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Constitutional Law I
Rutgers University, Newark School of Law
Weiner, Mark S.


Weaknesses of Articles of Confederation à Constitutional Convention

Gave too much powers to the states and not enough federal powers so that the nation wasn’t truly a union.
More difficult for Congress to infer certain powers. By taking out the word expressly it gave more leeway as to what it could control.

Creation of national government with power to act over individual citizens

POPULAR SOVEREIGNTY; the ppl rule= Republican Gov’t of limited powers
Preservation of rights- being citizen of both state and fed can serve as a check. Gives citizens different venues for remedy if rights are violated.
States can only give more rights that the Fed constitution

Ratification of a written constitution (contra, e.g., England): significance?

In England it’s all be precedent, there is nothing written. It’s much easier to change
Sets framework and parameters within which states and fed can and cannot act.
Amendment process makes it difficult to change the Constitution. If it wasn’t written there would be nothing to change. Rules could change public sentiment or times of crisis without real thought as to what is being done if not for the amendment process.

Republican government (“We the People”) of limited powers

The people compose the Federal government as individuals and not as any collective group.
The few cannot impose rules on the many
Limited Powers

Establishes system of checks and balances
Because the gov has only the rights granted to them by the Const

Structurally balanced between three coordinate branches (separation of powers) and the states

Article I (Legislature), Article II (Executive), Article III (Judiciary). Compare extent of
enumeration of powers in each: significance?

Legislature- has more powers enumerated to it b/c founders wanted it with these specific powers and grant more deference to the other two branches. As a law-making body that represent the people, its powers are limited to those “herein granted”

Federalist 78: S.C. is least dangerous branchà “no influence over the sword or the purse” the other two branches HAVE these powers.

Executive- less then Leg. ALL executive power rests in the president. The ones that are enumerated are vague. So it could be this is to have the president with broad powers OR limit him to those specifically enumerated [check the executive b/c of the Revolution] Judicial- “least dangerous branch” in the Federalist but you could argue its more dangerous now b/c judicial review isn’t enumerated in the constitution. The Court has become the sole voice about what the Constitution is.

Why divide power between three branches?

Checks and balances, so that one branch does not end up holding all of the powers
To secure from ppl tyranny of the majority/ Make sure citizens’ rights are protected

Why maintain two levels of government?

Ensure representation and the protection of rights

Article VI, the Supremacy Clause: significance?

The Constitution is the supreme law of the land
State can’t challenge a right that has been given to the Federal government by the Constitution
All members of government whether state or federal are bound to the constitution and the ultimate arbiter of the Const is the Supreme Court

Article V, amendment process: significance?

Makes it difficult to change the constitution.
The constitution can’t be changed by a whim.
Majority have to have a strong desire for the change to occur.
2/3 of both house must ratify.

Which branch would be the “final” arbiter of constitutional meaning?

As it works now, the Judiciary is the final arbiter constitutional meaning because they can ultimately overrule or invalidate a law that Congress has passed which they find to be unconstitutional.
Justicability doctrines are generally the exception to this. (pg.35)

Where a question is too political or would cause too much friction between the branches, the Court will not pass judgment.

Article III: The Judicial Power
Judicial Review

No explicit mention of judicial review in Article III

Establishes jurisdictional power

Marbury v. Madison: significance? A “judicial coup d’etát”?
“It is emphatically the province and the duty of the judicial department to say what the law is.”

Established judicial review
Some view it as having taken too much power, others view as just a byproduct of constitutional authority.
If the court had no review power it would have no check over the legislature and the executive branches.

Historical context of Marbury

Election of 1800. Very first time in which there will be a peaceful transition of power in the US between two political parties
Contest between Federalists (Adams) and Republicans (Jefferson).

Fed: elites, bankers, urbanites, centralizers, nationalists
Rep: Now the Dems. Farmers, debtors, localists, states rights

Reps think that the Feds are tyrannical centralists. Feds think that Reps as admirers of the French Revolution.
Feds had been in power a number of years. Feds beginning to fear that they are going to lose immediate political power and everything they have done for the nation.
Burr and Jefferson fight over presidency. Congress is responsible for deciding winning. Jefferson is decided to be the winner.
Feds want to find a way to maintain power and they do it through the courts. They begin to appoint various judges in the last days of office. (midnight judges) Justices of the Peace in D.C.
Marshall was the Secretary of State at the time Adams signed for the midnight judges. James Madison [Pres Jeff’s New Sec of State] doesn’t give Marbury [a Fed.] the commission.


