Constitutional Law I: Structure

The kinds of argument used in constitutional cases, originalism and living constitutionalism presented as their advocates present them, and precedent in constitutional law.

1. Kinds of Constitutional Argument
2. Originalism
3. Living Constitutionalism
4. Precedent in Constitutional Cases

Marbury and judicial review, review of state courts and judicial supremacy, Congress's control of jurisdiction, standing in constitutional cases and political questions.

1. Marbury v. Madison
2. Review of State Courts and Judicial Supremacy
3. Congress and the Courts' Jurisdiction
4. Standing in Constitutional Cases
5. The Political Question Doctrine

Congress as a government of enumerated powers, McCulloch v. Maryland and the Necessary and Proper Clause today.

1. A Government of Enumerated Powers
2. McCulloch v. Maryland
3. Necessary and Proper Today

From Gibbons v. Ogden through the narrow readings of 1887 to 1936, the turn of 1937, Wickard, the civil rights cases, Lopez and Morrison, Raich and NFIB.

1. Gibbons v. Ogden
2. The Narrow Era (1887 to 1936)
3. The Turn of 1937
4. Wickard v. Filburn
5. The Commerce Power and Civil Rights
6. United States v. Lopez
7. United States v. Morrison
8. Gonzales v. Raich
9. NFIB v. Sebelius: Commerce

The taxing power, the spending power and the general welfare, conditions on federal grants, and the rule against commandeering the states.

1. The Taxing Power
2. The Spending Power
3. Conditions on Federal Money
4. Anti-Commandeering

The Tenth Amendment as a limit, state sovereign immunity, Congress's power to enforce the Civil War amendments, and preemption.

1. The Tenth Amendment as a Limit
2. State Sovereign Immunity
3. Enforcing the Civil War Amendments
4. Preemption

Limits on states that discriminate against or burden interstate commerce, the market participant exception and the Privileges and Immunities Clause of Article IV.

1. Discrimination Against Interstate Commerce
2. Pike Balancing
3. The Market Participant Exception
4. Privileges and Immunities of Article IV

Youngstown and presidential power, nondelegation and major questions, the legislative veto and the line-item veto, appointments and removal, foreign affairs, war and detention, and executive privilege and immunity.

1. Youngstown and the Three Zones
2. Nondelegation and Major Questions
3. Bicameralism, Presentment and the Line-Item Veto
4. Appointments
5. The Removal Power
6. Foreign Affairs
7. War Powers and Detention
8. Executive Privilege and Presidential Immunity

The framework courts use to review laws: rational basis, intermediate scrutiny and strict scrutiny, and how a court chooses among them. It carries over into Constitutional Law II.

1. Rational Basis Review
2. Intermediate and Strict Scrutiny
3. Choosing the Tier