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Constitutional Law I
Santa Clara University School of Law
Joondeph, Bradley W.

Constitutional Law
2 broad areas:
1)      Powers exercised by the government
2)      Individual liberties
Powers of Government is what we are looking at first
3 areas: executive, legislative and judicial
I.                    Plan of government
A.      National govt with 3 branches
B.      Allocation of powers between Fed and states
a.       Carves out powers for Fed govt
b.      Identifies proper subject for those powers
c.       Puts specific limitations on what those powers are and what the states can do
d.      Reserves all the power left over to the states and the people respectively
C.      2 main characteristics
a.       Separation of powers at federal level
                                                                                       i.      Separation at depts. That creates checks and balances
1.       Prevents any one part of govt. from becoming too powerful
b.      Federalism
                                                                                       i.      Framers wanted national unity, effective national system, etc.
                                                                                     ii.      They wanted the benefits of diversity and decentralization as well
                                                                                    iii.      States needed to be reassured of their existence
                                                                                   iv.      Constitution embodies such a system – simultaneously have a national govt and stte govts…two systems of sovereignty
*** In looking at any question of governmental action on an exam, consider first whether the particular govt. branch or body taking the action is constitutionally permitted to do so
Power of the Federal Courts
I.                    The Supreme Court
a.       Fed. Courts and ultimately SC are charged with determining what the Constitution means….exercise Power of Judicial Review (key to everything we will talk about!)
b.      Power of Judicial Review
                                                               i.      The power of the courts to declare acts of government and government actors as unconstitutional…that is void or invalid…according to the Court’s interpretation of what the Con. means or requires
                                                             ii.      If SC declares an act of another govt body uncon., it is invalid or ineffect…will be law of the land unless:
1.       Court changes its mind OR
2.       There is a constitutional amendment (very rare…only 27 exist…17 of don’t count Bill of Rights)
                                                            iii.      Court’s interpretation will prevail, and acts from leg. Or exec. Cannot change things….
                                                           iv.      The last word on the matter comes from the Court
II.                  Where does this power come from? How established?
a.       Regular suspects to determine what Con. means
                                                               i.      Look at the text – words or language of the cont.
                                                             ii.      History – surrounding the adoption of the text
                                                            iii.      Structure of con. as a whole
                                                           iv.      Core purposes or policies underlying a particular provision
                                                             v.      Judicial precedent (if it exists)
b.      No reference to judicial review in con. itself…but established by Court itself in famous case – Marbury v. Madison
c.       Marbury v. Madison
                                                               i.      Courts decided that they do indeed have this power of Judicial Review based on 2 fundamental propositions:
1.       Nature of the Con. itself – superior and binding
a.       Con. is fundamental law – superior to and prevails over ordinary legislation and governmental acts
b.      A written con. and meant to bind actors by its requirements
2.       Constitution is a species of law – a kind of law
a.       The province and the duties of federal court and SC to say what the Con. is and what it requires
                                                             ii.      Case
1.       Marbury confirmed as justice of the piece
2.       Pres. Jefferson refused to have doc sent to him
3.       Filed lawsuit directly to SC, not a lower court
a.       Did this based on Judiciary Act of 1789 – statute that Congress passed
                                                                                                                                       i.      Giving SC original or trial type Jx for his type of case
                                                                                                                                     ii.      SC also read the statute as giving original trial type Jx in his type of case
                                                                                                                                    iii.      However, SC then read Article III of con. – creates SC and identifies the type of cases it can hear, including those as original trial-type Jx…Article III said that Con. did NOT permit them to hear such a case
1.       Conflict between statute and requirements of Article III of Const.

                                 ii.      It’s the QUESTION, not the COURT in which claim originates that gives SC power to review
                                                           iv.      Fundamental differences on how this power should be exercised
1.       Those who view Court’s role as activist
a.       Not hesitant about SCs exercise for JR – three arguments for the expansiveness of JR
                                                                                                                                       i.      Court insolated from politics…no political motivations
                                                                                                                                     ii.      Justices are well-suited to interpret Con…mode of operation is analysis and principle
                                                                                                                                    iii.      Court is least dangerous branch…must be some branch that serves as umpire…best to leave that job to party insolated from politics and use reason, but one least likely to hurt us – no $, no army; only has own legitimacy and acceptance by people
2.       Those that see a restrained role
a.       Yes, need an umpire, but JR should only be used when absolutely necessary, and even then, Court should decide cases as narrowly as possible
b.      Sees insulation of judges as a liability, not a plus
                                                                                                                                       i.      Since not elected, if declare acts of congress unconst., they are thwarting the will of the people…should only act where absolutely necessary
                                                                                                                                     ii.      Says better that most judgments in society be made by legislative process and democratic majorities
                                                                                                                                    iii.      Views Court as counter-majoritarian…counters majority will