Once John Marshall seals the commissions he gives to his brother [James]. All James had to do was deliver them to the justices of the peace.
Conflict of interests- it was Marshall’s brother that didn’t deliver MBY’s commission plus he was secretary of state at the time. “GATE 1= RECUSE HIMSELF”

Does Marbury have a right to the commission?

Yes, as soon as it was signed and sealed he has a vested right to it.

Does M have a remedy to this vested right?

Yes, writ of mandamusà a court order of a public agency or governmental body to perform an act required by law when it has neglected or refused to do so.

Is it appropriate to issue such a remedy against the sec. of state?

No, unseemly for the court to review the acts of a political official. Elected officials should be liable to the conscience of the people—not judges.

Judiciary Act of 1789- established a series of lower courts and their structure/jurisdiction. Gives the S.C. power to issue writ of mandamus to any US officer. It was the law that Marbury argued under for his commission.

i. Marshall- the JA of ‘89 attempts to expand the power of the judiciary in ways inconsistent of the constitution.
ii. Art 3 gives S.C. original jurisdiction with cases dealing with ambassadors, etc.. For all other cases the court has appellate jurisdiction.
iii. Reasoning: This statute conflicts with Art III of the Const, which does not grant the S.C. original jurisdiction over cases involving executive officers. ONLY in cases with with ambassadors, other public ministers and consuls can the court exercise their power. [limited by Art 3 sec 2].
iv. JA of 1789 is void. “It is emphatically the province and duty of the judicial department to say what the law is.” Congress cannot limit or expand the Court’s original jurisdiction.

nal which are RARE under an originalist reading
o supports powerful leg/exec branch

Arguments against
– text of the constitution is difficult to apply; its uncertain what framers meant
– the constitution’s meaning should change over time and the article 5 amendment process is too cumbersome to allow it to take place.
– What if the framers intended non-originalism?

Non-originalism- judges can interpret values that aren’t clearly implied/stated in the Constitution.

Courts can legitimately interpret the Const. in a flexible manner. But it must be faithful to the Constitution itself.
Associated with textualism

Textualists- originalists who focus on the “plain meaning” of the constitution
– Justice Hugo Black. The 1st amendment means Congress can make NO law to abridge freedom of speechà FCC is unconstitutional
– Pros: simple. Con: Well, what sources do you use to understand the plain meaning of a text? What happens when the plain meaning of a word changes over time? [commerce means a lot more than it did in the 1800’s]

Structuralists- infer constitutional structures that are evident in Const which set up relationships between the branches.

Historical originalism- Seeks to search for original intent/meaning through historical analysis. Find out what was common practice of the activities covered by a provision. [Scalia/Thomas] to find out what “cruel and unusual” punishment means you look to 1787 and see what legislatures can/cannot do.
– Where do you look for evidence of these views?
– Which are more persuasive? Newspaper articles or state ratification debates?
– Also endorses strong judicial restraint

Doctrinal reasoning [Precedent] – Justice O’Connor- stressed importance of the court to strictly adhere to what it decided in the past.
– Precedent is easy to overemphasize b/c it can sometimes be wrong [Plessy]

Process Theory
– Judicial review is most legitimate when it serves certain values: policies that reinforce the democratic character of gov’t
o Representation reinforcement should be facilitated by JR.

Constitutional Prudence- reconcile conflicting values through a political process
– Used especially when doctrines conflict
– Take note of the social/political context of when the judges make their decision
· Prob: could lead to unprincipled results

Moral Reasoning- const embodies certain moral principles: fairness, equality, justice
– Natural law principles are embodied in the constitution/its spirit- Justice Warren

Limits on Constitutional Adjudication

Justiciability- judicially created doctrines that define and limit the circumstances under which a federal court can exercise its constitutional authority/judicial review. Four types: mootness, ripeness, standing and political question.

Sources of justiciaibility doctrines: text of Article III, prudential concerns, structural reasoning

TEXT: Article III specifically says Courts cant issue advisory opinions.

· STRUCTURE: inferences from the Const. itself i.e. separation of powers.
· PRUDENTIAL CONCERNS- safeguarding the institutional authority of the court