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Constitutional Law I
Rutgers University, Newark School of Law
Bell, Bernard W.

Constitutional Law Outline Spring 2013 Professor Bell

I. Introduction

a. Federalism – Framers conceived it possible to have 2 sovereigns governing at the same time over same area – Fed and State

i. Limits of Fed power over individuals? What powers can they exercise as opposed to States over indiv?

1. 1 way is Fed gets ABC, States can do XYZ

2. Article I § 8 Clauses 1-18: enumerated powers of Fed gov. States have power over everything else (plenary powers)

ii. Sovereigns vs each other: Can Fed regulate States like individuals?

b. Separation of powers – Congress (Article I), President (Article II), Courts (Article III), relationship between each branch – powers, checks, and balances

c. Individual rights – entitlements that gov can’t take away. Ex: freedom of speech, due process, EPC. Limits on enumerated powers and plenary powers

II. Chapter 2 – Judicial Review

a. Marbury v Madison 1803 – established authority for judiciary to review the Constitutionality of Executive and Legislative acts.

i. Facts: Marbury appointed as justice of peace, didn’t get commission delivered before Jefferson took over as POTUS (then told Sec of State Madison to withhold). Marbury sued in SC for writ of mandamus to compel Madison to deliver. Marbury claimed Judiciary Act of 1789 authorized SC to grand mandamus in suit filed initially in SC.

ii. Holding: Marbury loses, SC said can’t Constitutionally hear case as matter of original juris. JA unconst b/c Congress cannot allow original juris beyond situations enumerated in the Constitution.

1. “The government of the US has been emphatically termed a government of laws, and not of men” – no person, even Pres, is above the law.

2. Political questions not to be made in this court. Judiciary can review Constitutionality of Executive actions (where legal duty to act or refrain from acting, judiciary can provide a remedy)

3. Article III enumerates original jurisdiction for suits “affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a party.” – SC said Congress can’t add cases seeking mandamus to this list

a. Marshall: A3’s enumeration of original jurisdiction would be “mere surplusage…entirely without meaning” if Congress could add more areas of original jurisdiction

4. Marshall’s reasons for why SC can declare Federal laws unconstitutional:

a. Const imposes limits on gov powers and these limits are meaningless unless subject to judicial enforcement.

b. Inherent to judicial role to decide Constitutionality of the laws it applies. “It is emphatically the province and duty of the judicial department to say what the law is.”

c. SC’s authority to decide cases arising under Const implied power to declare laws conflicting with Const as unconst.

d. Judges take oath of office and would violate it if they enforced Unconst laws.

e. Judicial review appropriate because Article VI makes the Const the “supreme law of the land”; “the Constitution itself is first mentioned; and not the laws of the US generally, but those only which shall be made in pursuance of the constitution, have that rank.”


iii. 2 types of jurisdiction:

1. Original – trial court type. Initial complaint filed, action resolved initially

2. Appellate – hear appeals from lower decisions

iv. SC does have original juris in some cases – Marbury chose to bring case under original.

v. Province and duty of judicial dept to say what the law is. Those who apply it must expound and interpret that rule

vi. A3 § 2 Cl. 2 – Original Juris on listed areas (ambassador cases, other public ministers and consuls, and those in which a state shall be a party), appellate otherwise.

vii. “Where there is a right, there needs to be a remedy.”

viii. Marshall concludes Congress can’t move things into original jurisdiction of SC – textual interpretation.

ix. Why is Judicial Review important? Point of Const is to giv Gov ability to regulate ppl/individuals. Const is pre-commitment strategy: some principles important for gov and when crisis – do these expedient things/principles. SC is enforcer.

1. Counter majoritarian difficulty – Democracy yet major questions decided by non-elected group with life tenure

2. Judicial decisions set the floor for what Const requires, but not the ceiling. Ex: Pres disagrees, doesn’t sign bill even though Court says it is Constitutional.

a. SC on search and seizure: no privacy expectation in bank records, phone records. Cong and Pres pass statutes giving privacy and limitations on them (SC floor, not ceiling).

b. Power of adjudication and Congress’ control over jurisdiction of Federal cts

i. Can Congress confer power to adjudicate on administrative agencies? Textual interp says no, only A3. SC hasn’t been strict, allows it (Social sec admin hears most issues in fed system).

