Constitutional Law Barrett Fall 2016
Cases
Clauses/Laws/Const
Con Law Outline:
Background: How did the Constitution Come About?
The Articles of Confederation didn’t work because unanimity wasn’t realistic, the economies of the states varied greatly, slave labor agriculture v. merchants.
The A of C was a one branch national gov’t with states being the most powerful so the Federal government was weak and basically useless
The federal gov’t couldn’t tax or regulate interstate commerce
Lacked substantial authority within its own right
State power was stronger than national government
Needed uniformity—states needs are too different, limited and prevent unanimity—need centralized power without going too far
During the Philadelphia Convention in 1787, the states were supposed to re-evaluate the A of C, but instead they scrapped it and created the U.S. Constitution.
Federalism
Individual Rights—designed to promote liberty
Imperfect Congruence of the Constitution with Justice
Imperfection—permits wide diversity of answers
The Federalists and the Anti-Federalists:
The Federalists: on the Bill of Rights
Against a B of R b/c the people are nothing to fear
This is the Federalist No. 84: said the B of R was unnecessary, the powers of this national government are in the people, so there’s no need for national protections
Makes an arg that it would even be dangerous:
Liberty of press- the Constitution doesn’t give congress an enumerated power to limit it, so why bring something up that wasn’t there to begin with?
Bill of Rights
Only applies to the federal government (Barron)
First 10 Amendments
Arguments over necessity
Federalists v. Antifederalists
Anti-Federalists—opposed Constitution because there were no individual rights
Federalist 84 (Hamilton)—Bill of Rights
BORs historically between a king and the subject
Outlined powers are reserved and not surrendered
Do not surrender rights to government, no enumerated powers to suppress
It would imply that the government had those powers (dangerous)
Federalists: Rights are implicit and Implied
Anti-Federalists: Rights should be specified/explicit
The Anti-Federalists: on the Bill of rights- opposed the ratification
Herbert Storing and the 3 kinds of rights that were stressed:
The usual common law procedural rights in criminal prosecutions
Liberty of conscience
Liberty of press- need it to make sure it isn’t limited
Said needed a Bill of Rights b/c otherwise the necessary and proper clause would sweep away all of the peoples’ liberties, they don’t want too much gov’t, they’ve had that before under the King
B of R eventually gets passed, but Hamilton might have had the better argument, the B of R are just “gas” (thoughts, paper, promises) UNLESS the people back it up, public opinion is the only way that these things will be meaningful
Baron v. Baltimore: Did the Bill of Rights bind the states?
The 5th amendment didn’t specifically say “states shall not” unless specifically said states can’t, it applied to federal gov’t
Initially the B of R provisions protecting individual liberties initially were deemed to apply only to the federal government
But, the 14th amendment does the work for the states. Incorporated through this, but it wasn’t ratified at the time of this case
Significance of Marshall’s opinion:
Slavery was an institution of property
Intra-textual arguments, read the text, precedent
Methods of Constitutional Interpretation: (5)
Text-context
Formalist:
Think Scalia- “plain meaning of text”à textualism
Interpretivism/originalism
Non-interpretivism/nonoriginalism
Structural: internal logic
Historical Background:
Intentions underlying the text
Precedent Practice: previous interpretations
Policy: consequence focused
Originalism:
Original intent: the framers intentions
Problem: You need to determine who the true framers were and you need the right materials but this is almost impossible b/c the thoughts and writings of the true founders were never set down in one place (they were scattered everywhere and in fragments)
Original meaning: what did the actual words mean at the time
Originalism: “judges deciding constitutional issues should confine themselves to enforcing norms that are stated or clearly implicit in the written Constitution”
Believe the Court should find a right to exist in the Const only if it’s explicitly stated in the text or was clearly intended by the framers
If the const is silent, it’s for the legislature, unconstrained by the courts to decide
The meaning of a const provision was set when it was adopted, and can only be changed by amendment
And that’s the only way for constitutional evolution
Nonoriginalism: the “contrary view that courts should go beyond that set of references and enforce norms that cannot be discovered within the four corners of the document”
Believe that the Court can interpret the Const to protect rights that aren’t expressly stated or clearly intended
Believe the const can evolve by amend and interpretation
Should evolve by interpretation
The disagreement b/w the two is basically over how the Constitution should evolve
Historical Argument: originalism v. History
History:
Very similar to Non-interpretivists, it looks at history as running film footage and argues that the best argument for Constitutional interpretation is to look at the current
s the ability to ordain and establish lower courts)
Power or judicial review: necessary to keep the people sovereign
Judges do not create law: just interpret
Marbury v. Madison:
Federalist congress had just passed the Judiciary Act of 1801—Federalists/Adams lame duck opportunity to stack circuits with their people. Adams appoints secretary of state Marshall to be justice of the peace. Is this allowed? Yes—constitution does not prohibit and we’ve seen it done before—precedent and practice
Senate confirms Marbury and others after rushed delivery; path of delivery goes from president to congress to secretary of state—has act of delivering the legislation creating ministry role of secretary of state.
Secretary of state is supposed to sign it and seal it, then deliver it to the judge who was appointed. Madison never delivers it. Marbury shows up at work without commission—denied office by Jefferson admin.
Three issues in Marbury:
(1) Necessary and Proper Clause
(2) Is it justiciable?
Political Question Doctrine: political questions aren’t fit for judiciary to decide an act of political discretion
(3) what authority is the Court using to enact the writ?
Judiciary Act of 1789- gives the court the power to issue writs of mandamus, legislation affecting how courts do their work, can congress give court jurisdiction? Look to Art 3: Congress can create lower court’s b/c there’s an enumerated power in the constitution; look at original and appellate jurisdiction
Original jurisdiction: includes writs of mandamus
The first court you go to has original jurisdiction, and here they have original jurisdiction b/c this is the first court
In some instances, the court has original
Art 3 Sec 2 Cl 2- original jurisdiction extends to all enumerated areas
“state is a party” doesn’t work here because the state in the text apply to the states of the US NOT secretary of stateà textualism
b/c the judiciary act allows SC to expand original jurisdiction it goes above the powers the constitution gives the SC
three types of original jurisdiction, the rest of are appellate
Appellate: reviewing lower court decisions- what we’re generally used to looking at in SC opinions
