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Constitutional Law I
South Texas College of Law Houston
Treece, T. Gerald

Professor Treece
Con Law
Spring 2011
The Origins, Functions, & Purposes of the Constitution
What Does the Constitution Do?
It establishes our National Government and allocates their responsibility among these branches
Separation of Powers, System of checks and balances
It allocates federalism authority among States and the Federal Government. (this protects individual rights and liberties) NOTE:  It is the government who violates our individual rights, not individuals.
The Constitution protects individual rights through the Bill of Rights.  PROF THINKS 14TH AMENDMENT IS THE MOST IMPORTANT.
Constitutional Interpretation
Types of Interpretivists
Noninterpretivists – They assert that courts are not limited to constitutional text, but may import wholly extraconstitutional norms as a source of constitutional decision.
Interpretivists – Insist that the only legitimate form of judicial review is interpretation of the written text of the Constitution. 
Methods of Constitutional Interpretation
The Textual Method
Problems:  sometimes simple textual interpretation will not suffice. EX: What is Due Process?; The Text is old; Words are susceptible to different meanings; Text is not exhaustive; Text is not self-defining
The Historical Argument
Original Intent – Determining the original intent of the drafters of the Constitution
Problems:  It evolves over time; Whose original intent counts?; what about people who weren't included (i.e. women, blacks)
Original Meaning – Establishing the original meaning of the text at the time it was written.
The “Vectors” of History – We examine the how our Constitutional understanding has changed over time.  (how how the Constitution been interpreted at certain times…)(very important to Prof.)
Structural Arguments – These involve claims that a particular principle or practical result is implicit in the structures of government and the relationships that are created by the Constitution among citizens and governments. (in other words, we use structural interpretation to infer from the Articles that the Constitution created the power of checks and balances between the 3 Branches) (it's what the text shows but doesn't say) (EX:  When determining what powers are granted to the Commander in Chief, we can look at the powers that are given to the Congress and in turn it will help us infer what powers are bestowed upon the President) (EX: Congress cannot compel the courts to reopen final judgments) 
Precedential Arguments – asserts principles derived from precedent and sometimes judicial or academic commentary on precedent (i.e. stare decisis)
Problems:  unprecedented issues arise; precedents are also overturned; there is also reliance interest, so overturning precedents can be difficult; facts can change since original ruling; related laws; does the rule work?
National Values Arguments – there are national values deeply linked to us and define who we are even though they may not be in the text of the Constitution; rooted in widely shared cultural norms (i.e. moral concepts of justice, theories of human autonomy, and cultural assumptions about fairness)
Prudential Arguments – advancing particular doctrines according to the practical wisdom of using the courts in a particular way.  What are the Practical Effects of taking the case??? This is what the Supreme Court typically uses to decide whether or not to take a case. (EX:  The Court will not take a case where a plaintiff wants them to rule a War is unconstitutional because of the practical effects of that decision
The Scope and Limitations of Judicial Review
The Authority for Federal Judicial Review
Marbury v. Madison
The holding of the case is that section 13 of the Judiciary Act (which authorized the Supreme Court to issue writs of mandamus) is unconstitutional under Article III, Section 2.  As a result, since the statute that gives us jurisdiction if unconstitutional, we have no jurisdiction.  This was also a big case, because the big issue was: If Marbury had a right, and that right had been violated, do the laws of his country afford him a remedy.  The issue then became could the Supreme Court order the Executive Branch what to do?  B/c if they ordered James Madison to turn over the paper to Marbury, b/c he was Sec. of State and under orders from the President not to turn it over, then the Supreme Court was essentially deciding if they could tell the President what to do.
Marshall, using a structural argument to support his view of the dichotomy of duties of the executive branch, went on to distinguish the duties of the Executive Branch that are: 1) political in nature, or 2) Ministerial duties
Political Acts (Discretionary Acts) – These are things like Commander in Chief decisions, when/when not to veto a bill, when to execute judicial appointments.
Ministerial Duties – There is no discretion….they owe a specific duty to an individual. (EX:  Ordering the executive branch to turn over a list of veterans who might be entitled to benefits)
Marshall's Reasons for Judicial Review (PAGE 15-17)
Constitutional Regulations (it's not just idealistic, it's regulatory)
Judicial Oath – Marshall says the Supreme Court Justices take an oath to follow and uphold the Constitution, so they should be given the right of judicial review.
