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Constitutional Law I
Rutgers University, Newark School of Law
Boddie, Elise C.

Con Law – Boddie Spring 2014

(P. I) Structures & Powers – I Intro

1. Buy the supplement, very thin book, to go with text. Blue cover

a. Final -> Open book, and patterned after class exercise.

b. Her Beliefs:

i. Learn more when apply in class, and useful for exam, and

ii. Reading assignments are approximate… could change anytime.

c. Federalism -> means a National or Central government

i. We need to balance the power between national and the state

d. Articles of confederation

i. Agreement among the states that they are loosely allied (pre Constitution)

e. THE US WAS STARTED ON THE PREMISE of a very small and limited federal budget.

2. Fed Govt’ structured to address the issue (Central Question) of HOW DO WE BEST PROTECT THE FREEDOM and LIBERTY of the people.

a. Separation of Powers – Each of the powers serves as a check & balance on the other powers

i. Congress

ii. Executive

iii. Judiciary

iv. States

b. Interpretive Tools of Constitutional Analysis

i. Text

ii. Intent of the Framers

iii. Constitutional Doctrine

iv. History

v. Context

c. How do we deal with problems that are not addressed by the Const itself and that were not contemplated by the framers? Is the Const a living document or a fixed/static document?

i. If the Constitution is constantly changing than how do we know what to follow

d. Key Questions:

i. What problems according to Madison, threatened the stability of the government?

ii. How does the governmental structure set forth in the Constitution (Arts. I – III) address these problems? (Fed. 10, 51 and 78)

3. Does congress have the authority to restrict voting practices?

a. We will review this in the coming months.

4. Articles of Confederation

a. Essentially the 1st constitution

b. (see attached paper on all of them)

c. Also begins to represent an agreement among the states that they are loosely allied.

i. NO central authority

ii. States to act and behave very independently

d. Federal government to have VERY LIMITED powers (Senate and House of Reps)

5. ** CONGRESS has powers that is EXPRESSLY GIVEN (States have everything else)

6. ** We are structured to address the Central Question:

a. “How do we best protect the Freedom and Liberty of the people.”

7. Historically:

a. Fed stepped in on minority state issues

b. Do we ‘fear’ too much or too little Federal Power?


a. Written as PR papers in support of the constitution

b. Don’t worry about minority factions, WORRY ABOUT factions of the MAJORITY.

c. Federal government CAN abuse its power.

d. Fed is TOO remote, TOO far away.

i. Are unaware of the concern from that distance

e. Wary of elitism

f. The constitution will take some power AWAY from the states

g. Madison was clear -> we fear factions

9. Federalist Paper #10 & #51:

a. Directed at two specific questions:

i. How to control the people? (Federalist 10)

ii. How to control the government (which controls the people)?

b. Federalist #10 – Trying to figure out how to solve the problems posed by “factions”

i. Offers a “prescription” for the problems posed by factions >>> forming a Republic

ii. Republic (Federalism) – a govt where officials are elected to speak on the People’s behaves

i. Creates a buffer b/w people at the federal and local level

ii. A large republic is better than a small republic bc:

1. There are more people to choose from

2. Better people to choose from

3. Less likelihood for faction

4. Serves as a “check & balance” on the power of the federal govt

iii. Problems with a larger republic are:

1. That the central govt will be out of touch with the local level

2. How to decide who controls

3. Deciding what issues fall within the purview of the federal govt vs. the State

c. Federalist #51 – Separation of Powers >>> Checks & Balances

We do not want the Federal govt and the States to be completely separate

Hence >>> Separation of Powers

10. Our system of government is a REPUBLIC. -> “We the people” elect representatives.

a. We need the buffer between the people and the government

b. Madison was focused on the advantage of a larger republic

11. Federalist #51:

a. Danger of too much power of any ONE branch of government … we need checks and balances

b. Also need to assure that the branches are indeed completely separate

12. Articles I, II, & III

13. FIRST RULE for Judges: try and avoid Constitutional issues

a. “Constitutional Avoidance”


1. From our handout:

a. #1 – YES

b. #2 Not really, can’t relinquish power, can give it up based on #18

c. #3 No, not without AUMF, even if the commander-in-chief. Article #2 prevents the absolute

d. #4 -> Article 3, section 2 ok for congress to make such laws.

i. Strip Supreme Court (Can fed stop court from hearing — yes)

1. Section 1 -> can make or remove courts -> they can’t divest, but can remove or destroy.

2. Article 1 Section 9 -> Habeas Corpus not be suspended … except… DOES NOT extent to NON-US citizens; “Rebellion or invastion”

e. Article 1 says “Herin Granted”, article 2 does not.

f. #5 What role should the Fed Judiciary play -> to see if unconstitutional

i. WORRY of whims of public “Factions” impulse and passions of public.

g. Requires separation of power: checks and balances

2. Should the court NOT intervene on the part of the government?

a. Counter Majoralitarianism -> who is a judge to second guess?

i. Used in part to guide analysis.

3. Federalist #78

a. About the judicial branch

b. Can judiciary strike down a Fed Statute

i. Any law inconsistent with the constitution is mot consistent with the people.

ii. Separation of powers is about protecting i9ndividual liberties

iii. NAVIGATE constitutions INSTINCT


e authority to review acts of Congress and determine whether they are unconstitutional and therefore void.

r. Issue #4 – Is asking for a Writ of Mandamus the correct legal remedy, and (issue 4a), if the mandamus is the correct remedy, can the Supreme Court issue it (aka is the issuance Constitutional)?

v. Yes, the mandamus is the correct remedy b/c withholding the delivery of the commission is an act that is part of the “normal duties” of the office, and is therefore not discretionary, but required by law.

vi. Issue 4(a), HOWEVER — NO, the S.CT did not have authority to issue the writ — the Constitution gives the S.Ct. two categories of jurisdiction: (1) Original; and (2) Appellate >> Art. III, §2 completely/exclusively defines the scope of the Court’s original jurisdiction, nothing can be added or taken away (Marbury’s claim fell into none of the areas)

1. In all other cases (where the Court has appellate jurisdiction), Congress is given the power to regulate what the Court can hear.

vii. Judiciary Act of 1789 ≠ Constitutional – in granting the Court original juris over claims for mandamus, the Act apparently added to the list of areas granting the Court OJ, thus running afoul of the Constitution

1. “It is emphatically the province and duty of the judicial department to say what the law is.”

2. A law repugnant to the constitution is void, and courts, as well as other departments, are bound by the constitution, as it is the law of the land (see The Supremacy Clause)

viii. Therefore – Art. III represents the maximum level of federal court jurisdiction & Congress does not have the power to expand the OJ of the Court (e.g. cannot authorize fed courts to hear cases beyond what’s specified in the Art. III).

GENERAL RULE — where the Constitution as interpreted by the Supreme Court, conflicts with laws enacted by Congress, the Supreme Court may declare such laws unconstitutional and invalid. The Constitution is Supreme! (Supremacy Clause Article VI) Ý NOTE: Federalist #78 Ý lays groundwork for judicial review ­– the supreme court is only enforcing the constitution so it is not overreaching their authority

3. Judiciary act of 1789

a. Does the Authority of SCOTUS to issue remedy -> NOW DOES have power for remedy

b. Constitutional question: is the Judiciary act constitutional?

c. Whether the SC is authorized or not

d. Judiciary act is unconstitutional, and power of the SC so say what is or is not constitutional.