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

Constitutional Law, Review Sheet


Weaknesses of Articles of Confederation à Constitutional Convention
Creation of national government with power to act over individual citizens
Ratification of a written constitution (contra, e.g., England): significance?
Republican government (“We the People”) of limited powers
Structurally balanced between three coordinate branches (separation of powers) and the states (federalism)
Article I (Legislature), Article II (Executive), Article III (Judiciary). Compare extent of enumeration of powers in each: significance?
Why divide power between three branches?
Why maintain two levels of government?
Article VI, the Supremacy Clause: significance?
Article V, amendment process: significance?
Which branch would be the “final” arbiter of constitutional meaning?

The Judicial Power

Judicial Review

Delineation of judicial power in Article III
Judicial review (discussion in Article III?)
Marbury v. Madison (1803): significance? A “judicial coup d’etát”?
“It is emphatically the province and the duty of the judicial department to say what the law is.”
Historical context of Marbury (Federalists vs. Republicans, Adams vs. Jefferson, meaning of the conflict)
Chief Justice John Marshall (Federalist): significance of his decisions for the power of the Court and for the understanding of national powers?
Sources for judicial review in Marbury (text, history, structure)
Arguments for and against judicial review in a democracy (see, e.g., the Federalist 78)
For: insulation, weakness, expertise
Against: political influence, strength, judicial discretion
Counter-majoritarian difficulty
Significance of Article V for thinking about scope of judicial review
Judicial exclusivity?
Cooper v. Aaron (1958). A correct reading of Marbury?
“Constitutional pluralism”: what would it involve? reasons to be skeptical? (see Presidential statements, p. 21-22).
Significance of political question doctrine for debate about constitutional pluralism (e.g., the executive and foreign policy)

Review of state court judgments
Constitutional support for power over state courts vs. over coordinate branches
Martin v. Hunter’s Lessee (1816)
Cohens v. Virginia (1821)
Policy reasons behind the power to review state court judgments
Adequate and independent state grounds doctrine. Policy reasons behind?
Question: What would be so bad about having pluralism in constitutional interpretation (here pluralism not among the branches but among the states)? Why not view state judges as capable of adhering to their own oaths to abide by the Constitution, including the Supremacy Clause?

Theories of Constitutional Interpretation

Theories of constitutional interpretation: originalism vs. non-originalism (aka interpretivism and non-interpretivism).
Textual arguments
Structural arguments
Historical arguments
Doctrinal, precedent-based arguments
Prudence/balancing/policy arguments
Moral reasoning
Example in Second Amendment debate (discussed in class)

Political limits on Constitutional Adjudication

Political controls: amendment, appointment, impeachment
Unconstitutional amendments?
Limits of political control in appointment (e.g., Justice Souter).
Impeachment, meaning of high crimes and misdemeanors (significance of ambiguity)

Congressional control over jurisdiction of federal courts (basis? does the Constitution demand the creation of lower federal courts?)
External and internal limits on control of appellate jurisdiction
“Jurisdiction stripping”
Ex parte McCardle (1869). Question: Could Congress pass a law preventing federal courts, the Supreme Court, from hearing any state laws concerning mandatory prayer in public schools?   Argue from text, policy, case law.

Justiciability doctrines

Who, what, when questions
Sources of justiciaibility doctrines: text

most compelling? What sources are used: textual, structural, prudential?
Goldwater v. Carter (1979) (presidential treaty abrogation)
Can we reconcile these and other cases? how do the Justices approach their decisions in terms of the various theories of constitutional interpretation?
Question: If the Senate had convicted President Clinton, should there have been the opportunity for judicial review? What if President Clinton argued that his activities weren’t “high crimes and misdemeanors”? What if he objected to closed deliberations?

National Powers, Local Activities: Article I and Federalism

McCulloch v. Maryland: Origins, Themes

Article I, 8: nature of enumerated powers
“all legislative powers herein granted”: significance?
Federal action presumptively invalid, state action presumptively valid
But note: Article VI, supremacy clause
Differences between 1787 constitution and Articles of Confederation?
Federalism: concept. Justifications (see, e.g., Federalist 51). Values of federalism (see e.g., pp. 121-124).
Comparative advantages of state and federal government? For example:
State: efficiency, laboratories of experiment, republicanism
Federal: Provide public goods that transcend boundaries, cross-state regulation, prevention of negative externalities (e.g., pollution), prevention of races to bottom, challenge tyrannies of local majorities
Which substantively better (state or federal), and who polices the divide (Court or political process)? Link between national power and judicial role.