Constitutional Law Homepage

Welcome to the Homepage of Constitutional Law (Governmental Powers). This website contains information regarding the class. Click on the links below to take you to the document.

***I urge you to make your personal health a top priority!***
  • UL Counseling and Testing Center 482-6480, 2nd Floor of Olivier Hall
  • Suggested list of self-help books

    • SYLLABUS

  • Syllabus

    • EXAMS

  • I strongly urge you to form study groups for exams.
  • Permanent-ink pen and bluebooks are required for exams.
  • Study Guide for all exams
    • ***Note: This is the material for the entire course. Be sure to note in class specifically which of this material is covered on each individual exam!!!
  • Sample Multiple Choice questions So that you can get a feel for what the multiple choice questions on the exam will be like.

    ASSIGNMENTS (Don't forget due dates!!!)
  • Constitutional Law Term Paper
    Class Notes
    These are outlines of the notes I refer to during our class discussions. ***These are NOT a replacement for doing the course readings and/or taking notes in class, as these notes will NOT entirely overlap with either the course readings or our in-class discussions!!! Instead, these are here simply as an *ADDITIONAL* source of information to help you learn the course material. In class, I will also provide other related information, expand on points in the notes, provide additional examples, draw diagrams on the blackboard, and answer student questions. Thus, DO NOT RELY ONLY ON THIS OUTLINE, but attend class regularly, listen carefully, take excellent detailed notes, ask frequent questions, and keep up with all the readings, in order to maximize your learning and performance in the course.
    Class Notes Part I
    Class Notes Part II
    Class Notes Part III

    Course Readings

    Background info for reading the course material:

  • How to Read Court Cases Handout on understanding the basic elements of court cases.

    ***For every case, in addition to specific questions regarding each case, be sure to understand:

    1. The legal issue: What precisely was the legal question the Court was being asked to decide?
    2. The Court's holding: What was the court's answer to the question?
    3. The Court's reasoning: What were the reasons the Court gave for its decision?

    The Purpose of Higher Education

  • Virginia Bill on the Diffusion of Knowledge by Thomas Jefferson. What is the purpose of public "liberal" education? (How well is your own public "liberal" education meeting these goals?)
  • Rockfish Gap Report by Thomas Jefferson, James Madison, and the other founding Commissioners of the University of Virginia. What is the purpose of higher education? (How well is your own higher education meeting these goals?)

    FOUNDATIONS OF AMERICAN GOVERNMENT

    Sovereignty and The Social Contract

  • John Locke, Second Treatise on Government What is the State of Nature? What rights (if any) do people inherently possess, even in a state of nature? What is the Civil Society, and why is it formed? What purpose does the government serve in a Civil Society? Where does that government get its authority to rule? What are the limits of that authority? What may the people rightfully do if the government exceeds those limits?
  • The Declaration of Independence How does this incorporate and apply social contract theory in support of the right of the American colonies to declare independence from Britain?
  • The U.S. Constitution How does the Constitution indicate that it is a social contract? (Hint: Look at the Preamble)
  • Chisholm v. Georgia What is "soveriegnty"? In the United States, who or what has sovereignty, and why?
  • Johnson and Graham's Lessee v. M'IntoshWhat gives the U.S. sovereignty over the Native Peoples living within U.S. territory?

    Constitutional Democracy

  • Montesquieu, On the Spirit of Laws What is the danger in having government, and how is this danger minimized by a system of "separation of powers"? What are the three branches of government and what are their functions? What sort of "checks and balances" should the branches of government have against each other, and what purpose do these checks and balances serve?
  • Federalist 51 How does the system of separation of powers relate to the system of checks and balances? What is their purpose? How do the different levels of government (state and federal) serve the same purpose? How do the different interests of citizens (ala factions) also serve the same purpose?

