This website uses cookies to ensure you get the best experience on our website. Learn more

Law Outlines Constitutional Law Outlines

Constitutional Law Outline

Updated Constitutional Law Notes

Constitutional Law Outlines

Constitutional Law

Approximately 57 pages

This outline covers a first year course in constitutional law taught by Prof. Schauer at UVA Law. Included is an attack outline as well as a longer and more detailed major outline. Topics include judicial review, the Commerce Clause, the Necessary and Proper Clause, the 10th Amendment, the Dormant Commerce Clause and preemption, Taxing and Spending powers, Substantive Due Process (Lochner and beyond), Equal Protection, Due Process and sexual orientation, State Action, and Presidential Powers (vs....

The following is a more accessible plain text extract of the PDF sample above, taken from our Constitutional Law Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Constitutional Law

Major Outline

Spring 2015 – UVA Law

  • Judicial Review/Supremacy

    • Marbury v. Madison (p.1, 1803) - Initiated Judicial Review

      • Facts: Judicial commission letter from Adams was not delivered until after Jefferson took office. Jefferson tried to withdraw the commission. SCOTUS granted mandamus compelling delivery and Madison (Jefferson’s SOS) ignored it.

      • Rule 1: Judicial supremacy. SCOTUS’s rulings are binding on the other branches of government.

      • Rule 2: Judiciary Act impermissibly expanded SCOTUS’s jurisdiction beyond the constitution (constitution is supreme, thus JA portion was struck down)

    • Legislative Supremacy: alternative viewpoint that legislature decides issues of constitutional law

      • If they pass something unconstitutional then the people will correct the process in their voting behaviors

      • Based in part on the idea that Congress also takes an oath to uphold the Constitution

      • See countermajoritarian difficulty

    • Martin v. Hunter’s Lessee (p. 24, 1816)

      • Issue: To what extent may SCOTUS review decisions of the states--both courts and legislatures?

        • Dual Federalism vs. Federalism

      • Argument for no judicial review of state laws:

        • States Rights: this would run against state sovereignty

        • Constitution only applies to federal government

          • Incorrect, places several restrictions on state

        • Departmentalism: states retain power to interpret Constitution for themselves

        • Slippery slope argument - too much power

          • See McCullugh v. MD: power to tax is power to destroy

          • But see Sorites Paradox: Heap of rice minus one grain is still a heap; even when you can’t draw a line it doesn’t mean things are necessarily going to spiral out of control.

      • Argument for judicial review of state laws:

        • Different interpretations of the constitution by separate states would interfere with the idea of a single federal constitution

          • See economic results of different rules

        • Pointed to the supremacy clause regarding supremacy of the constitution itself - ties into one interpretation

      • Rule: Constitution is both supreme and singular. SCOTUS has the ultimate power to make final interpretations of the document.

    • Article III, Section 2, Clause 3

      • Congress has power to regulate the appellate jurisdiction of SCOTUS and other federal courts.

        • Power is often threatened but has never been used

          • E.g. abortion--Congress post-Roe threatened to withdraw SCOTUS’ jurisdiction over abortion issues

        • Cannot alter jurisdiction for an individual case (United States v. Klein, p. 51, 1872: Congress may not use this power to compel the court to reach decisions that would violate another part of the Constitution)

      • Congress sets the number of Justices, sets rules of procedure, etc.

    • Judicial Interpretive Supremacy (see Cooper v. Aaron)

      • SCOTUS is supreme interpreter and its interpretations are binding on all the other branches and on the states.

      • Alternative theory: Departmentalism. Each of the branches of government is entitled to interpret for themselves because there are 3 co-equal branches of gov’t that have each sworn to uphold the Constitution.

        • Nothing in document gives SCOTUS explicit and exclusive power

        • Departmentalists refuse to comply with SCOTUS rulings unless they are directly directed to them--view the rulings as binding only on the parties.

          • Continue following their own interpretation unless SCOTUS directs a ruling at them.

        • Hollingsworth v. Perry (Supp 96, 2013) (see also same-sex marriage)

          • Rule: State officials are not bound to defend state laws they believe to be unconstitutional

          • Dissent: Politicians should make decisions on policy grounds and let courts make constitutional decisions

      • Non-Acquiescence: In the absence of a SCOTUS ruling other branches may interpret, but once SCOTUS has ruled its interpretation is final.

        • Example: IRS ignores lower court decisions until SCOTUS rules

      • Popular Constitutionalism: complicated, basically congress/POTUS has the ability to scoot around constitutional decisions by the court in cases of popular opinion, such as Lincoln emancipating slaves

    • Limits of Judicial Review:

      • Can review State Supreme Courts only when there is a federal question

  • Powers of the Federal Government

    • General:

      • Issue: when can they usurp the states ubiquitous police power?

      • Answer: when they are authorized by the enumerated powers of constitution

        • Federal police power only extended to areas within enumerated powers

      • Constraint on the states: rights reserved to the people by the constitution

      • Federal courts generally lack jurisdiction over state supreme court rulings on state law.

        • SCOTUS may only hear appeals from state supreme courts when there is a federal question

      • Issue: are there implied powers for execution of enumerated powers?

    • Necessary and Proper Clause

      • “We must never forget that it is a Constitution on which we are expounding”

        • Constitution is not a legal code or exhaustive list of powers

        • Enumerated powers gives the ends, and necessary and proper lets the government determine the means

      • Implied Powers (Penumbras)

        • Certain powers necessarily entail other powers

          • E.g. power to coin money means power to build a mint, power to raise a navy means power to build a shipyard

      • Legislative Deference

        • SCOTUS defers to Congress on determining the extent of each enumerated power

      • Definition of Necessary:

        • Sort of necessary, necessary, very necessary, absolutely necessary, indispensably necessary? Where is the line?

        • Constitution uses “absolutely necessary” elsewhere so there is reason to believe that this is a more expansive definition

        • Marshall in McCulloch takes an expansive view interpreting it as closer to facilitative or useful, not absolutely necessary

        • Within Section 8 Defining power rather than section 9 limiting powers, thus it’s reasonable to consider it expansively, rather than in a limiting sense

      • ...

Buy the full version of these notes or essay plans and more in our Constitutional Law Outlines.

More Constitutional Law Samples