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Constitutional Law I
St. Johns University School of Law
Salomone, Rosemary C.



FALL 2015




a. Timeline

1. 1776- Declaration of Independence

2. 1781- Hostilities with England Ceased

3. 1781- (February) Articles of Confederation ratified by 13 colonies

4. 1987- Constitution written

5. 1789- Constitution ratified

6. 1791- Bill of Rights added

b. Gaps in Articles of Confederation:

1. No government lacked power:

a. To tax

b. To regulate commerce

2. No executive authority

3. No national judicial authority

4. No Bill of Rights

c. 1787 Meeting in Philadelphia

1. Limited Change

a. To “devise further provisions” that were “necessary” to render the constitution “adequate to the exigencies of the Union”

2. End result:

a. An entirely new governing document changing the framework of the government

d. Any-Federalist Objections to the Proposed Constitution

1. Inconsistent with the underlying principles of republicanism

a. Removal of people from the political process (representative rather than direct democracy)

b. Creation of powerful and remote national government

c. New emphasis on commerce – would give rise to ambition and avarice and dissolution of communal bonds

e. Federalist Papers

1. Published in newspapers under pseudonym Publius during the ratification process in New York

2. Authors:

a. Alexander Hamilton

a. Federalist No. 78

i. “[I]n a government in which [the departments] are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous of the political rights of the constitution.”

ii. “The interpretation of the laws is proper and peculiar province of the courts”

iii. “If [the courts] should be disposed to exercise WILL instead of judgment, the consequence would equally be the substitution of their pleasure to that of the legislative body”

b. James Madison

c. John Jay

3. Propaganda pieces designed to persuade the ambivalent, but also classic work in theory of democracy and constitutionalism


a. Liberal Court:

1. Individual rights of accused

2. Strong Central government

3. Regulating the economy, healthcare, environment

b. Conservative Court:

1. Favors prosecution

2. Favors state rights

3. Disfavor economic regulation

c. Court cannot always be defined as conservative or liberal

1. Precedence plays major role

2. All rules are given the same weight

3. Public opinion shifts may be mirrored by the courts

a. Most people don’t want race to be a factor in admissions

b. Most people believe in the right to abortion but don’t want restrictions on it

d. Shifts:

1. Rehnquist replaced by Roberts: not a major shift, slightly less conservative

2. 2006: O’Connor replaced by Alito: major shift since O’Connor was a swing vote/middle ground but replaced by conservative and pushed Justice Stevens to the middle ground.

a. O’Connor – sensitive to state rights from working in Arizona state government

3. 2009: Souter was replaced by Sotomayor

4. 2010: Stevens replaced by Kagan (not a major change)

5. Justice Breyer is now the leader of the liberals

a. Not as liberal on religion issues (daughter is an Episcopalian priest)

b. More known for his dissents

c. Administrative law expert


a. Established the structure of the federal government and distributes power among the branches

1. Article I – Congress

2. Article II – President

3. Article III – Judiciary

b. Establishes the relationship between federal and state government

1. Tenth Amendment

c. Limits government’s powers and thereby protects individual’s rights

1. Enumerated rights instead of assuming all rights given (unless prohibited [plenary power])

2. Needed stronger central government than under the Articles of Confederation but still concerned about overwhelming power or monarchy/tyranny

a. Divided power among the branches of government to ensure none of the three would become too powerful

d. Advantage of the Constitution

1. A majority can change laws, while to amend the Constitution there must be a super majority of the states (makes it much harder to change) so that it would endure.

a. Debate over whether a static or living document

b. Unelected judges serving for life making constitutional determinations of decisions by elected representatives


a. Marbury v. Madison (1803) – exercise of the court’s power to review documents of the government

