Constitutional Law
Memorize- doesn't care what you can memorize for midterm and final. Quizzes memorization more important
Understand-
Analyze/ explain-
The Enlightenment:
Define:
Intellectual movement that stressed reason and thought and the power of individuals to solve problems. Also known as the age of reason, the mid-1700s movement brought great change to many aspects of Western civilization.
Starts to challenge that all divine power starts with the monarchy
Come up with the idea that people are born with certain rights
Look outside of religion and to the natural world, science.
Government comes from the people
New beliefs about the world and who could have power
Hand in hand with the Scientific revolution
Life for everyone was really hard back then, modern comforts- life very centered around survival
Founding fathers were students of the Enlightenment
White male property owners: like people: risk they will make oppressive policies
Protected slave owners etc.
Affirmative freedom developed later (after civil war)
Either need Government to do something for you (developed later affirmative freedom), or need them to leave you alone (what founders focused on)
Needed from Gov
National security from outside threats
Law and order (domestically)- individual identities tied to states identity of being American took time to develop
Public Works- post office, bridges, etc.
Influential Thinking Toward the Enlightenment:
Thinkers:
John Locke
Jean- Jacques Rousseau
Montesquieu
Voltaire
Impact
Locke- born with natural rights. Enter into a social contract and a contract with each other to be governed. Willingly giving up some of those natural rights to be governed.
Colonists wanted a representative government. A say in how they were being taxed and how things would be regulated. These rights are attributed to Locke.
Rousseau- Government can only exist by the consent of the people. Voluntary departure from some rights
Montesquieu- Separation of powers/ checks and balances
Voltaire- Freedom of religion (gov isn't allowed to establish a religion)
*By the people for the people
Takeaways: Enlightenment was a shift in thinking, focused on the individual and individual rights, moving away from monarchy. The writers and thinkers of the enlightenment were highly influential on the founders, who used those ideas to create a government system.
The Articles of Confederation:
1st attempt at organizing the United States, not just 13 separate colonies
League of friendship: looser than “United States” lack of support for strong central government.
Three main obstacles
Abolishing institution of slavery
Fear of monarchy
Fear of mob rule- tyranny
Weaknesses:
Federal government had too little power and as a league of friendship it did not unify the states.
Ultimately couldn’t meet the baseline plans the founders intended
*for test understand why these are weaknesses
Need 9/13 states to pass laws
No real executive branch
No power, no one in charge
Difficult to get things done
Inefficient/ high bar
Couldn’t regulate commerce
Hard to do business across states
Couldn’t tax
No money
Couldn’t spend
National Security problem
No money for the military- weapons, supplies, people
No money for infrastructure, etc.
Relied on states to voluntarily contribute to national military, couldn't provide protection founders intended
Unanimous vote to amend
Very little all 13 colonies could agree on at the time
No national judicial system
Every state had their own court system
Courts would favor their state citizens
Hard to get a fair trial for the out of state defendant
NY P v. NJ D
P wants NY state court, if enough money involved, (75k) D has right to say no and go to federal court
Prejudice towards people from other states
Looking for Federal government to provide
National Security
Law and Order
Public Infrastructure
The Federalist Papers- John Jay, James Madison, Alexander Hamilton
10.
51.
70.
78.
Why?
