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Constitutional Law II
St. Johns University School of Law
DeGirolami, Marc O.

Constitutional Law Outline
DeGirolami Spring 2018
Constitutional Themes
Conflict of Government Power and Individual Rights
Variation: interbranch conflict à Individuals vs (Cong – Jud – Exec)
Variation: Conflict of Federalism à Individual vs. Fed gov’t vs. State gov’t
Who decides?
Look to the Constitution
Congress – A.I
President – A.II
Judiciary – A.III
States – A.VI and 10th Amendment
Individual – Bill of Rights
How to decide?
What interpretive approach to use?
Textualism: look at the specific words for the ACTUAL meaning
Intentionalism: intent of the Framers
Originalism: the original meaning of the text at the time it was written
Living constitutionalism: based on the current societal norms (evolves)
Structuralism: looks at the structure of the text to determine a meaning
Traditionalism: traditions of the time (history or precedent)
Progressivism: change with the times
Pragmatism: “what works best?”
General Thinking
What does it do? (THREE THINGS!!!)
Divides power
Federal Government: Jud, Exec, Leg
Fed v State: specify and limit federal power
Protects invididual freedom
Bill of Rights
as drafted applied ONLY to the Federal government (not state or private)
Federalist No. 84
If powers are not explicitly listed, then you do not have them
The Const. is similar to the BOR because it lists a set of right
Assumption is that all powers stay in the States because the Federal Gov’t does not have the power to cover them (listing them will define explicit powers of the State, what is not listed will make it seem as if the FG has that power)
Framers understood the BOR to apply only to the national gov’t and not the states
Barron: (Positivist view)
Facts: Barron owned a wharf which he earned money off of. The City of Baltimore rendered the water near the wharf too shallow for ships, impairing Barron’s ability to earn money.
Claim: Gov’t had to pay Barron based on the “Takings Clause” of the 5th amendment
RULE: the BoR applies to the States (must read A1 s.10 in light of A1 s.9)
Positivism v. Natural Law
Positivism (Federalism): existence and contents of law depends on various social facts and not morality (law is only what the lawmaker says)
Natural Law: law is universally and morally binding upon us (no human can fail to be bound by natural law b/c the rules of natural law direct humans to that which is naturally good for us
Issue: whether the ban on ex post facto laws applies to civil cases
RULE: Ex post facto laws ONLY apply to CRIMINAL cases
Early Controversies
The Bank of the US (1791 – 1811)
Established in 1791 to pay for debts incurred in the Revolutionary War (opposed by Southerners)
Abolished in 1832
The Bank and the Constitution (focus on the interpretation of the N&P Clause)
Constitutional Convention voted against giving Congress power over the Bank
Jefferson opposed the Bank
Hamilton supported it
Key issue: the interpretation of the N&P Clause
Jefferson argues that there are two possible meanings so you must give it the meaning in regards to the ENTIRE document
Hamilton says that if claim is that “necessary” means “really necessary”, what does it mean in A1 s.10 with “absolutely necessary”??
Historical/Original Intent:
Broad language was included to indicate the intent that Congressional powers should be broad
Jefferson: bills must be originated in the House (A1 s. 7)
Who Should Be the AUTHORITATIVE Interpreter of the Const.?
The Const. is silent—no one designated to interpret it (nothing within the text)
AIII gives S. Ct. the power to interpret it within the context of a “case” but there’s no separate “judicial review clause” or “judicial supremacy clause”
Departmentalism: each branch is responsible for protecting the Const.
James Madison “Federalist 49”: the departments being perfectly coordinate cannot pretend to an exclusive power (CO-EQUAL POWERS)
What Does the CONSTITUTION Suggest?
