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Constitutional Law I
St. Johns University School of Law
Shea, Thomas F.

Con Law I Outline

I. Constitutional Origins and Text
a. The US Constitution
i. The Consti is a social contract by the people (see the preamble) and by the several states (Art VII) representing the people
ii. Does not answer who has the ultimate authority; there are many holes/gaps but this is on purpose (Art V allows for amendments)
b. The Legislature:
i. How Congress was set up was a compromise btwn the big and small states
1. House of Reps: 435 and Senate: 100/ 2 pr state
2. Meant to slow down the process for deliberation and debate
c. Appointing Federal Judges
i. Another form of checks and balances
ii. Pres gets to nominate but Senate has to confirm (to avoid corruption/appointees who only agree w/ Pres don’t fill the bench)
d. How a Bill Becomes a Law
i. Art I s 7: more checks and balances; both houses participate, P gets to veto
ii. Cong can override w/ a supermajority but v. hard to do
e. Impeachment
i. Art I, s 2, cl 5/s 3, cl 6: both houses vote to have trial and the Senate actually holds the trial
ii. Pres/VP/Justices/Civil officers can be impeached
f. Declaring War
i. Art I, s 8: Congress declares war; no real limitations
ii. Cl 18 (N&P) means they can do whatever they need to do
II. Judicial Power and Judicial Review
a. Judicial Power:
i. Art III: NOT defined, just says 1 SC, grants jurisdiction and talk about treason but that’s it!
ii. Jurisdiction (limited NOT general) Art III, s 2
1. Federal question (consti/fed law/treaties)
2. Ambassador/public ministers/consuls (OJ)
3. Admiralty and maritime
4. US as a party
5. Btwn two or more states (OJ)
6. Diversity – two or more state citizens
7. Land grants
8. Alienage
iii. Appellate vs. Original Jurisdiction
1. OJ cannot be altered by Congress
2. AJ can be regulated by Congress (Art III)
a. An affirmative grant of jurisdiction w/ a negative implication (McCardle) if not described, not granted
b. “Exceptions and Regulations” Congressional check on judicial pwr but controversial and not really used
c. Marbury rejects idea that this clause applies to both OJ and AJ – bc then why bother listing out jurs in the first place
3. AJ is discretionary (if 4 of 9 judges want to hear a case, they hear it)
a. Writ of Certiori – to apply to be heard by SC (usually SC takes cases re: consti questions or an area of law the lwr cts are confused about)
4. In Marbury, Congress tried to grant the SC original jur in cases not stated in the consti, not OK
b. Marbury v. Madison: establishes that JR is consti; Marbury was appt’d as a justice but never got to take office (suing for his job) SC being asked to order a high level official (cabinet) to do something/review of executive acts
i. Marbury has a legal right to his commission bc the doc was signed by P and comm. is complete when the seal is on it from the Sec of State (not delivered is just a technicality)
ii. Every individual has the right to claim the protection of the laws if he receives an injury and it’s the duty of the fed govt to give that protection
1. Very overly broad but we’re a country of laws, not men, so no one is above the law; indicating that even an executive official/President can be ordered to do something
iii. Exceptions:
1. There may be something about the act that exempts it from legal investigation/redress; ex: appointing ambassadors
2. NO legal remedy if the act is by a head of a dept appt’d merely to execute P’s will or where the Pres has a consti or legal discreti

It doesn’t matter if a state or its officials aren’t parties to a litigation – when a SC decision makes an amendment the supreme law of the land it is binding on all the states
3. The other branches help enforce SC opinions bc they respect it – all the SC has is its judgments
e. Methods of Constitutional Interpretation
i. Noninterpretivists vs. Interpretivists
1. Noninterpretivist: don’t try and figure the text out, it should be what we think of fundamental justice – not limited to the text; imply meaning that’s appropriate
a. Problem = no restraints
2. Interpretivists: all judicial review can cover is the written text
a. Problem = a lot in consti is not explained
3. Calder: issue over a will – ideas of natural justice aren’t fixed;
a. If it falls w/in the general scope of consti power, cant
ii. The Textual Method: present sense of the words, reaching some common agreement of the meanings (not always adequate/pass)
iii. Historical Argument:
1. Originalism: what is the original intent of the drafters/authors intent – prohibits/prevents judges from remaking consti to fit personal prefs; original meaning of the text at time of adoption – refer to consti interpretation at the time
a. Problem = evidence? Whose intent? Changes (Technology, women, minorities)
2. Vectors: of history, dynamic, changing history, what is the contemporaneous meaning?
a. Problem = fortune telling