Trying to convince delegates that the states had too many rights and the federal government too little power
Fear of monarchy, mob rule, too much democracy
Slavery
Geographic considerations
Federalist No. 10
*proposed solution to problems of tyranny
Compound Republic:
Representative democracy, less democratic, more representatives
System designed to be less democratic, put the decision making power in the hand of qualified, trustworthy citizens
Purposefully inefficient way to run a government. More steps
Wanted to have a lot of checkpoints on different places where tyranny could be stopped, whether by monarchy, majority, or minority
Madison’s Plan:
Executive, legislative, judicial
Factions
Fed
State
Local
Tyranny of the majority (now political parties)
Groups of people with different shared ideas
“a mortal disease”
Problem:
Solution:
#51: Alexander Hamilton or James Madison
Problem: fear of mob rule
Solution: spread out government, separation of power
Doubles down on the horizontal division of power
Federal level
State level
Local Level
Subdivided the divisions and ended up with bicameral legislature
Keep one branch of government from becoming too powerful
#70: Alexander Hamilton
Presidency and the judiciary
Energetic strong, unitary executive
Ability to enforce laws and act in times of crisis
Presidency different from a monarchy because of elections and
#78: Alexander Hamilton
Judiciary- not too worried about it
Just there to tell us what the constitution means and to resolve conflicts
Founding fathers underestimated the importance of the judiciary branch
District courts
Circuit courts
Supreme court
1/28:
Federal- laws apply everywhere
State- laws apply boundaries of a state
Local- laws apply in local zones
Leg- make laws
Fed Congress: Senate and the house of representatives
State State legislatures
Local Bi-cameral (often)
County legislatures
Town/city councils
Boards
Commissions
Exec- enforce laws
Fed President
State Governors
Local Mayors
Managers
Admins
Judicial- interpret laws
Fed Federal Court
State State Court Systems
Local Local Court systems
Supremacy clause- when federal government is using their enumerated powers, it is the supreme law of land
Preemption- what happens when there is a conflict between state and federal law. If the federal law is constitutional, it will win and the state law is invalidated (non-enforceable).
Roe- Fundamental right (limited) supreme law of land, state laws preempted.
Dobbs- overturn abortion, not FMR
Something is only preempted if it conflicts with a federal law
Commerce clause- grants congress broad power to regulate interstate commerce and restricts states from impairing interstate commerce.
Necessary and Proper clause- Right to do all things necessary and proper, what makes the constitution flexible.
10th amendment- All rights not expressly laid out in the constitution reserved for the states.
Federal State
Commerce - General welfare
treaties/ international decision - Licensing
Coin money - Local police power
Resolve state conflicts - Emergency service
Both Neither
Tax - Bill of attainder (guilty no trial)
Borrow money - Ex post facto laws
Build stuff - Titles of nobility
Possession of drugs cannot be a federal crime, but sale and transportation across state lines (commerce) therefore necessary and proper to enforce that law with local police
Immigration
Pandemic response
Minimum Wage
Healthcare
Healthcare:
Affordable Care Act (obama care)- basement provided by the federal gov but states can give more. Medicaid is a federal program that states can add to
Expanded medicaid (changed levels of eligibility),
Medicare (elderly) and medicaid (means tested) are joint federal state programs
Means tested: below a certain point of the poverty law
Health care interpreted to be constitutional act of the federal government but not necessarily an enumerated power
Immigration:
Federal law
Sanctuary city: immigrants who aren't federally eligible can receive benefits like Medicare. If an undocumented immigrant is arrested, the sanctuary city does not immediately report them to the dept. of homeland security.
Shelter city: NY
ICE: Federal government cannot deputize states, states have to join by choice.
Pandemic:
Federal government: stimulus checks
State and local governments: mask mandates, vaccines, school closure, money. Covid specifically covid was 70, 30 states to federal due to regulations. (state of emergency is different)
Minimum Wage:
Federal and States:
Federal $7.25,
New York state: $15.00- can always give more rights but can never take away (federal acts as a basement)
NYC (Local)- $16.50 - also subject to state basement, minimum would be $15 in NY
*Federal government sets the baseline for protection, states can always give more, but never less.
Non- Stop:
What were they trying to accomplish?
Discourse between Burr and Hamilton?
How does this help understand the context of publishing the federalist papers?
Alexander Hamilton:
Huge Impact on the federalist papers
51/85 Essays
1/28:
Finish the federalist papers
Start structure: federalism
Topic: Constitution
Context: enlightenment
History: articles of confederation, federalist papers
Begin of class we are here
Structure: federalism
Specificis: articles & interpretation
For friday: watching a documentary that goes through examples of state and federal government
1/31
Finish federalism GN through documentary
Watch federalism documentary
Tuesday:
Quiz #1
Finish federalism guided notes
Friday:
AI, Sections 1-7
Start AI section 8 (commerce clause)
Quiz scope:
From syllabus- today’s materials
Fed checks and balances
Exec - leg: veto a bill
Exec - jud: appoint justices
Leg- exec: impeachment, override vetoes
Leg- jud: impeach justices, confirm justices
Jud - exec: name laws unconstitutional
Jud- leg: name laws unconstitutional
PBS Documentary
Guided Questions:
What are the substantive topics discussed that span multiple levels of government?