1. Facts: congress created judicial positions through Judiciary Act of 1789. Reduced Supreme Court from 6 to 5 so Jefferson couldn’t fill the position with an Anti-Federalist. Suspended 1802 Supreme Court term to confine the Supreme Court to what they could ultimately do. Adams (POTUS) appointed justices in the District of Columbia – he signed the commissions for the justices but the Comissions weren’t delivered before his term expired [Marbury was his SOS and one of the justices of peace appointed by Adams]. Jefferson became POTUS he ordered Madison to withhold the commissions. Marbury brought this suit to compel Madison to compel the commissions

2. Rule: the Supreme Court has the power to review the constitutionality of the congressional acts. This power allows the Supreme Court to declare those acts that fall outside the legislatures enumerated powers unconstitutional.

a. The Court has the power to review executive actions (that are not discretionary)

b. The Court has the power to review legislative acts

c. Congress may not add or diminish from Court’s original jurisdiction

d. The constitution can be read not only from the text itself but also from its overall structure

3. Framework of the decision (three questions)

a. Is there a right to Commission?

a. Yes. Signed by the President and sealed and delivered to Secretary of State so had the right to the position

b. Is there a remedy available for violation of this right?

a. Yes. If there is a legal right there is a legal remand

c. Should a writ of mandamus be issued from the Supreme Court?

a. Congress cannot expand the Court’s jurisdiction

b. The Constitution states “the Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction.”

i. If it was intended to be left in the discretion of the Legislature to apportion judicial power between the Supreme courts and other courts – then this section means nothing and is superfluous.

4. The Supreme Court doesn’t have original jurisdiction to issue writs of mandamus

a. Court’s power to issue writ of mandamus (order from the

Congress may from time to time ordain and establish

b. Section 2. The judicial power shall extend to all Cases, in Law and equity, arising under Constitution, the laws of the United States and Treaties made

c. In all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all the other Cases before mentioned the Supreme Court shall have appellate Jurisdiction, both as law and fact, and such exceptions, and under such Regulations as the Congress shall make.

2. Cohens v. Virigina (1821) (Chief Justice Marshall) authority of Supreme Court to review decisions of state courts in criminal cases in which the State was a party.

a. Facts: Cohen brothers convicted of unlawful sale of District of Columbia lottery tickets in violation of Virginia law. They argued that an act of Congress authorized the DC government to establish a lottery

b. Holding: conviction upheld

c. Reasoning: Statute didn’t authorize sales outside the boundaries of DC

d. Rule: The Supreme Court has authority to review decisions of state courts in criminal cases in which the state was a party.

c. Judicial Exclusivity in Constitutional Interpretation

1. Questions Elided in Marbury v. Madison

a. Is the Constitution the supreme law of the land?

b. Are the Courts the ultimate or exclusive interpreters of the Constitution, or do other branches of government share that authority

a. Yes

2. Support for Broad View of Judicial Authority (courts are the ultimate, supreme interpreters of the Constitution)

a. Marshall – “it is emphatically the province and duty of the judicial department to say what the law is”

b. Hamilton – “the interpretation of the law is the proper and peculiar province of the courts

c. Cooper v. Aaron (1958) – aftermath of Brown v. Board of Education (1954)

d. Cooper v. Aaron (1958) (unanimous decision)

1. District Court – relying on Brown v. Bd of Educ. Entered orders requiring desegregation of Little Rock, Arkansas public schools. School district sought to comply with the decree. Gov. Faubus called out the National Guard. District Court issued an injunction against Governor. National Guard withdrew. President Eisnhower – sent federal troops to oversee integration of the schools. School district sought postponement of desegregation plan

2. Disctrict Court granted postponement finding situation “intolerable”; Court of Appeals reversed and SCOTUS affirmed.

e. Are Supreme Court Interpretations Binding on Congress?

1. Dickerson v. United States (2000) – Congress cannot pass a law that overrules a constitutional interpretation of the Court

a. Miranda v. Arizona (1966)

b. 18 U.S.C. §3501

c. “Miranda is a constitutional decision that Congress may not supersede”