CONSTITUTIONAL LAW I
Virelli
Spring 2010
I. INTRODUCTION
A. The point of having a Constitution?
1. Creates a National Government and separates power between the 3 branches.
a) Checks and balances and separation of powers because:
(1) Prevent tyranny
(2) Efficiency of administration
b) Analyzing the purpose of separate branches:
(1) Formalism: Constitutionally enumerated powers states expressly for each branch of government.
(2) Functionalism: Each branch uses its enumerated powers for indicated purpose, separation fulfills Constitutional goals.
2. Federalism (vertical division of power)
a) Division of power between the federal government and the states
(1) What the Constitution does not grant to the federal government, is left to the states provided in the 10th Amendment
(2) Federal government with enumerated and limited powers
(a) Legislature has 18 enumerated powers which are left to the federal government
(3) Sharing power prevents tyranny
3. Protect individual rights
a) Bill of Rights protects citizens from having their rights taken by the government
b) Only 13th Amendment protects individuals from having their rights infringed by other individuals (private)
B. Why have a Constitution?
1. LEGITIMATE – Creates government (strong federal government)
a) Advantages of having a federal government
(1) Defense
(2) Economic unity
(3) International relations
(4) Uniformity
(5) Counter-majoritarian protection of rights
b) Articles of Confederation created a weak federal government with strong state sovereignty; only 1 branch (legislative)
2. ENFORCEABLE – Limits and empowers government
a) Enumerated rights – government can only do what is stated in the constitution
b) Bill of Rights – protect people from the government.
(1) Counter majoritarian principle – there are some things that are too important to leave to the majority
3. PERMANENT – Difficult to change (2/3 vote in both houses; 3/4 states ratification for amendments)
a) Permanent – only 27 amendments which have been passed in 200 years
4. FLEXIBLE – Protects values by limiting its ability to change them through
a) Regular elections
b) Separation of powers
c) Individual rights
d) Equality
C. Methods of Constitutional Interpretation
1. The Constitution is written vaguely to allow flexibility in interpreting.
2. Textualism
a) –Historically rooted in the plain meaning rule.
b) –Literal reading of the words of the Constitution supplemented by structurally clarifying particular words by their relationship to other provisions of text.
3. Originalism –
a) –Judicial decision-making becomes less subjective when cases are decided from the Framer’s original intention.
b) –Many of the writings by the framers (Federalist Papers, James Madison’s Notes) were written to promote ratification NOT as subjective readings of mentalities or intentions.
4. Purposivism –
a) –Looking to the subject matter and purpose the law addresses (or spirit of the law). Values , principles, and concepts behind the text.
5. Contemporary understanding –
a) –A decision without principled justification would be NO judicial act at all.
6. Precedential
a) –Decisions interpreting the Constitution become precedent and although Stare
b) –Decisis is NOT an “inexorable command” it carries such persuasive force as to require a special justification to depart from it. – J. Rhenquist
7. Realism
a) law is the law based on the judge’s opinion and desire. – Oliver Wendell Holmes
b) (Sophisticated argument if intelligent enough to make it)
8. Naturalism
a) –Philosophical notions of justice.
9. Pragmatism
a) –Uses a combination of interpretive techniques best on what makes sense.
10. Use of International Law to assist in the Interpretation
a) –Interpreting our constitution through the laws of other nations.
(1) –Should we care about the opinions of other nations concerning the function of our government?
(2) –Should the longer histories of foreign nations effect our thinking?
II. CONSTITUTION & IMPORTANT AMENDMENTS
A. Preamble
a) Expresses the General Purposes of the Constitution
B. Article 1: Congress
a) –Section 1 – Vests Legislative power in House and Senate
b) –Section 2 – HOR: members chosen every 2 years; prescribes qualifications for membership defines appointment through census, HOR initiates impeachments.
c) –Section 3 – Senate: 6 year terms, prescribes qualifications, Senate gets power to try Impeachments.
d) –Section 4 – Provides for Senate and House elections
e) –Section 5 – Notes independence of each house
f) –Section 6 – Privileges of House and Senate; can hold NO other office
g) –Section 7 – Bills passed by congress to President; 2/3 vote necessary to override
h) –Section 8 – Enumerates Congressional Power: Tax, spend, regulate commerce, coin money, create federal courts, declare war.
i) –Section 9 – Restricts powers of congress.
j) –Section 10 – Restricts state powers in conflict with Congress: can NOT coin money, tax exports, keep troops, engage in war.
C. Article 2: President
a) –Section 1 – Establishes President and Vice President, length of terms, electors and elections, qualifications, removal, compensation, and oath of office.
b) –Section 2 – Presidential Powers: Commander-in-Chief, Pardons, make treaties, appoint officers, fill Senate vacancies.
c) –Section 3 – Presidential Duties: State of the Union, convene Congress, receive Ambassadors, commission officers.
d) –Section 4 – Sets Impeachment procedure.