Marijuana: Legal In CA but still a federal crime. This presents tension between state and federal powers, particularly with examples from Emerald Triangle and “Harborside”
Gun Laws: The commerce clause
How does this episode demonstrate the tensions inherent in federalism?
Marijuana legalization, gun rights, and environmental regulations. Some states push for autonomy while the federal government asserts its authority, often citing the Supremacy clause and Commerce Clause to justify intervention.
Argument against Gary: stream of commerce
Examples of how the federal government solved/solves local problems.
Hoover Dam: Government stepped in to fund and build the dam when Nevada residents could not afford to do so. Federal government can address regional infrastructure challenges
New Deal: Gov pumped money into public works projects to help with unemployment and to relieve stress of the great depression
Brown v. Board: Civil rights. Initially Eisenhower allowed states to handle segregation, but when Arkansas refused to integrate schools he sent federal troops to enforce desegregation in Little Rock
In what ways does crisis impact federalism and the relationship governments?
The Great Depression led to FDR’s New Deal where the federal government took a stronger role in managing the economy and providing social programs, shifting the balance of power
The Civil Rights Movement forced the federal government to intervene against states resisting desegregation
Environmental issues: one states policies can negatively affect others, justifying federal intervention (KY coal burning)
Reflect on federal programs administered by the states.
Social Security, Medicaid, and educational funding originate from the federal government but are run by the states. This means policies and benefits vary depending on the state, sometimes creating inequalities
What examples from this episode show issues at local or urban level?
Local businesses like Harborside Dispensary operate legally under state law but face threats from the federal government
Residents argue that firearms made, sold, and used within the state should be exempt from federal regulation, challenging the commerce clause
Nevada has its own unique laws on gambling and prostitution, demonstrating how states can shape policy to fit local culture and economy
Difference between federal help and federal interference?
Federal help: projects like the Hoover Dam and New Deal Programs provided resources that states couldn’t afford on their own
Federal interference: Some see regulations- like low-flow toilets or federal marijuana laws overriding states legalization as unnecessary restrictions on state freedom. Civil Rights.
What is the impact of Wickard v. Filburn on federalism?
The 1942 Supreme court case expanded the commerce clause, allowing the federal government to regulate even small, personal economic activities if they affect the broader market
Farmer growing wheat for personal use was fined because, by not buying wheat, he affected interstate commerce
This ruling set a precedent for broad federal regulation, later influencing laws like the Affordable Care Act (Obamacare) - Individual mandate which required people to buy health insurance. If people didn't buy, it would increase the cost for others, affecting the overall healthcare market
General Documentary Notes:
Marijuana (Emerald Triangle) CA
Legal in CA, federal crime
“Harborside”
Terrified workers
State Power v. Federal
CA: respected citizen, top tax payer
Federal: criminal deserving of the death penalty
Constitution turning point in history
Proposes indivisible union
Uge cultural differences
Barely won revolution, would lose next war unless join as a nation
Articles of confederation
Couldn't do much of anything
Constitutional Convention
Hamilton- call continental congress
Deliberation: Madison came up with plan to scrap articles and create supreme national government
2 senators/ representatives by population
Elected president
Federal judiciary w SCOTUS
Necessary and proper, supremacy clause
Limited federal government through enumeration
*75 years later constitution nearly collapsed
Impossible to solve tension between north and south
Lincoln said secession was illegal/ unconstitutional
Abolished slavery- fed gov proved supreme
Guns
Montana family owns 27 guns Montanna Buckaroo
Gary: if a gun is bought and sold in Montana and only used in Montana, federal government cannot regulate
*federalism gives states lots of freedom to do their own thing
Nevada
Vegas legalized vice
Hoover Dam: metaphor for federal gov improving lives
People living in nevada couldn’t finance or power construction of Hoover Dam
Great Depression:
¼ + of the workforce jobless
FDR: New Deal pumped $ into economy
Public Works projects
9/4/57- Eisenhower lets states deal with segregation
Brown v Board
- 9/24: provide security for black students on way to class
Federal help v. Interference:
Need 1.6 gallon flush- people w/o screwed
Just one example of many regulations that are tough to deal with
Broad interpretation of the commerce clause
Wickard v. Filburn
Too much wheat, $160 fine
Argued not commerce issue (1942) because by growing his own wheat he wasn't purchasing
Still a commerce issue because it reduced the amount of wheat he would purchase, if everyone did this the market would fail
Affordable Care Act
Fed Giv constraining personal liberty?