    JUDICIAL BRANCH

    Overview and Background

  • The Judiciary What is the basic organizational structure of the federal court system? Over what types of cases does the federal judicial power extend? How are federal judges appointed and what is their term of office? What is the power of judicial review?
  • Publius, Federalist 78 Why will the Supreme Court not have a dangerous amount of power? Why should Supreme Court justices have life terms? Will the Supreme Court have the power of judicial review? How does the power of judicial review relate to social contract theory?
  • Publius, Federalist 81 Why won't the Supreme Court abuse it's power of judicial review over the legislature?
  • Brutus Nos. 15 and 16 Why will the Supreme Court be dangerous? Why won't the threat of impeachment prevent the Supreme Court from abusing its power of judicial review?

    Judicial Review, Jurisdiction, and Justiciability

  • Marbury v. Madison Under what circumstances does the U.S. Supreme Court have original jurisdiction as opposed to appellate jurisdiction? Why may not Congress change that? Why is the Consitution supreme over Congress? Why does the Supreme Court get the final say regarding what the Constitution means?
  • Martin v. Hunter's Lessee What jurisdiction does the Supreme Court have over the state courts, and why?
  • Ex parte McCardle What power does the Constitution give to Congress to control the appellate jurisdiction of the Supreme Court? Are there any limits to this power?
  • Flast v. Cohen What is "standing"? What are the requirements for "taxpayer standing"?
  • Lujan v. Defenders of Wildlife What are the specific requirements for a party to have "standing" to bring a lawsuit in federal court? What are the limits on Congressional attempts to create standing by statute?

    EXECUTIVE BRANCH

    Overview and Background

  • U.S. Constitution Carefully read Article II.
  • The Executive Branch How is the President chosen? What are the primary powers of the President?
  • Madison's notes of the Federal Convention What are the alternatives for how many persons should constitute the executive, and what are the arguments for each alternative?
  • Publius, Federalist 70 What are the qualities the executive should possess, and why are these qualities desirable--that is, what specific benefits are derived by creating an executive with these qualities?
  • An Old Whig, No. 5 What are An Old Whig's fears regarding the Presidency?
  • Cato What are the dangers in the new executive--that is, what specific Constitutional powers might allow the President to abuse power? What about the claim that "America is different, it won't happen here."?

    Executive Prerogative

  • Locke on Executive Prerogative What is the executive power? What is executive prerogative? What are the precise limits on executive prerogative?
  • Blackstone on Executive Prerogative What is executive prerogative? What are the precise limits on executive prerogative?
  • Hamilton, Federalist 69 How does Hamilton counter anti-federalist arguments that the Presidency is like a monarchy? What does Hamilton say about executive prerogative?
  • Presidents' views of Presidential Power How do Wasington and Taft differ from Lincoln and Roosevelt on the proper power of the President?
  • Youngstown Sheet and Tube Co. v. Sawyer What did the President try to do, and why? What legal authority did the President assert to do this? What does the Court say about those arguments? What rule of guidance does Justice Jackson offer? Why should the President not be given such authority?

    Foreign Affairs

  • Blackstone on Executive Foreign Policy What are the foreign policy powers of the King? What limits are there?
  • Federalist 75 What does Hamilton say are the foreign policy powers of the President?
  • Pacificus What does Hamilton now say are the foreign policy powers of the President?
  • Helvidius What does Madison say are the foreign policy powers of the President?
  • Story on Executive Foreign Policy What are the foreign policy powers of the President?
  • U.S. v. Curtiss-Wright Export Corp. What are the attributes of external soveriengty, and what gives these attributes to the U.S.? What discretion does the U.S. President have in exercising the external sovereignty of the U.S., and why?

    War Powers: Commander-in-Chief

  • Federalist 74
  • The Prize Cases When may the President use military force without a Congressional declaration of war? When is a "rebellion" or "insurrection" also a "war"?
  • War Powers Act The text of the War Powers Act--Pay closest attention to Section 5(b).
  • Authorization for the Use of Military Force What are the limits (if any) of the authority given to the President by the AUMF?

