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Constitutional Law I
South Texas College of Law Houston
Blackman, Joshua Michael

Constitutional Law – Prof. Josh Blackman Fall 2015


Declaration of Independence— Wanting to be free from the Tyranny of King George the colonies of the US wrote a declaratory statement of grievances that listed the reasons they New world waned to separate from the old world. The declaration was an act of high treason and had the US not won the American Revolution (5-6 year bloody war) the leaders would have been hung for this act.

Articles of Confederation – NINE Articles: Under the article of Federation decisions had to have a 9/13 vote to pass. To change the charter there had to be a total of 13. The Constitution would change this. These articles do not have regulations or rules of standing in the federal court and it does not establish a tax system so there was no means of US currency throughout the Union.

US Constitution – Established in 1787. 13 Delegates from the each colony came together to create the Constitution during the months long convention.

Federalist Papers

In 1787, after the ratification of the Constitution editorials were marketed to the other colonies in a marketing effort to get others to agree with the ratification of the Constitution.

· No. 51- James Madison – Sets the groundwork for the Separation of Powers: “Ambition must be made to counteract ambition” Addresses the separation of power. Each branch should have a will of its own and no department should have complete agency over another. Checks & Balances. If men were Angels there would be no need for a governmental system. Power checks power because we cannot expect people to control themselves.”

· No. 78- Andrew Hamilton – This addresses the importance of independence between the judiciary and establishes rationale behind the permanent tenure of Supreme Court justices. “The Judiciary does not command the sword or the purse” This means that they have no power to address budget or appropriations or military related issues.

Judicial Supremacy: Letters from Jefferson & Madison

Jefferson believed that a judicial supremacy would create a despotic branch of the government ultimately leading to a tyrannical judicial branch. In his letter to Abigail Adams he stated that the instruments meant that its coordinate branches should be checks on each other. But the opinion to give the judges the right to decide what laws are constitutional is despotic.

Jefferson also wrote to William Charles Jarvis, stating that it is the part of a good judge to enlarge his jurisdiction and ultimately the Supreme Court would try to expand its limited powers. Jefferson believed that because SCOTUS justices did not have to answer to the public it would be a dangerous step towards an oligarchy society.

Madison believed that because the nature of the justice and the skill involved it was there expertise to be the expositors of the constitution and interpretation of federal law.

· No. 10- The Federalist No. 10 focuses on how to curb the issue of faction within society in which entities or people create sub-sections based on ideologies factions could lead to oppression of others who are not within the majority group. How can this be fixed?

A faction is essentially an interest group. A group or sect of people with similar ideologies and that have self-interest.

There are TWO ways of curing the mischief of factions:

1. Removing its causes

a. Destroying the liberty which is essential to its existence

b. Giving every citizen the same opinions, the same passions and same interests

It is near impossible to remove the causes of factions because doing so would mean creating a society in which al think and act alike. This is unlikely because self-interest and selfishness is inherent in the nature of men.

2. Controlling its effects through divided government– Madison said to use diversity of thought to have ambition check ambition. State government is best suited to address the needs of the domestic needs of the state citizens. Those things that are not enumerated in the constitution is reserved for the state and its people.

· No. 67- In Federalist No. 67, Alexander Hamilton writes that the appointment power is ordinarily confined jointly to the President and the Senate, but, considering it unlikely that the Senate would remain continuously in session, the Constitution allows the President to make temporary appointments when the Senate is in recess.

· No. 84- Alexander Hamilton: Constitution is itself in every rational sense and to every useful purpose is a Bill of Rights…” The powers not delegated to the US by the constitution are reserved to the States respectively, or to the people.

· No. 81- Alexander Hamilton: “It is inherent in the nature of sovereignty not to be amendable to the suit of an individual without its consent.”—Sovereign Immunity

1793 – Chisholm v. Georgia – Seriatim Court – Enforcement Clause

Breach of War-supplies contract in which Chisholm the P wanted to sue in federal court under diversity jurisdiction (Art. III) Because he believed that he would not have a fair trial in the state of GA. Georgia argues that they had sovereign immunity.