Federalism: national parks, efficiency standards (gains for whole society), solve pollution and
Competing interests for liberty
Burning coal in KY affects other states
2/4
Quiz 1
Finish federalism guided notes
Fri- Articles 1-7, Articles 1-8- Commerce clause (start)
Court System
Federal:
District Court (Trial ct level):
Circuit Court:
NYS:
NY Supreme Court (Trial ct level):
Appellate Division:
Court of Appeals:
Simplified federal court system:
US Supreme Court - Original jurisdiction over some cases, mostly discretionary (certiorari/ rule of 4) can affirm, reverse, or remand back to district court
Circuit Courts - Intermediate Court of Appeals: affirm, reversed, remand (review law) discretionary and mandated.
District Courts - Administrative Courts: immigration, tax, bankruptcy, workers compensation (only court that can do fact finding)
Cases that involve federal question
Cases that involve diversity jurisdiction (civil, two private parties sue each other. Two different states, amount of compensation > $75,000)
94 District Courts (trial courts), 13 Courts of Appeals (immediate appellate courts), US Supreme Court
New York State court system:
Court of Appeals (discretionary)
Appellate Division (appeal outcome, has to hear some but not all)
New York Supreme Court (trial court, fact finding) (family, criminal, etc)
State Court System has final say in how they define NY State constitution:
Speedy trial, defined differently in State v Federal (right to be arraigned in 24 hours in state)
Judicial Philosophy: lens
Originalism: founders intent- consider what words meant at the time they were written,
Can’t account for modern problems that didn’t exist at the time
Living constitutionalism: modern times
Starts with the text, but looks at the interpretation through what words and context means today- in light of tech advancements and changes
Who is going to see this the same way? Many interpretations
Textualism: words on paper - not considering outside factors or intentions
Problem:
“Vehicle” does that just mean cars or does it include other modes of transportation, SCOTUS considers mobile homes to be automobiles- is that apparent by just looking at the words on paper
Activism: exceeding their power to get the outcome they want
Legislating from the bench
Implying bad actions
Not going through lenses process but through own morals to advance a political agenda
Happens to some degree with every judge
*Abandon ideas of neutrality in justice system
Restraint: sticking to the letter of the wall
“Arms”
Intent: Intend the outcome
Purpose: Act with purpose
Current Makeup of the SCOTUS:
Chief Justice John Roberts
Thomas
Alito
Kavanaugh
Gorsuch
Barrett
Kagan
Jackson
Sotomayor
Appointed by the president, confirmed by the senate
*Political Climate
Used to have moderate or swing vote
Kennedy- appointed by Republicans and often sided with more conservative justices, but did not always. Joined the progressive majority to approve same-sex marriage
2/7- absent
Fri- Articles 1-7, Articles 1-8- Commerce clause (start)
2/11/25
Today: commerce clause
Friday: Taxing and Spending, necessary and proper
Article 1, Section 8- some enumerated powers of congress
Provide for general welfare
Declare war
Post office
Interstate commerce *
Taxes & spending
Coin $
Borrow $
Necessary and Proper
Regulate Commerce
Among the several state
Foreign nation
Native americans
Commerce?
Among the states?
