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Constitutional Law I
Rutgers University, Newark School of Law
Payne, John M.



Created in response to the weak federal quasi-structure created under the Articles of Confederation, under which there was no federal executive or judiciary

à EXAMPLE: The pre-1787 Constitution didn’t enable the federal government to tax

Ratified by 1788 and enabled the federal government to be its own sovereign power

Despite the colonial emphasis on individual liberties, the Constitution didn’t initially have a civil liberties section for two possible reasons:

1. Fear of debate over them and its potential for not getting the document passed.
2. Not including the Bill of Rights empowered Congress to invade rights not specifically protected under the Constitution
3. having a bill of rights might suggest that these are the only rights protected by the constitution when the founders really wanted the constitution to limit the power of congress itself

Eventually, it was amended and outlined and preserved individual liberties. There is a question of whether it limits government powers or individual rights

Federalism is one of the mechanisms by which we recalibrate the powers of the state and federal governments and their goals

The framers of the Constitution didn’t contemplate a 2-party political system and expected candidates to run independently. They made a drafting mistake regarding the Electoral College. The one who got the most votes would be president and the one with the second most votes would be vice president. The Congress would decide the winner in case of a tie. By the time Jefferson and Burr ran, candidates were running on tickets

Marshall view of the Constitution: This is a Constitution we’re expounding, not a code of laws (pragmatic view of the document; anti-thesis of literalist view)

Articles I-III of the Constitution are the source of the “separation of powers doctrine”

A state constitution tells a state what it cannot do, the federal constitution tells the federal government what it can do.

Constitution is cited for, but never actually mentions:

Separation of powers
Executive privilege
Political question
Handling of foreign affairs
War as duality (president is comm.-in-chief, congress declares war)

Separation of Powers & Federalism


** The federal judiciary can interpret the Constitution, statutes, treaties, and adjudicate disputes b/w states, diversity suits, states and foreign citizens, and cases & controversies w/in exclusive jurisdiction of the federal courts

** The Court is a political body and has the same ability as the other branches to set national policy. However, it has limits – though such limits are unclear. Even if a matter is unconstitutional, the power to effect change may be beyond the courts since the judiciary lacks its own police force to enforce its decisions

à ‘Tinkerbell’ theory: “We believe, we believe.” The court only has as much power as the public believes it has. The court depends on the good will and acceptance of the American people to enforce its decisions.
à EX: E

rpreting the Constitution. It’s just doing its job.

If judicial review didn’t exist, then there’d be oscillation between congressional interpretation of the Constitution and judicial interpretation.

àLincoln said there is an ongoing dialogue between the branches (judicial ruling on the case and other political branches’ pressure on the courts to reconsider or try to effect the ruling in a manner they see fit but within the framework of the ruling)

§ MARBURY PROBLEM: When the Court uses its discretion to not address a constitutional issue (because it feels it can’t effect a substantive result in the controversy or feels the result is better achieved in another arena) and leaves open the possibility for congressional interpretation of the Constitution. Thus, it’s relinquishing its role as the ultimate arbiter of the Constitution’s meaning.

§ Why didn’t the court confront Jefferson?

o Might not have had the power to confront the president
o Judicial review was more interesting to marshall than the decision
§ Why does Justice Marshall claim the power of constitutional interpretation lies with the court?
o Congress can’t or why would they have the power to amend the constitution – they could just reinterpret it
The court was designed for that reason (Acc. Marshall)