Holding: Court ruled that P had diversity because he was from South Carolina and GA did not have sovereign immunity

Concurring Opinions:

· Blair—The constitution of the US is the only fountain for which I shall draw; the only authority to which I shall appeal.

· Wilson— People have sovereignty not states.

· Cushing—Issue falls under the constitution and there is sovereignty.

· Jay— We do not have a nation of sovereign states

Iredell Dissent: A person cannot sue the state in federal court without the state’s consent. Courts can only act where they have jurisdiction.

1. Congress has provided no new law in this case and refers to old law

2. There are no principles of old law. It should be address through precedent or analogy (analogous cases)

3. Constitution carried out by acts of legislation, appointing courts and prescribing their methods of proceeding.


1803 – Marbury v. Madison – CJ Marshall – Judicial Supremacy

1.) First Issue: Has applicant a right to the commission he demands? Yes Marbury had a vested legal right– because it was signed by the President and sealed by the Secretary of State, which at the point is the last act, and he is in fact a commission justice of peace.

• A political question– courts do not get involved in these type of questions. The President has the discretion of who to appoint or not.

2.) Second Issue: Does Marbury have a right to remedy for the commission? Yes, because he has a consequent right to the commission; a refusal to deliver which, is a plain violation of that right, for which the law of his country afford him a remedy.

3.) Third issue: Whether the jurisdiction in the case can provide that right to the remedy of a writ to mandamus? No, because the SCOTUS was not the proper original jurisdiction. Congress could not augment the original jurisdiction and the only way to allow for more power would be to amend the constitution.

“The powers of the legislature are defined and limited and that those limits may not be mistaken, or forgotten, the constitution is written”

The ultimate holding of the case is that th

ly that the holding went against the Constitution. Essentially Taney went out of his way to invalidate the Missouri Compromise and 30 years of case law that supported the idea that once a slave goes to a Freeland he is to be considered free. Taney basically only focuses on the question of if Dred Scott is a Missouri citizen. Taney thus interprets the Fugitive slave clause and the Migration & Importation clauses as authority to conclude that slaves are not and cannot ever be considered US citizens. Basically Taney holding was so narrow it completely stripped away a slave’s ability for a slave or a free slave to file suit against the state.

Justice Curtis dissent- Curtis argues that there is noting in the constitution that states a slave is not a citizen and that because numerous states and instances show that enslaved people were citizens and that no law had the power to disenfranchise those born on US soil from the privileges of citizenship.

1873 – Railroad Company v. Brown – CJ Davis – EPC/Segregation

Case in which statue enacted prohibited railroads to segregate people on the basis of race. A woman of color was asked to go to a section specifically for people of color and was restricted from sitting with whites. She files suit but the Court held that no injustice occurred because the railroad company did not abridge her right to ride the train and she was provided with adequate accommodations even if she was separated. Court argues no harmed occurred. Separate but equal. Please keep in mind that the 14th amendment was NOT ratified at this time.

1873 – Slaughterhouse Cases – CJ Miller- Privilege or Immunities Clause

Civil Rights Act of 1866 was debated and during that time persons had a right to contract (to earn an honest wage and work within job they desire) State should not restrict this right.

Two ways of addressing equal protection:

Substantive Due Process

Series of enumerated and un-enumerated rights under the constitution must be upheld and unabridged.

Privilege or Immunities Clause

State should not be able to take away rights. POI is not something that is addressed in a lot of case law.

Think: Is a monopoly or exclusive right given to one person to the exclusion of all others, to keep slaughter-houses, in a district of nearly twelve hundred square miles for the supply of meat for large city, a reasonable regulation of that employment which the legislature has a right to impose?

1873 – Bradwell v. Illinois – CJ Miller – Privileges & Immunities Clause

Supreme Court case about a woman who was educated as an apprentice to her lawyer husband. In study of law and wanted to sit for the state bar. At the time there was a law prohibiting women to be admitted to the bar.

Looking at the provision she should argue Equal Protection Clause

The Court affirmed the denial of the application for a license to practice law.