Supremacy Clause: provides that the Const. is the “supreme law” that binds “judges”
AIII: vests “judicial power” in the fed. cts. Which includes the authority to interpret and apply fed. law including the Const. and gives them jurisdiction over certain disputes
Oath Clause: supports view that ALL branches have an obligation to exercise review for constitutionality – when acting under their own constitutional grants of power
Power of Judicial Review: Article III
Vesting Clause – Section 1: “the judicial power of the US shall be vested in one supreme court”
Scope of Power – Section 2 cl.1: “power shall extend to all cases in Law and Equity…to all cases…to controversies”
Jurisdiction – Section 2 cl.2: the supreme court shall have original jurisdiction over cases affecting ambassadors, etc. and appellate jurisdiction over all other cases mentioned in clause 1… with such exceptions…as Congress shall make”
Federalist 78 (Hamilton):
Where gov’t is divided into branches with separate powers, judiciary Is LEAST dangerous to the rights of the Const. b/c it is least likely to annoy or injure them
The Exec dispenses honors and “holds the sword”; the Leg makes the rules
Judiciary must depend on the Exec to aid in its judgments
Consequences = judiciary is weakest of all branches and cannot attack them
The courts are the intermediate body between the people and the leg; therefore, the constitution must be interpreted by the courts b/c if Cong had that power, their legislation would supersede the Constitution
Marbury vs. Madison
Establishes power to review executive and legislative acts and to disregard either if they’re unconstitutional
Facts: John Adams appointed 42 justices of the peace to maintain public order. The commissions were made but 4 were not delivered, including Marbury. Marbury files suit in the Supreme Court seeking a writ of mandamus
Claim: the Judicial Act of 1789 authorizes the S. Ct. to issue this writ
Marbury filed under ORIGINAL jurisdiction (AIII s.2), under the “public ministers” provision
Issue: (1) whether Marbury has a right to the commission (2) whether there is a legal remedy
Held: Marbury has a right to the commission because the right vests once the commission is signed and sealed. The remedy is a writ of mandamus (official order compelling an act) but the Court is not entitled to issue it
Congress attempted to supply this power in the Jud Act of 1789 s.13 by authorizing the court to hear this case
RULE: Congress does not have the power to expand the ORIGINAL JURISDICTION of the Court
Textual Approach: Exceptions Clause in AIII s.2
The grant to the Court is an irreducible minimum (cannot SUBTRACT but can SUPPLEMENT and ADD to the ORIGINAL JURISDICTION)
The powers of the original jurisdiction ARE FROZEN!!
RULE: Judicial review is implied!!!
Sovereignty lies with the people b/c the people have delegated only those enumerated powers in the Const. – Congress can only adopt those enumerated powers (similar to Federalist 78 – what’s written is what is)
Judiciary should interpret cases on the law because if Cong had such power, the Const would be superseded
Stuart v. Laird (Companion to Marbury)
Jefferson reinstated circuit riding, an act that was repealed by the Circuit Judges Act of 1801 just before Marbury
Ex Parte Merryman
Facts: military officer given the power by the executive to suspend the writ of habeas corpus of a prisoner
Held: the Executive exceeded his power. If judicial powers could be overpowered by the military, everyone’s protected rights are subject to military whims
Abraham Lincoln Response:
Pragmatism: Circumstances required such an order because Cong was unable to convene due to resistance within the States
AI s.9: “writ of habeas corpus shall not be suspended unless in cases or rebellion or invasion of public safety…”
Textual: Const. is silent about who can exercise this power
Legislative Power: Article I
Vesting Clause – Section 1: “All legislative powers herein granted shall be vested in a Congress of the US which shall consist of a Senate and House of Representatives”
Enumerated Powers – Section 8 (includes exclusive, impliedly exclusive and augmented powers)
Facts: Maryland imposed a statute which required banks not chartered by the State to pay a tax
Issue: (1) whether Cong has the power to set up a national bank (2) whether MD can tax a nat’l gov’t entity in a way that it does not tax comparable state entities or officers
