Con Law DeGirolami Fall 2016
Themes of the Course:
Conflict of Government Powers and Individuals Rights
Inter Branch Conflicts
Conflicts with Federalism (state v. national government)
Who Decides Questions of Powers?
Bill of Rights
What does the Constitution Mean?
3 Theories of Interpretation:
Textual: Textualism and Intentionalism
Constitutional: Originalism & Living Constitutionalism
Orginalism: The key to finding out the meaning of the constitution is looking at the text. Evidence from the ratification and federalist papers.
Justification: democratically legitimate, Rule of law answer (we need predictability of what it means)
Plain meaning of the text is important
Living Constitutionalism: evolution of meaning. Changes with time and judges job to update the meaning. People argue the problem with this is that change shouldn’t happen all the time.
What is important to this? Moral theories, cost-benefit analysis or economic calculus, precedent/common law/ tradition and methods/ pragmatism (what works)
Adjudication: Traditionalism, progressivism, pragmatism. (What should judges do and what works?)
Give words their plain meaning
Look at the structure & words of the document
Looks at the intention of the writers. Historicalà what did they want & what was in their mind
Focus on hypothetical or abstracted purpose of law. The overarching principal of law. What is the purpose?
Prior Practice has determined the words to mean
Best Legal / Political Outcome
We get information about this through the federalist papers.
What does the Constitution do?
Divide and separate power
Overarching principle to limit the federal governments power and defines its scope.
Avoid Oppression (a government that does too may things, controls too many things)
Protects Individual freedoms through bill of rights & privileges and immunities clause in article 4.
Constitution is entrenched (not changed by ordinary law) hard to amend and supreme law of the land.
Why is it being entrenched important?
Fundamental principle. Fundamental rights exist, even though they can be amended by the process laid out in Article 5
Stability in the law, good to have people know where they stand, and enable them to make plans. Predictability.
Withdrawn from everyday law
Limits and divides power
Main Problems with Articles of Confederation:
No centralized place for money collection of taxes
Lack of Strong Centralized Executive
Country was failing economically
Differences between Constitution and Articles of Confederation:
Constitution establishes a more firm governments à Federalist 40
Power of domestic affairs, all necessary and proper laws for carrying out enumerated powers.
Necessary and Proper Clause: Article 1 Section 8 Clause 18
Officers of federal government are given fixed terms and salary. (job security)
Great Compromise: Bicameral Split
Senate: equal representation
House: based on population
Independent national executive and judicial branches
No longer just a unicameral congress
Increase powers & expertise now will happen
Checks and Balances
The power of the federal government is bigger and stronger now so it is important to have these checks and balances.
3/5 compromise for House Article 1 Section 2 Clause 3
No new constitutional provision about slavery until 1808 Article 1 Section 9
Fugitive Slave Clause: Article 4 Section 2 Clause 3
Ratification needed by 9 states
Argued about through Federalist 43
Federalist 43 argues the articles are like a treaty an agreement between different nations. If 1 steps out they whole thing evaporates.
9 allows for more things to get done to not allow a small minority to stop everything from happening.
Government is a republic. Government for the people by the people.
Bill of Rights
Barron v. Baltimore: (taking land in Baltimore of ships land)à argued that article 1 section 8 has the enumerated powers followed by art 1 section 9 the limits so they must be limited. Article 1 section 10 after which are the powers of the states to not interfere with. Did not offend his 5th amendment rights. Uses different modes of interpretation except precedent & policy.
Federalist Papers Mentioned in Class:
Important Information from Paper
Justifications for Federalism.
Worries about factionalism and emphasis on geographic size and religious and other pluralism.
Explores the nature of public good.
Defines Faction as a number of citizens who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.
Skeptic of majorities because they exploit the community at the interest of themselves or become confused about the nature of its power.
Thinks you cannot deal with the issue of majorities by (1) destroying liberty or (2) ensuring everyone else thinks the same. à neither of these are possible because of the nature of man.
Permanently entrenched factions are les likely to form in geographically larger and more populous areas.
When you increase the numbers it makes it harder for representatives to make the sale of one interest
We want to extend the sphere
Pluralism is fairer with more viewpoints à way to control an unchecked evil. Fragments power and we want a buffer
Madison feels factions are less likely in a republic than a republic.
Between citizens of different states
Between citizens of same state claiming land is in a different state
Establishes the Supreme Courts Jurisdiction
Original: cases affecting ambassadors, public ministers, and those where a state is a party.
Appellate: all other areas subject to congressional exceptions.
Provisions for trial and convictions for treason.
Judicial Review Power
Case Establishing it
Federal Legislative and Executive Acts
Marbury v. Madison
State Court Decisions
Martin v. Hunter’s Lessee
State Laws & Executive Acts
Cooper v. Aaron
Power to interpret the constitution and strike down statutes the court finds unconstitutional.
No where in the constitutional text
Judicial Supremacy is not the same as judicial interpretation.
Judicial Supremacy: once the court holds a legislative or executive act unconstitutional, must congress and the executive defer to it? (left open in Marbury, answered in cooper)
Marbury v. Madison: lacks power to issue writ of mandamus through original jurisdiction. Judiciary act of 1801, which relieves judges the duty of circuit riding & creates 16 new judges for federal court. Also passes Organic Act, which appoints 42 justices of the peace. Marbury wants a writ of mandamus, which was allowed in the Judiciary Act of 1789. Court can’t issue to writ.
Judiciary Act of 1789 Section 13 is unconstitutional à attempting to expand the courts original jurisdiction, which is not allowed to do. (Deg disagrees with this reading)
It is the job of the judiciary to say what the law means. Supremacy clause requires that the constitution needs to be interpreted. In some ways Marshall is weakening the power of the Supreme Court, by the exceptions clause power not allowing to increase power of the court.
Establishes Judicial Review for federal executive and legislative acts.
Left open the question of judicial supremacy. In Ex Parte Merryman this was questions by Lincoln. (Although in Cooper v. Aaron supremacy of judicial decisions is establish)
Stuart v. Laird: abolished new federal court judges. The courts big show of force was made in the case where the court lacked jurisdiction aka Marbury. Jefferson wouldn’t have obeyed if it wasn’t abolished and would’ve exposed political weakness of the court.
Martin v. Hunter Lessee: court establishes judicial review for state court decisions from article 3 of the constitution. (land dispute in VA)
Cooper v. Aaron: court establishes judicial review for state laws and state executive acts.
Ex Parte Merryman: Lincoln and the AG challenge judicial supremacy.