Supremacy Clause – Says the Constitution and the Laws of the U.S. which shall be made in pursuance thereof…shall be the supreme Law of the Land.  This suggests that state judges may decide whether or not a federal statute comports w/ the Constitution.  Since the Founders presumably did not intend to give state judges the last word as to the validity of federal laws, the Founders must have expected the SC in its appellate capacity to review a state court's ruling as to the constitutionality of federal laws.
Article III's grant of judicial power over cases arising under the Constitution
Constitution is regulatory; it provides meaningful restrictions in gov't.
Congress can’t increase jurisdiction of the SC beyond the restrictions of Article III
The SC can compel the Executive
Judicial Review of State Court Judgments
The SC can review the constitutionality of the acts of the states
Framers Intent – The SC may review state court decisions involving questions of federal law
Martin v. Hunter's Lessee – SC may review state judgments involving issues of federal law.  The Framers intended this so as to ensure the supremacy and the uniformity of federal law.  Otherwise, state attachments, interests, prejudices, etc… might cause state judges to shirk their duty under the Supremacy Clause; this would lead to non-uniformity of federal law among the states
Cohens v. Virginia – Again upheld the ability of the SC to review state court judgments of federal law so as to ensure uniformity and harmony.
Federalist Papers – Also suggested the Framers intended SC review of state judgments concerning federal law.
Justice Story also made a structural argument that the Const. did not require that lower federal courts be created, so this must have meant that the SC was able to review state court judgments.  (otherwise the SC would not have had anything to review)
PROF:  Many felt the Supreme Court's decision to exercise authority over State court decisions was more important than Federal Judicial review b/c it secured Uniformity and insuring the States' weren't violating individual rights

al legislature (this was shown in Marbury v. Madison when the court decided that the judiciary act was unconstitutional because it expanded the original jurisdiction of the supreme court.)
                                                    iii.            They also control over the federal executive branch. In US v. Nixon, the court ordered Nixon to hand over the tapes, after he tried to plead his absolute immunity due to his executive position)
                                                    iv.            It also controls over the state leg. And exec. Branches (Cooper v Aaron, in which the Arkansas state govt. thought they did not have to comply with the Brown v Board decision, they were wrong
                                                      v.            It controls over the state supreme courts (martin v hunters lessee)
d.      Limitations on Federal Judicial Power:  Political Controls and Congressional Power to Control Jurisdiction
                                                        i.            Direct Political Controls
1.      Amendments – These are rare.  Only 33 have been adopted by Congress, of which only 27 have been ratified by the states.  Further, only four of those amendments were intended to overrule some specific constitutional decision of the Supreme Court.  You need 2/3 of both Houses of Congress, or 2/3 of the states to call for a constitutional convention to adopt the amendment.  Then 3/4 of the state legislatures most ratify the Amendment to make it a part of the Constitution.
2.      Appointments – 1 in 4 Supreme Court appointees do not make it.  A Supreme Court Justice has never been impeached and removed from office.
3.      Impeachment – This is next to impossible to do b/c of a Judge's political reasons.
4.      Changing the Size of the Court – Has only been used a few times.  Most recently FDR considered it but Congress decided he couldn't.
                                                      ii.            Congressional Power to Control the Court's Jurisdiction of the Federal Courts
1.      Congressional Power to Control the Jurisdiction of the Federal Courts
a.       US v. Klein – Congress cannot create a law that dictates how an individual case is going to be decided by the Judiciary.  This would be a clear breach of the “separation of powers” doctrine in the Constitution.
2.      Power to Establish Federal Courts
3.      Exceptions to and Regulations of SC Appellate Jurisdiction – Article II, Section 2 endows the SC with appellate jurisdiction of all cases within the federal judicial power “with exceptions, and under such Regulations as the Congress shall make.”
a.       Ex Parte McCardle – Congress can, in certain situations, both give and take away jurisdiction from the SC with respect to certain issues
b.      External Limitations – No connection to Article III and the judicial power.  They are general constitutional limits on government action (EX:  Due Process, EP guarantees).  They are “external” b/c they are, in this sense, outside of Article III
c.       Internal Limitations – Limits on Congress may be implicit in the grant of judicial power contained in Article III.  These limits are “internal limits” b/c they are implicit in, or inside of, the Article III grant of the federal judicial power to the federal courts