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Constitutional Law I
South Texas College of Law Houston
Gershowitz, Adam M.

Constitutional Law

I. The Constitution and the Courts: The Judicial Function in Constitutional Cases

A. The Constitution

1. The Constitution of the United States of America

Topic Class Notes


Article I, Section 3, Clause 2: Establishes rotation of Senators (staggers the 6-year term across three groups–leading to elections every two years)
Article I, Section 3, Clause 3: Senators must be 30, a citizen for 9 years, and an inhabitant of the state where elected.
Article I, Section 3, Clause 4: Role of Vice President
Article I, Section 6, Clause 1: Immunity of senators and representatives against arrest during duties (except for treason, felony and breach of peace)
Article I, Section 7, Clause 2: Presidential veto power
Article I, Section 8, Clause 11: Congressional power to declare war
Article I, Section 8, Clause 3: Congressional power to regulate commerce (The most significant power of Congress)
Article I, Section 8, Clause 18: Congressional power to make “necessary and proper” laws
Article I, Section 9, Clause 8: No foreign titles for U.S. officers (without consent of Congress)

II.1.3. Electors of a state cannot vote for a vice president and president from the same state.

Article III: Establishes judicial branch–one supreme court and any inferior courts that Congress may establish. Federal judges have office for life (during “good behavior”).

Amendment I. Congress shall make no law… (religion, speech, etc.)

Sum it all up: Most of these subjects will not be discussed for the rest of the semester. However, all these points raise a point–how are we supposed to interpret the Constitution? Do we discard things that don’t make sense and apply modern sensibilities? Do we read it literally and require amendments to effect change?

B. Judicial Review

1. Legitimacy of Judicial Review

Marbury v. Madison

Case Brief

Facts: Marbury, the plaintiff, was appointed as a justice of the peace in the District of Columbia (and confirmed by the Senate). Madison, the defendant, was the incoming Secretary of State (new administration, under Jefferson–different political party than previous administration, Adams), and was responsible for delivering Marbury’s commission. Jefferson directed Madison to withhold several commissions, including Marbury’s (b/c he didn’t want to give judgeships to the people confirmed by A

holding office, under the authority of the United States.”
(a) The question then becomes, “Is the Judiciary Act of 1789 constitutional?” (i.e., does it expand the powers granted by III.2.2?)
– According to III.2.2, the Supreme Court has original jurisdiction over ambassadors, public Ministers and Consuls
– In all other cases, the Supreme Court has only appellate jurisdiction (which would require Marbury to start the case below– delaying his judgeship, which is of limited time to begin with [which is why he brought the case directly in the Supreme Court]).
– According to the Judiciary Act of 1789, Marbury can be given a mandamus. According to III.2.2, he can’t.
– Thus, the Judiciary Act of 1789 is in conflict with the Constitution and, accordingly, unconstitutional.

Outcome: Marbury does not get his commission b/c court can’t issue a mandamus for him (no original jurisdiction).

2. Congressional Control of Judicial Review by the Federal Courts