Constitutional Law I Outline

Constitutional Law

Spring 2015

Professor Cohen

I. Course Intro

A. Course themes

1. Issue in cases is congressional power, not wisdom of law

a) Not should it have the power of should it make the law given the power, but does it have the power?

2. Federal gov’t is one of enumerated/limited powers

a) Has only power granted by Constitutionàauthorizes govt to act

b) Opposite of State‘s plenary police power

(1) ST can do what it wants to unless specifically prohibited

3. Role of ideology

a) Both generally, in rights of fed gov’t vs. rights of ST, and in specific issues

b) Principles and politics

4. Power of judicial review

a) CT has power to declare what is and isn’t constitutional

b) “judicially enforceable outer limits” on cong power

5. Separation of powers/checks and balances

6. Rights of ST and Federalism

a) ST and Fed have different rights and responsibilities

b) ST are labs for finding solutions

c) National character of today;s economy, education, transporation, etc

7. Theories of const. interpretation

a) Textualism, originalism, tradition, living const

B. Judicial Review

1. Power of the CT to review and declare the constitutionality of gov’t action

a) Normal Court function is interpretation

b) Not in Constitution

2. Federalist No. 78

a) If contradiction Const is valid, would change Const every time new law passed

b) Other branches more dangerous – too easy for them to take more power than given

(1) Judiciary weakest of branches, no influence over sword(Exec) or purse(Leg)

c) People/political process not enough to check other braches

(1) Can’t protect the minority from the majority

(2) Aren’t experts in Con law

3. Marbury v. Madison (1803) – Establishes the power of SCT to review Federal Legislative and Executive action

a) Marbury sues in SCT, original jurisdiction, for writ of mandamus to force Madison, incoming Sec of ST to incoming Pres Jefferson, to deliver his commission to be a federal judge

(1) Judiciary act of 1789 grants jurisdiction for the case

b) 3 issues ID’d by CT

(1) Does marbury have right to commission

(a) Yes – commission is complete and he has right to it

(2) Does marbury have a remedy?

(a) Yes – if there is a violation, there must be a remedy

(b) Except when it’s a discretionary act w/in the Exec’s power

(i) Ie, pardons and prosecutions

(c) Contrast w/ ministerial duties Pres is required to do by law

(3) Can SCT issue the writ?

(a) Judiciary Act of 1789 gave SCT power to issue writ via original jurisdiction

(i) That’s how Marshall read it, could also be read as giving SCT appellate jurisdiction

(b) Art. 3, Sec. 2, cl. 2 gives SCT original jurisdiction for ambassadors/ministers/consols (terms of art for officials from foreign nations) and cases where a state is a party. Absolute limit on jurisdiction

(c) Marshall read Art. 3, Sec. 2, cl. 2 as the ceiling to original jurisdiction

(i) Cong cannot authorize fed courts to hear cases beyond art. 3

c) Established Judicial Review – Marshall declares that the acts of the legislature contrary to the Const are void and that it is “emphatically the province and the duty of the judicial department to say what the law is.”

(1) Reasons the CT must have judicial review

(a) Written limits established in constitution are meaningless w/o judicial review

(i) If leg can change what’s const w/every new law, then its power is limitless and const is meaningless

(b) Those who apply the law must determine what it means, otherwise just congressional appendages

(c) Article 3 gives CT power to hear cases under the const

(d) Judges take oath to uphold const – becomes a first principle

(i) Cannot enforce law in violation of it

(e) Article 6’s Supremecy Clause

d) Takeaway points

(1) Constitution is regulatory, not inspirational – it’s the law, unlike Declaration of Independence

(2) Congress cannot increase the jurisdiction of Federal CT

(3) CT can review Federal Executive and Legislative actions for constitutionality

4. Martin v. Hunter’s Lessee (1816) – SCT declared power to review State CT decisions

a) VA SCT argues SCT has no authority to review it’s decisions b/c they are equal sovereigns

b) SCT says has power

(1) Need for uniformity and unbiased interpretation of fed law

(2) w/o power to review ST CT cases, SCT would only be able to hear limited number of original jurisdiction cases

(3) Judiciary Act of 1789 granted SCT power to review ST CT cases

5. Cohens v. VA (1821) – Power of SCT to review ST criminal cases

a) SCT reaffirmed constitutionality of Judiciary Act and its ability to review ST CT decisions.

b) Declared that criminal defendants could seek SCT review when they claimed their convictions violated the Const

6. Marbury + Hunter’s Lessee + Cohens = Power of Judicial Review over all “cases and controversies”

C. Constitutional interpretation

1. Why its needed

a) Const is silent on a lot of issues

b) Uses broad and general language

c) Changes in society, technology, etc

d) Some things, taken literally, don’t make sense

2. Theories of Const interpretation

a) Textualism – strict reading of text

b) Originalism – what was the original understanding when it was passed?

c) Popular constitutionalism – it means what we the people say it means

d) Traditionalism – look @ history of u.s., what traditions have become well established = ppl’s approval

e) Living constitution – what was the goal and how can it best be served today?

f) Holistic interpretation – interpret language in light of entire document

II. Article I – Congress: The Federal Legislative Power

A. Congress and the States

1. FG has limited, enumerated powers – cong can only leg if given power

2. ST has broad police power – can leg so long as not prohibited

3. Art. 1, Sec. 1 – All power ‘herein granted’ – this is the entire list, not a sample

4. 10th Amendment – powers not delegated left to the states

5. Federalist No. 45 – Madison: need for strong FG, goes back to Art. Of Conf.

a) National gov need to be strong

(1) Protect against foreign danger, need for nat. military

(2) Deal w/interstate problems, fear of loose collection of states battling over taxation

(3) Protect peace and liberty of people from abuse by states, need for checks n balances

b) ST still retain power and some sovereignty

(1) ST leg elect US Sen, are apart of the FG

(2) Sheer size – more St gov than Fed, more ppl will work for the state

(3) In control of peoples’ day to day life

6. Federalist 45- Madison

a) The powers delegated by proposed const to the fed gov are few and defined. Those which are to remain in the states are numerous and indefinite

(1) Need for strong gov.- Art. Of Con

(2) Anti-feds worried to much power in central gov

(3) States are represented in legislature- thus apart of FG

(4) States have a lot of power to enact laws- need for checks and balances

7. McCulloch v. MD (1819)

a) MD tries to tax Bank of US

b) Q1: can cong create bank? Yes.

(1) Past practices show cong has power – has US Bank before

(2) Same people who wrote Const created bank – CT buys the argument it rejected in Marbury

(3) Ppl give power to Const, not States, therefore States do not have veto power over FG

(4) Constitution includes implied powers

(a) No clause, like one in articles of confederation, saying that only powers expressly granted are given to cong

(b) Creates broad framework – details must be filled in

(c) Must be read differently than way read statutes

(d) Power implies means to execute

(i) “powers given imply ordinary means of execution”

(ii) Power of purse can imply power to create bank – ordinary way to execute power to tax and spend

(5) Necessary and Proper Clause – Art. 1, Sec. 8, cl. 18

(a) Cong has power to make all laws whi