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Constitutional Law I
Faulkner Law - Thomas Goode Jones School of Law
Olree, Andy G.

Constitutional Law, Fall 2010

I.                  Judicial Review and the Function of Federal Courts
A.    Introduction to the U.S. Constitution
·         3 Main Topics (all from the Constitution)
o   Judicial Review
o   Federalism
o   Separation of Powers
·         Declaration of Independence (signed in 1776) vs. Constitution of the US (1787)
o   Declaration is NOT law; merely a declaration of a free and independent state
o   ONLY the Constitution is law. The highest law in the land. Any law will be trumped by it.
·         Separation of powers
o   Making law – legislative branch
o   Enforcing law – executive branch
o   Interpreting law (applying) – judicial (SCOTUS)
·         2 kinds of federal courts
o   Art I courts: tax, bankruptcy, etc.
o   Art. III courts: SCOTUS, circuit courts, and trial courts.
·         Judicial Review is the power of the courts to check the other branches and other governments
o    (i.e. – county, state).
·         Federalism
o   Division of Power b/w central power and the states.
o   States came first and that influences greatly the way federalism is interpreted.
·         Between 1776 and 1787, states stated writing constitutions.
o   Articles of the Confederation: 1781
§ It was a treaty b/w independent, sovereign states.
·         Sovereignty: recognizes NO higher authority unto themselves.
o   Under this, NO sovereignty.  
o   An attempt at a union of the states.
o   To change it, it needed a unanimous vote by all member states.
o   Tried to fix it by ratification in 1781.
o   Lasted only 6 years.
o   Weak form of government.
·         Today, in the US, we have 51 different sovereignties:
o   50 states + federal government.
·         Constitution: 1787
o   Wanted to create sovereignty in government
o   States are sovereign because they subscribe to both the US Constitution and their own state constitution, by their own sovereign choice.
§ Federalists (balance) v. Anti-Federalist (no balance, no central gov.)
o   3 branches
§ Sphere of power over national matters
§ Doctrine of enumerated powers (Art 1 §8)
o   *silence of the document prevents the government from exercising powers on such matters.
o   Ratification – states MUST approve it.
§ 2/3 of the states.
o   To be amended,
§ It needs ¾ of the states.
o   *First ten Amendments are the Bill of Rights.
o   1788 – 2/3 of states ratified.
§ So, by its terms – new government but some of the holdout states where big.
o   1790 – remaining states ratified
o   1791 – Bill of Rights ratified and sent to other states.
o   Powers:
§ Power to tax individuals
§ Power to standardize currency
§ Power to regulate trade between states and foreign countries.
o   New Constitution was NOT an opposite of the confederation – did NOT give up the sovereignty of the states.
o   *This was the FIRST in the world to do this type of government.
·         Epstein and Walker
o   Introduction to the U.S. Constitution (basically what is above)
·         Art. III §§ 1, 2 of the U.S. Constitution
o   Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
o   Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;–between a State and Citizens of another State;–between Citizens of different States;–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
o   In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
o   The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
·         Chemerinsky Excerpt
o   Speaks on Constitutional creation, interpretation, and construction
·         May and Ides Excerpt
o   Speaks on Judicial Review. Judicial review is the fountain of the Constitution. This is true for several reasons. First, the process of judicial review has created the body of reported decisions that we think of as the law of the Constitution. Second, the process of judicial review is what makes the Constitution binding and enforceable as law. And that nothing in the Constitution allows for the federal courts to pass on the validity of action taken by the other branches of the federal government or by the states. Yet the historical backdrop against which judicial review emerges makes it clear that the the doctrine is fully consistent with the founders conception of a balanced democracy in which abuses of power by one branch may be checked or prevented by actions of the coordinate branches.
B.     Judicial Review Power
·         Federalist 78
o   In Federalist No. 78, Hamilton says that the Judiciary branch of the proposed government would be the weakest of the three. Hamilton believed that because the judiciary had neither “FORCE nor WILL” to enforce its judgments, there was little concern that the judiciary would be able to overpower the political branches. The political branches have the institutional capacity to make and enforce the law: Congress controls the money flow and the President controls the military. Courts, on the other hand, do not have the same clout from a constitutional design standpoint. The judiciary depends on the political branches to uphold its judgments. Legal academics often argue over Hamilton’s description of the judiciary as the “least dangerous” branch. Hamilton also explains how federal judges should retain life terms as long as those judges exhibit good behavior.
·         The Complete Anti-Federalist, Brutus, Essays 12 and 15
o   Throughout 1787-88, as Americans continued to debate the proposed Constitution, one of the most contentious issues was whether the Union – tightened into one indissoluble nation under a federal government – could be maintained withou

tment to say what law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. IF two laws conflict with each other, courts must decide on the operation of each.”
·         Anti-Federalist view on judges according to the Federalist papers.
o   Judges are too powerful and are an un-checkable branch because they get the last say on what the law is and no one can dispute this.
§ “Don’t want the fox to guard the hen house” – why put courts in charge of regarding what the Constitution mean? Federalist state judiciary is independent referee in regarding if Congress and President are doing what they are supposed to be.
·         Cooper v. Aaron
o   Main Point:
§ When SC interprets law of the land (constitutional issues) they become the status of the law of the land. But when interpreting a statute, it is not the law of the law, and therefore, can be fixed by a majority vote by both houses with a president’s signature. If law of the land (@ constitutional level), it can only be overturned by an amendment (2/3 votes of both houses).
§ Regular (non-constitutional) decisions are NOT at const. level.
§ So there are limits on judicial review.
o   What we say the constitution says is constitutionally binding.
o   Power of federal courts dealing with final say on what other branches of government can do
o   Judicial review power is binding on litigants outside of the branches of government
o   State actions MUST follow the authority set out by judicial review and MUST follow those rulings
o   States can’t execute their own decisions/rulings regarding what the Constitution actually means—the opinions of the judiciary must stick to states as well
o   States MUST follow decisions regarding the meaning of the Constitution set out by the Supreme Court regardless of any state’s personal feelings/thoughts/positions on the issue
o   State sovereignty and its power has somewhat been taken away by this ruling to follow federal decisions regarding Constitution—federal gov’t argues that the state never had this particular power and always had to follow constitutional interpretation made by the courts
§ On certain issues, states don’t have sovereignty but will on other issues
§ It’s a trend that states are losing some of its power overall—states control less than they used to
o   P. 18 of decision talks about the effects of Marbury v. Madison—Constitution and its interpretations is the supreme law of the land
§ Constitutional interpretation holds great weight and means the same as the Constitution and should be followed emphatically
§ This is big statement made by the court and changed how decisions were followed
·         Nullification Doctrine and the Interposition Doctrine
*Both of these are understandings of other actors when