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Constitutional Law I
Rutgers University, Newark School of Law
Gonzalez, Carlos

Constitutional Law Gonzalez Spring 2015


Historical Setting (1763-1803)

The Constitution had its precursors in the Revolutionary War (1776-1783).

Seven Years’ War (1754-1763) led to high British war debt, which led to increased taxation of the American colonies.
State constitutions sprung up as a practical reality to administer colonies in absence of British government.

Constitutions were made by elected legislatures, except for Pennsylvania, which relied on a convention.
Generally, state constitutions were populist and decentralized.
The most radical was the Pennsylvania Constitution, which called for popular sovereignty, popular elections, one-year terms, and expansive voting rights.

The Articles of Confederation was the first national constitution, fully ratified in 1781.

The Articles was more of a pact between nations than a national constitution.
Had mostly elements of federalism, such as all un-enumerated powers being vested in the States.
But also maintained some elements of nationalism, such as a full faith and credit clause (Art. IV), privileges and immunities clause (Art. IV), and limitations on States’ powers over foreign affairs (Art. VI).
Mostly, the Articles called for a weak central government with main powers vested in Congress. Art. IX vested enumerated powers in Congress, similar to the current Constitution.

However, the Articles led to early political dysfunction.

Congress had no power to regulate interstate commerce.
Nine of thirteen States were required to pass legislation.
Thirteen of thirteen States were required to amend the Articles.
Congress had few teeth to enforce its laws against the States.

State constitutions also relied too heavily on the popularly-elected legislatures, and did not have strong executive or judiciary branches.

Shay’s Rebellion (1786-1787) was an example of the ineffectiveness of the state constitutions. The Legislature refused to enact debt forgiveness laws and a minority faction of farmers revolted.
The courts offered little relief for many of the citizens, who were too dependent on the Legislature.

Madison noted in Federalist No. 48 that branches needed to be checked and that the country should not be subject to “electoral despotism.”
Annapolis Convention of 1786 – delegates agree to meet again to discuss amendments to the Articles.
Philadelphia Convention of 1787 – creation of the Constitution, although many disagreements.

Fifty-five of seventy delegates from twelve states.
Question: Was the Constitution illegal under the Art. XIII of the Articles of Confederation, which held that all changes to the document must be “confirmed by the legislatures of every State?” The Ratification Clause (Art. VII) deems ratification by nine state conventions sufficient.

There were many axes of disagreement at the Philadelphia Convention.

Federalists v. Anti-Federalists

Federalists wanted a strong national government and more checks on the legislative branch. Anti-federalists wanted a decentralized government with a populist legislative branch.

Large States v. Small States

Large states wanted a unicameral legislature based on popular elections. Small states wanted a bicameral legislature with an equal number of representatives between states.

Slave States v. Free States

Biggest source of disagreement among the States.
In 1790, almost one-quarter of the population was enslaved and twenty-five of the fifty-five delegates owned slaves.
John Rutledge and Charles Pinckney, both of South Carolina, refused to form a Constitution without slavery.

Slavery never explicitly mentioned in the Constitution, but it appears in several areas:

Art. I, sec. 2, para. 3: Also known as the three-fifths compromise, slaves are deemed to be three-fifths of a person for apportionment purposes.
Art. IV, sec. 2, para. 3: Also known as the Fugitive Slave Clause, fugitive slaves had to be returned to their owners.
Art. I, sec. 9, para. 1: the Migration and Importation Clause stated that the national government has the power to prohibit the slave trade after 1808 and can tax slaves.
Art. V: prohibiting any amendment to Art. I, sec. 9, para. 1 and reconfiguration of the Senate.
Art. I, sec. 3: establishing that each State will have two Senators, regardless of population.

The resulting Constitution had many political innovations, those of which explicitly overruled the Pennsylvania model of governance.

Separation of Powers: the Federalists won out, as the document bulked up the Executive and Judicial branches.
Lessened Popular Sovereignty: the Constitution was ratified by conventions, not state legislatures.
Lessened Populism: Elections were less frequent, Senators were indirectly elected, the President was elected by an Electoral College, etc.

The first dozen years of the Constitution gave rise to a wealth of federalism issues.

The Bill of Rights quickly come into effect in 1791.

Madison initially opposed a bill of rights, under a structural rights protection theory, meaning that the Constitution already limited the power of the national government.

Based on a natural law approach to formal rights, holding that specifically enumerated rights will truncate other fundamental rights.
“Parchment barriers never work against majorities.” Madison was a big proponent of minority rights.

Madison changes his mind however, in response to Anti-Federalist agitation for a second constitutional convention. Madison pens twenty amendments, ten of which are eventually made into law.

The Judiciary Act of 1789 is passed, establishing lower federal courts in the States.
Chisholm v. Georgia (1793) holds that states can be sued by non-state citizens.

Eleventh Amendment comes in response in 1798, which grants states immunity from suit by non-state and foreign citizens.

Washington only serves two terms as President, thus setting the precedent for doing so.
Party electoral politics develop over the 1790s between the Federalists and Democrat-Republicans.

Election of 1796 leads to a Federalist President and Democratic-Republican Vice President.
Election of 1800 is the first transition of power in America and is peaceful, but leads to an electoral tie between Jefferson and Burr.
In response is the Twelfth Amendment, which gives one vote for the President and one vote for the Vice President.
The Alien & Sedition Acts, enacted in 1797, attempt to muzzle political opposition to the Federalist Party.