    War Powers over Enemy Combatants

  • Ex parte MilliganWhy did Milligan's trial by military tribunal violate the Constitution? Under what circumstances can martial law be legally imposed? Why can't the President (or some military official) simply impose martial law whenever they feel it is necessary?
  • Korematsu v. U.S. (1943) Who brought the lawsuit and why? What justification did the military (i.e. the executive branch) offer for putting Japanese-Americans in "relocation centers"? Why didn't this violate the Equal Protection Clause of the 14th Amendment? Why not make the executive demonstrate individualized suspicion or guilt? Why do you think this same procedure not used against German-Americans and Italian-Americans?
  • Civil Liberties Act of 1988 In light of the Congressional and Presidential apology over the facts involved in the Korematsu case, is Korematsu still valid legal precedent? What if there were "acts of espionage and sabotage documented" and/or "adequate security reasons"? Would Congress and the President then believe detentions are not "fundamental violations of the basic civil liberties and constitutional rights" of the people involved?
  • Ex parte QuirinWhat is an "unlawful belligerent" or "unlawful enemy combatant"? What is the "law of war"? Why does the Constitution allow military tribunals for unlawful belligerents? Why does the Milligan case not apply? May the President create such military tribunals without Congressional authorization?
  • Hamdi v. Rumsfeld How does the court distinguish this case from Milligan? Is perpetual detention legal? Why not give the President total discretion to declare someone an "enemy combatant"? Why not give alleged "enemy combatants" all the rights of criminal defendants? What legal process, specifically, is then due to a citizen who challenges their status as an alleged "enemy combatant"? What do the dissenters and concurrers say? Finally, May the President detain citizens as "enemy combatants" without Congressional authorization to do so?

    Power to Pardon

  • Murphy v. FordWhy does the President have the power to pardon? What limits are there on that power?

    Executive Privileges, Immunities, and Impeachment

  • U.S. v. Nixon Why does the President have a privilege of confidentiality? Why is the privilege qualified and not absolute? What are the standards court should use to determine whether presidential material meets the qualified privilege? Was that standard met in this case?
  • Cheney v. U.S. District Court Why may the Vice-President assert executive privilege in this case? How does the Court distinguish this case from U.S. v. Nixon?
  • Nixon v. Fitzgerald Under what circumstances is the President immune from civil lawsuits, and why? Does that immunity apply in this case, and why? If the president has immunity from lawsuit, what checks are there on abuse of executive power?
  • Clinton v. Jones Under what circumstances is the President immune from civil lawsuits? Why is the President not immune during his term in office? What about the fear of harassing litigation?
  • The Impeachment of President Andrew Johnson
  • Proposed Articles of Impeachment for President Nixon What were the grounds for impeachment?
  • Articles of Impeachment for President Clinton What were the grounds for impeachment>
  • President Clinton's Response to the Articles of Impeachment What were Clinton's defenses? The Senate acquitted Clinton without offering any explanation. Thus, which defense(s) did they believe were valid?

    LEGISLATIVE BRANCH

    Overview and Background

  • CongressWhat powers does Congress have as a whole? How do the powers of the House and Senate differ?

    Various Legislative Powers

  • McCulloch v. Maryland Read only the parts involving the "Legislatives Powers Issue." Who enacted the Constitution? Is a national bank one of Congress's enumerated powers? What does the word "necessary" in the Necessary and Proper Clause mean? Why does it have that meaning? Why does it allow Congress to create a national bank?
  • McGrain v. DaughertyIs the power to investigate one of Congress's express powers? What do historical examples and state court cases say about the legislative power to investigate? Why is the power to investigate inherent to any legislature? Why is Congress's investigation of Daugherty a proper investigation?
  • Gibson v. Florida Legislative Investigation Committee What are the general limits on a legislature's investigative powers when an individual's constitutional rights are involved? How does the Court distinguish this NAACP case from past cases involving Communist organizations? Applying the general principle, why may Florida not require release of the NAACP membership list?
  • Mistretta v. U.S. What is the "nondelegation doctrine"? What is the "intelligible principle" test? How does Congress's delegation to the Sentencing Commission meet that test? How strict must the separation of powers in the U.S. government be? Why does not the location, composition, or presidential control of the Sentencing Commission violate the seperation of powers?
  • South Carolina v. Katzenbach What general power does Congress have to enforce the 15th Amendment?
  • City of Beorne v. Flores What general power does Congress have to enforce the Free Exercise Clause of the First Amendment?
  • Missouri v. Holland What general power does the Senate have to ratify treaties? What limits does the Constitution put on treaties?
  • U.S. v. Sanchez What is the precise extent of Congress's power to tax, and why?