D. Article 3: Judiciary
a) –Section 1 – Vests power in Supreme Court and inferior courts created by Congress.
b) –Section 2 – Establishes federal and supreme court jurisdiction (original and appellate), provides jury trials for crimes.
c) –Section 3 – Establishes the crime of, and punishment for, Treason.
E. Article 4: State Relations
a) –Section 1 – Provides for full faith and credit between states
b) –Section 2 – Privileges and Immunities among State citizens, provides for extradition and fugitive slaves.
c) –Section 3 – Sets rules for the creation of new states and power for governing territories.
d) –Section 4 – U.S. guarantees states a “Republic” and protects states from invasion. GUARANTEE CLAUSE
F. Article 6: Constitution’s Effects
a) –Section 1 – Pre-Existing debts are good against the US
b) –Section 2 – Establishes the supremacy of the Constitution, “laws made in pursuance thereof” and treaties. SUPREMACY CLAUSE
c) –Section 3 – Gov. officials bound by oath to support the Constitution, NO religious test for office.
G. Article 7: Ratification of the Constitution
a) Nine states Necessary
H. Amendments
1. Amendment 2 (1791) – Right to Bear Arms
2. The amendment was adopted so that Congress could not disarm a state militia.
3. Amendment 5 (1791) – Rights of the accused (Self-incrimination, Double Jeopardy, Due Process,
a) Just Compensation)
4. Amendment 9 (1791)- Rights Retained by the People
a) Any rights not listed in the Constitution are still protected
5. Amendment 10 (1791)- Powers Retained by the States and the People
6. States or people have all powers not given to national government. (i.e., marriage)
7. Amendment 13 (1865) – Abolition of Slavery
a) 1st CIVIL WAR AMENDMENT – Slavery is illegal
8. Amendment 14 (1868) – Civil Rights
a) 2nd CIVIL WAR AMENDMENT – Slaves receive Citize
iew their decision.
c) REASONING: The Court rejected the claim that Virginia and the national government were equal sovereigns. Reasoning from the Constitution, Justice Story affirmed the Court’s power to override state courts to secure a uniform system of law and to fulfill the mandate of the Supremacy Clause.
3. District of Columbia v. Heller
a) RULE: Constitution protects individual’s 2nd Amendment rights to bear arms and this right cannot be infringed upon by other laws
b) Facts: DC refused to grant a special policemen’s handgun application since DC had a ban on handgun possession (Constitutional?)
c) HOLDING: Yes it is unconstitutional because 2nd Amendment confers an individual right to keep and bear arms (counter-majoritarian).
d) INTERPRETATION: How to read the constitutional clauses together, operative clause of “right to bear arms” and prefatory clause “a well regulated militia, being necessary to the security of a free state”
(1) Scalia used textual approach, history and precedent to find Militia existed when amendment was written, it was defined as everyone who could lift a gun, the amendment codified an existing right.
(2) Breyer used history, framer’s intent and pragmatic approach to come up with “interest balancing” approach
(3) Stevens used precedent and textualism to find the constitutional right to bear arms is given to military
E. Limits on Judicial Power
1. Justiciability – a judicially created doctrine which limits the judiciary by defining Art III “cases and controversy”
a) Threshold issue which must be determined before any other issue put before the court
b) Judiciary limits itself because of the separation of powers, promote efficiency and enhance credibility
F. 5 Justiciability Doctrines
1. Advisory opinions
a) Judicial decisions not involving a case or controversy which brings up efficiency, quality and fairness concerns
b) Requesting an answer for a question of interest as to whether something is constitutional
c) Not given because if SC were to issue advisory opinions, they would be able to influence politics which would upset the balance of power
2. Standing
a) Plaintiff must be a proper party to bring the case because he has the case or controversy since judges should only decided cases and controversies (Threshold issue).
b) Constitutional requirement (non negotiable):
(1) Injury in fact
(a) Concrete/fact
(b) Actual/imminent
(2) Causation
(a) Did the person being sued cause the injury (Statute caused the damage?)
(3) Redressability (an absolute must, for oneself, not on the behalf of others)
c) Constitutional standing (F.O.E. v. Laidlaw)
(1) Based upon Article III criteria and requires
(a) Injury in fact
(i) Concrete and particularized – cannot be abstract or speculative
(ii) Actual and imminent
(b) Traceability/Causation – must be “fairly traceable” to the D’s conduct
(c) Redressability – relief requested must alleviate the injury caused by the D’s conduct
(i) Not a question of whether D caused the injury
