: deterrence (preventing crime by making an example of punishment), retribution (proportionate moral payback for wrongdoing), and rehabilitation (reforming offenders to reintegrate them into society); Eighth Amendment cases consider whether a punishment meaningfully serves these purposes or is excessive and purposeless.

Article I Vesting Clause (Sec. 1)

Provides that “All legislative Powers herein granted shall be vested in a Congress of the United States”; locates federal lawmaking authority in a bicameral Congress and implies that only Congress may exercise the federal legislative power granted by the Constitution.

Article I Section 8 – Necessary and Proper, Spending/Taxing, Commerce

Lists Congress’s enumerated powers, including the power to lay and collect taxes and spend for the general welfare, to regulate commerce with foreign nations, among the several states, and with Indian tribes, and to make all laws “necessary and proper” for carrying into execution these powers and all other powers vested in the federal government.

Article II Vesting Clause (Sec. 1)

States that “The executive Power shall be vested in a President of the United States of America”; creates a single, unitary executive and is the textual basis for strong presidential authority over execution of the laws and control of the executive branch.

Article III Vesting Clause (Sec. 1)

Provides that “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish”; grounds judicial review and guarantees judicial independence through life tenure during good behavior and undiminished compensation.

First Amendment – key protections

States that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” and protects freedom of speech, of the press, of the people peaceably to assemble, and to petition the government for redress of grievances; core text for religion, expression, and association doctrines.

Second Amendment – text and function

Provides that “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed”; interpreted in Heller and Bruen to protect an individual right to possess and carry firearms for self-defense, subject to historical and longstanding limitations.

Fourth Amendment – searches and seizures

Protects against unreasonable searches and seizures and requires warrants based on probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized; foundation for modern search-and-seizure, privacy, and exclusionary rule doctrines (Katz, Carpenter, Mapp).

Eighth Amendment – punishment limits

Prohibits excessive bail, excessive fines, and cruel and unusual punishments; used to limit certain methods and applications of the death penalty and to evaluate whether punishments are barbarous or grossly disproportionate under evolving standards of decency.

Ninth Amendment

Provides that the enumeration of certain rights in the Constitution shall not be construed to deny or disparage others retained by the people; supports the idea that there are unenumerated rights beyond those explicitly listed in the Bill of Rights.

Tenth Amendment

States that 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; anchors the principle of federalism and limits on implied national powers by reserving residual authority to state governments and the people.