    Commerce Clause

  • Gibbons v. Ogden What is the precise extent of Congress's power under the Commerce Clause, and why? What is the validity of state laws that contradict federal law?
  • President Roosevelt, Commonwealth Club Speech How did circumstances change between 1787 and 1932? What should be the "new terms of the old social contract" of the United States?
  • N.L.R.B. v. Jones and Laughlin Steel Corp. What is the precise extent of Congress's power under the Commerce Clause, and why?
  • Wickard v. Filburn What is the precise extent of Congress's power under the Commerce Clause, and why?
  • Champion v. Ames What is the precise extent of Congress's power under the Commerce Clause, and why?
  • Heart of Atlanta Motel v. U.S. What is the precise extent of Congress's power under the Commerce Clause, and why?
  • U.S. v. Lopez What is the precise extent of Congress's power under the Commerce Clause, and why? What is the alternative?
  • U.S. v. Morrison What is the precise extent of Congress's power under the Commerce Clause, and why? What is the alternative?

    Dormant Commerce Clause

  • Cooley v. Board of Wardens What precise limitation does the Commerce Clause impose on state regulation of commerce?
  • Maine v. Taylor What precise limitation does the Commerce Clause impose on state regulation of commerce?

    Federalism and the 10th Amendment

  • Brutus Under the new Constitution, how specifically are the states threatened by the federal government? Why does Brutus predict the Supreme Court will expand the power of the federal government?
  • Publius According to Madison, How important might sacrificing state sovereignty be under the new Constitution? Regardless, if the states don't want to sacrifice their sovereignty, what are the numerous practical advantages the state governments will have over the federal government that will prevent the federal government from becoming too powerful?
  • American Federalism--Past, Present, and Future What was the general effect of the Civil War on American federalism? What general effect did the Great Depression have on American federalism? What is dual federalism? What is cooperative federalism? During what time periods did these occur? What is a grant-in-aid and how has this affected relations between the federal and state governments? What are some of the current issues facing American federalism? Given these modern developments in federalism, how accurate were the Federalists and Anti-federalists in their predictions about federalism in America?
  • McCulloch v. Maryland Read only the parts involving the "Federalism Issue." Who enacted the Constitution? Does the Constitution expressly prohibit states from taxing the national government? What rule applies when considering whether state legislation violates the U.S. Constitution? Why is this rule important to apply? How does it apply to the question of state taxation of a national bank?
  • San Antonio Metropolitan District v. Garcia What precise limitation does the 10th Amendment impose on Congressional regulation of commerce by state governments?
  • South Dakota v. Dole What precise limitation does the 10th Amendment impose on conditional fedederal grants to the states?
  • New York v. United States What precise limitation does the 10th Amendment impose on conditional fedederal grants to the states?

    Substantive Due Process

  • Lochner v. New York What precise limitation does Due Process Clause impose on the regulation of commerce?
  • West Coast Hotel Company v. Parrish What precise limitation does the Due Process Clause impose on the regulation of commerce?
  • Ferguson v. Skrupa What precise limitation does the Due Process Clause impose on the regulation of commerce?

    Course-Relevant Websites

  • Findlaw Searchable database of full-text U.S. Supreme Court opinions.
  • Legal Information Institute (LII)Selected Supreme Court opinions on-line.
  • Findlaw's Guide to Article I of the Constitution Constitutional analysis of Congress's powers.
  • Findlaw's Guide to Article II of the Constitution Constitutional analysis of the President's powers.
  • Findlaw's Guide to Article III of the Constitution Constitutional analysis of the Supreme Court's powers.
  • Findlaw's Guide to the 10th Amendment of the Constitution Constitutional analysis of federalism.