Commerce acts
Controversy
SCOTUS decides
Defining controversy
United Government: Parties are the majority in all branches- split in congress makes it harder to have
Divided Government: Impact president's ability to move an agenda forward
ERA 1:
Gibbons:
Licensing ferryboats in NJ and NY
Conflict between states
In order to determine whether the commerce clause is involved:
Define commerce
Define among the several states
Impact of the 10th amendment
Answers
Broadest definition of commerce- anything you could think of
Concerning
Expansive power to federal government, 10th amendment does not act as a cap
ERA 2:
Dicta:
*same questions, different answers (varies bc of different justices)
Early New Deal policies
Narrowing
Exchange of goods (sale)
2 or more states, crossing state lines
10 can be a cap even if acting pursuant to the commerce clause
Overturn
Change the test (same three questions, just changing the definition of what they mean)
FDR wants to expand the court
Economic policies
But also deals with moral issues (vices eg. gambling)
Activism v restraint
ERA 3:
Wickard v Filburn:
*Broadening definition
Primary sale, user sale, transport
Concerning:
No
Aggregation: even if an individual action is seemingly outside of the scope of the commerce clause, if you add it to everyone doing the same thing and it could have an impact on interstate commerce, then it can be regulated
ERA 4:
Lopez
guns in school zones
Raich
Reaffirm wickard (marijuana)
Morrison
VAWA- violence against women act, federal cause of action
No, federal government can't
*court is not broadening the scope,
Commerce Clause & Civil Rights
Segregation has negative impact on commerce
Court uses power to end segregation
Example of something you might not see as commerce
Article 1 Sec 8 → some enumerated powers of Congress
Declare war
Post office
Interstate commerce
Taxing and spending
Coin and borrow money
N + P clause
Providing for the general welfare
Regulate commerce
Among the several states
Foreign nations
Native americans
But how do we define commerce?
It is defined when
Congress acts
a case or controversy arises
SCOTUS defines from a case or controversy
Era #1: Gibbons v. Ogden (1824) - Regarding licensing of a ferry company from New York to New Jersey.
Defined:
Commerce → everything
Among the several states → “concerning” two or more states
Impact of the tenth amendment → No, the 10th amendment does not act as a cap if enumerated power
Era #2: The New Deal
Increase in the size of the federal government, specifically to the administrative state and agency
Defined:
Commerce → exchange/sale of goods
Among the several states → two or more states, crossing state boundaries
10th amendment can be a cap even if acting pursuant to the Commerce clause
Two ways to change the law
Overturn
Change the test
Era #3: Wickard v. Filburn (1942)
Not participating in a market can actually impact the market
Principle of aggregation- even if an individual action of itself is outside the scope of the commerce, if you add it to the aggregate and it can impact the market, then it can fall under the commerce clause
Defined:
Commerce → Even individual actions can if a negative impact on interstate commerce if it is taken in the aggregate
Among the several states → concerning
10th amendment is not a cap
Era #4:
Lopez (slight narrowing), Raich (reaffirm Wickard), Morrison (narrowing)
In between the era 3 and 4, there was an intertwinement of the Commerce Clause and Civil Rights. Congress tries to ban segregation on interstate highways and areas. SCOTUS upheld these laws
Dicta: what is in the majority opinion that is not central to the opinion
2/14
Commerce Clause: regulate commerce among the several states, foreign nations, and native tribes
Economic
Streams
Instrumentalities: things used for interstate commerce
Substantial effects (established in Wickard)
On its own
In the aggregate
Or Non -economic?
Generally, non economic activity cant be regulated under the commerce clause
The only way is it can fall into congress’s power only if it is a larger regulatory scheme (no current examples)
Precedent:
Analogous
Distinct
How to brief a case:
Facts
Ph
Issue
Holding
Judgement
Reasoning
Taxing and Spending
Relation between federal and state government
South Dakota v. Dole: Conditioned the receipt of 5% of federal highway funding to a state on them raising the drinking age 21. The court ruled that the fed govt can condition money up until a point where it becomes coercive
National Federation of Independent Businesses v. Sebelius (2012)
Determined that required states to adopt the new Medicaid program or lose all funding was coercive
2/25
Necessary & Proper clause
Technically enumerated but the definition of it left to the SC
Mcculloch v Maryland
Federal bank? (levy taxes, coin money) (implied)
If yes could a state tax it? - supremacy
Necessary = appropriate & legitimate; furthering an objective on an enumerated power
Section 9 (congress)
Cap on the federal government's ability to end slavery
Habeas Corpus: cannot arrest people without a right to trial (exception: rebellion or public safety)
Suspended during WWII, Japanese internment camps.
Bills of attainder: Congress can’t overstep into the legislative branch; imposes a punishment on someone without a judicial trial. Prevents the passing of laws that kick a political opponent out of office
Ex post facto laws: about notice. Laws go into effect at the time they are signed into law and are looked at that way going forward. Can’t break laws that there is no notice of it; cant be punished for a law retroactively
Constructive notice
If they change a law
Titles of nobility: Emphasises how afraid the founders were of tyranny
Emolument
Section 10- States
Bills of attainder
Ex post facto laws
Titles of nobility