Held: Gov’t has power to exercise incidental powers, but MD cannot tax the nat’l bank because it would destroy the power of federal tax as well as supersede federal power
Four Arguments
Precedent: the principle at issue was disputed at early periods in history (does not automatically make it unconstitutional)
“The people are sovereign” – Marshall denies state’s sovereignty because they ratify the Const. and gave up some sovereignty to create the general gov’t (Compact Federalism)
Textual: no phrase excludes implied/incidental powers
it would be unreasonable to expect the Const to list all of the powers (this would make the Constitution similar to a legal code/statute which it is not)
Therefore, the powers need to be interpreted differently – there are additional powers which have to be implied in a way that would not be

entment are integral to the separation of powers which is specifically woven into the Constitution
Presentment is required by the Framers b/c of the belief that legislation shouldn’t be passed without being FULLY considered (provides check on Cong exercise of its power)
House can act without Presidential review in certain circumstances:
Impeachment (A1 s.2 cl.5)
Trials following impeachment (AI s.3 cl.6)
Approve/disapprove Pres. appointment (AII s.2 cl.2)
Ratify treaties negotiated by the Pres. (AII s.2 cl.2)
Rule: Unicameral vetoes are unconstitutional
Rule: Can sever a part of a statute if it is consistent with leg intent nor will disturb the overall meaning of the statute
Facts: Cong enacted the Line Item Veto Act which empowered the Pres. to cancel parts of appropriation bills (can retract part of the bill while the rest of the bill goes into law)
Issue: the extent to which Cong can increase the Pres. power beyond the Constitution
Held: the act was unconstitutional b/c it violates AI s.7 which states the correct way to veto a bill (pass from Cong to Pres. who may veto – veto may be overturned by Cong)
Veto in this case was done AFTER the establishment of the bill which is incorrect. Constitution is silent on unilateral action by Pres. to repeal/amend parts of a statute.
If the Veto Act were to be allowed, it would allow the Pres. to create an entirely new law (one not voted on by Cong) b/c Pres. can unilaterally sever parts of the Const without review
Rule: Cong cannot BY STATUTE expand the Pres’s powers to include a line item veto
Any change to Pres. power must come though amendments
Separation of Powers – Legislative and Executive
AI s.1 cl.1: “All legislative Powers…”
Youngstown (Steel Seizure Case)
President does not have any INHERENT executive powers
Facts: in 1951, a dispute arose btwn steel companies and employees over terms in a new bargain agmt. On Apr 4, 1952, Union called on a nation-wide strike. Seeing this as jeopardizing nat’l defense, the Pres. issued an Exec Order 10340 before the strike was to begin. This order allowed the Sec of Commerce to possess the mills and issue possessory orders to have the presidents of these mills to continue working upon his directions. The Pres. sent the message to Cong thereafter
Issue: Does the president have any inherent executive power beyond the powers specifically enumerated in AII?
Held: No.
Black: Textual – NO INHERENT POWERS!!! Const. does not explicitly nor clearly imply that Pres. has the power to seize. Pres. power LIMITED to review and vetoes. Lawmaking is left to Cong.
The Pres. can act without Const or Cong so long as he’s not infringing on other’s powers, or if he is, so long as Cong. ratifies his actions thereafter (in this case, Cong did not ratify Pres. action = disapproval)
Quote: “The Pres. might seize and the Cong by subsequent action might ratify the seizure. But until and unless Cong acted, no condemnation would be lawful. The branch of gov’t that has the power to pay compensation for a seizure is the only one able  to authorize a seizure or make lawful one that the Pres. had effected.”
Frankfurter/Jackson: Pres. can act as long as no action by Cong
Pres. may take any action not specifically foreclosed by statute or the Const and assuming Cong does not close those powers down
Approach: Cong NEEDS to act to stop infringement
Traditional: Should not limit interpretation to just text, but should look at the context and tradition
 In the past, Cong has struck down such actions by the Pres.; therefore, this case should be decided similarly