1. CTFC v Schor 1986: can give self the power to adjudicate in some circumstances. Article 3 § 1 has 2 purposes: structural role in gov – ensures court can be effective in checks and balances. Cong can’t give adjudications to non A3 courts if it emasculates A3 courts. 2) individual rights – safeguards rights to have claims decided by judges free from domination by other branches of gov

2. Black letter law: Cong can give tribunals power on claims made against gov for gov benefit – ssa, veterans, or civil penalty claims for regulatory claims made by gov – impose civil fine on someone for statutory violation. But, limited in giving them that power between private parties (particularly common law claims)

3. Congress can create bodies to adjudicate that aren’t Article 3 courts (ex: SSA called A1 court, created under Cong’s A1 power)

4. If you have claim against gov and person civil, likely done in non-A3 court. If between 2 private ppl (common law claims), likely can’t be done in non-A3.

ii. If agencies can be given that power, must Cong provide for judicial review in A3 ct? Depends. Statutes that purport to preclude judicial review are suspect. 2nd, strong presumption that Congress doesn’t mean to preclude all review.

1. Heavy presumption in statutory interpretation that not meant to cut off all judicial review

iii. Can Congress withdraw juris from SC to hear some Const claims? Does Cong have control over lower Fed ct jurisdiction?

1. Yes to both to some extent. Lower Fed cts (Dist Ct, COA): they only exist because Cong created them. Const authorizes Cong to establish them, thus Cong can define their juris on creation.

2. SC: Const makes the SC, gives Cong textual power to make some exceptions and regulations. Cong could manipulate juris to fix outcomes.

3. Ex Parte McCardle – extreme example of Cong controlling SC juris. After Civil War Recon, Cong statute to remove SC juris while case is there. SC upholds Cong’s ability to do it. There were other means to challenge Recon so let it happen.

c. Handout: Constitutionality of Legislation Withdrawing Supreme Court Jurisdiction to Consider Cases Relating to Voluntary Prayer

i. Cong’s power to limit SC can’t be brought if infringes on Court’s core functions

and Fed Const grounds. Clear Statement Rule – unless clear on face of opinion that it’s based on State law grounds, US SC will assume it’s based on Fed law

iv. Michigan v Long 1983 – State courts must clearly and expressly write that their decision rests on bona fide state grounds. If so, SC will not review it. (independent grounds rather than Const grounds)

1. Empowers State courts – they know what to do if they want opinion resting only on State ct grounds

v. Erie Railroad v Tompkins 1938 – No such thing as Federal common law. When case questions state law, court must reason using state law

1. Swift v Tyson 1842 – There are times when Fed cts in diversity cases don’t have to apply a state law, but can apply a general Fed common law. State law applies only if statutory or if issue involves rights or things having permanent locality (real property). Otherwise, general Fed law

2. But here, no Fed common law. Law of relevant state applies:

a. Cong has no power to declare substantive rules of common law applicable in a state. No clause in Const purports to confer such a power upon Fed cts.

3. Overrules Swift: Swift was “unconstitutional assumption of power by Cts of US.”

4. 2 step inquiry:

a. Is the issue properly the subject of the exercise of Fed power?

i. If not: Fed cts not going to create Fed common law b/c there is no Fed interest

b. Is it wise as a matter of policy to adopt a Fed substantive rule as matter of the issue? Take in to account any competing state or fed issues involved.

5. Bell notes: Erie is saying that in cases based only on diversity jurisdiction, there is no Fed common law – apply law of relevant state.

a. If in Court because of Fed question (Fed interest, Const issue, treaties, statutes), then there can be Fed common law

b. Fed law likely to be developed:

i. Issue relates to Fed program that by its nature must be uniform and character throughout the nation (uniformity interest)

ii. When the application of state law would frustrate a Fed program’s objective (prevent frustration of Fed objectives)

c. 4 areas of Fed common law development post Erie:

i. Protection of Fed gov proprietary interests (Fed gov interest in real prop and K rights) – gov’s interest in own paper (checks and promissory notes)

ii. Tort cases – liability rules to protect Fed interests

iii. International relations – State law can’t govern IR; sphere of national gov

iv. Disputes between states

d. Justiciability – Whether or not SC can hear certain cases and make certain opinions

i. Limits on whether SC has justiciability

1. Advisory opinions – nonbinding decision helping to advise – SC doesn’t have authority to give these

a. Case or controversy requirement – SC can’t give opinion on abstract or hypothetical question (Article III § 2)