Naturalization Act: extends naturalization period to fourteen years, as immigrants tended to vote against the Federalists.
Alien Act: President could freely deport immigrants.
Sedition Act: criminalizing publishing false content about the law or the President (did not extent to the Vice President).

The Virginia and Kentucky Resolutions come in response, to attempt to lay out a theory of compact federalism.

Arguing that Congress only has power to pass laws enumerated in the Constitution.
States have the power to independently interpret the Constitution.

Interpreting the Constitution

There are two competing theories of Constitutional interpretation: originalism and non-originalism.
Originalism takes three forms: (1) original intent of the founders, (2) original understanding of the founders, and (3) original public meaning of the words.
Non-originalism posits that the meaning of the Constitution can depart from its 1787 meaning.
District of Columbia v. Heller (2008) is a case study in Constitutional interpretation.

The Court held the District of Columbia’s law outlawing handguns unconstitutional, 5-4, as the Second Amendment protects all citizens’ right to bear arms.
Justice SCALIA, writing for the majority, looks to original understanding to determine that the Second Amendment was not meant to extend only to militiamen.

Samuel Johnson’s dictionary defines “arms” as weapons not employed in a military capacity, and “keep” as to have.
Likewise, “bear arms” meant to carry weapons outside of a militia in the 18th Century.
State constitutions reserved rights for people to bear arms.

Justice STEVENS, writing in dissent, disagrees with SCALIA’s original understanding.

Nowhere does the Constitution mention that the right to bear arms is for personal defense.
“Bear arms” is an idiomatic expression that means “to bear war equipment” in Latin.
State constitutions lump the right to bear arms within military clauses.

Originalism has several arguments in its favor.

Originalism upholds a fixed meaning and avoids un-democratic decision-making by unelected judges.
Originalism can restrain the discretion of unelected judges.

But non-originalism has its proponents, as well.

Non-originalism is the only viable alternative.
Originalism produces problems of dead hand control of the past.
Separation of powers c

Justice Story’s Theory: Art. III vests all power in the Supreme Court; some courts must be empowered to hear all Art. III, sec. 2 cases. See Hunter’s Lessee, MCLO 4-5 supra.

However, Congress’s power over the lower federal courts is more clearly absolute.

Art. III has been interpreted as the ceiling of the lower federal courts’ power, but Congress does not have to grant the Constitutional ceiling.
Congress has limited the lower courts’ jurisdiction to federal questions and diversity suits.

28 U.S.C. § 1332 sets the minimum diversity suit damages amount at $75,000.
Federal questions were heard in state courts up until 1875, and damage minimums existed up until 1980.

In Sheldon v. Sill (1850), the Court determined that Congress has the power to create lower courts and has jurisdiction over such courts.

Congress’s power over the federal courts’ appellate jurisdiction is somewhat amorphous.

Congress’s power turns on the meaning of the Exceptions Clause in Art. III, sec. 2, cl. 2 (“. . . with such Exceptions, and under such Regulations as the Congress shall make.”).

Congress can grant concurrent jurisdiction to the lower federal courts of the four original jurisdiction cases in Art. III.
Congress can also limit the appellate jurisdiction of the Supreme Court, arguably.

In Ex Parte McCardle (1868), the Court interpreted the Exceptions Clause to mean Congress’s power extends to appellate review.

McCardle as a Southerner who was critical of reconstruction efforts. He was found guilty of crimes by a military tribunal, and appealed for a writ of habeas corpus.
Not wanting the Court do decide the constitutionality of the Military Reconstruction Act, Congress passed the Repealer Act over President Johnson’s veto, stripping the Court of jurisdiction over habeas corpus petitions.
While the Court found that it had to jurisdiction in the case, it left open the question of far Congress could strip its jurisdiction.

In Ex Parte Yerger (1869), the Court clarified this question by stating that the Repealer Act only applied to the Court’s appellate jurisdiction, but that the Court retained original jurisdiction per the Judicial Act of 1789.
Both cases show that the Court is worried about Congress’s political ability to strip its power.

Advisory Opinions

An advisory opinion is an abstract legal question that is not essential to deciding an actual case.
Jefferson’s letter to the Supreme Court was an early example of the Court’s restriction on advisory opinions. Jefferson asked the court for a legal answer to a treaty question. The Supreme Court refused to answer, noting they only respond to cases.
In Hayburn’s Case (1792), Congress passed a statute authorized the Circuit Courts to determine pension benefits. Because the Secretary of War had discretion over the courts’ decisions, the Supreme Court held the Circuit Courts’ determinations invalid as an advisory opinion to the Executive Branch.
In Muskrat v. United States (1911), Congress passed a statute, authorizing certain parties to sue the United States to determine the validity of an earlier statute. The Court refused to hear the case because the parties were not adversarial, and, thus, a ruling would be equivalent to an advisory opinion.
In Plaut v. Spendthrift (1995), a federal court dismissed a suit as beyond the Statute of Limitations; Congress responded with a statute extending the Statute of Limitations. The Supreme Court refused to hear the new cases because doing so would mean its previous judgment was not final, and thus was merely an advisory opinion.