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Constitutional Law I
SUNY Buffalo Law School
Gardner, James A.

Constitutional Law Outline Gardner Fall 2012
Con Law Exam
Part I(50%) –Take Home
·          Exam style is take home, typed, enforced page limit. Essay àA week before the in-class exam to a 5 page limit.  Review all materials.  You form an argument based on an issue.
·          Name of the case and the page
Part II (50%) – In Class
·          In Class part. Not an essay but a hypothetical situation where you are given a role (law clerk) and asked to prepare a memo to your boss sizing up the situation.  Our argument, counter-arguement, our response to argument.  Real world situation with lots of facts.  Determine which facts are important/ relevant to each arguments.  Type this as well.
·          Name of the Case and the page
“We the people” was revolutionary, most governments were monarchies
I.                   Is the Constitution wholly Democratic? (NO)
·         Reasons à(1) Only white land owning men could vote, (2) Constitutional voting comes from State elected officials (not directly from the people), (3) The rights and privilges of the people are not discussed in the Constitution, (4) Slaves count as 3/5 vote, and (5) Judges are appointed not elected
II.                What is Democratic about it?
·         Congress is elected by the people (white land owning men), it’s Un-British (you can’t hold office in more than 1 branch at a time, The President is the Commander-in-Chief of the Army (elected not appointed).
III.             What are the protections of Liberty in the Original Constitution?
·         Guaranteed a Republican form of government for the States (you can’t elect a King in Rhode Island), Speech & Debate Clause (free to voice your opinion on the floor w/o treason), That the Constitution can be amended
IV.             Revolutionary Features of the US constitution – among other things
·         Amendments – People can change it if they don’t like it.
1.      5th Amendment, Due process of the law & 8th  Amendment, cruel and unusual punishment,  ARE INTENTIONALLY VAGUE
2.      1st Amendment – Free exercise of religion and no establishment of religion.  Before the amendment, Article 6 says no religious qualification for holding office.  (Anyone of any religious background can hold office as of right)
·         Separation of Powers
Purpose of Constitution
·         So the Government can’t get too strong.  Done in 2 ways – (1) Structure the government into 3 branches (Executive, Legislative, and Judicial) and (2) Specify things the government can’t do overseen by a “System of Checks and Balances” –Prevents any branch from becoming too powerful.
                                                            1.      Article 1,§6 – Can’t be in both legislative branches of governement at the same time (not like Britian)  This ties the interest of the person to the power of the place.  A senator’s interest is with the Senate.
                                                            2.      Article 4 – “Full Faith and Credit Clause” seems to say that other states should adhere to the laws passed from one state.  (Not really – gay marriage is example)
·         Specify things the government can do:
·         4th Amendment – Habeaus Corpus, Illegal searches and seizures.
·         3rd Amendment – **Most underlitigated provision – Soldiers can’t take over peoples houses in peace time
·         Amendment 7 – Jury trials for common law
·         13th, 14th, 15th Amendments – Bill of Rights (1st 10 Amendments to Constitution) don’t mention all men are created equal.  13, 14, 15 – Slavery is illegal, establishes citizenship, citizens can vote but not automatically
·         14th Amendment §1 “Equal Protection Clause”– The idea that the state (as well as federal government) can’t violate rights of citizens without due process.
·         13th Amendment – No slavery or involuntary servitude shall exist.  Different from everything else is the language.  “Neither slavery or involuntary servitude shall exist.”  Everything else in the amendments says “you shall not…”
·         14th – Privileges and Immunities as against state infringement.
·         15th – No racial discrimination against voting. 
·         The last §’s of 13,14, 15 says Congress may enforce these laws through legislation. 
·         Ground Rules for elections
Background of Judicial Review
Article 3 – Supreme Court
·         The Supreme Court is entirely an undemocratic body: court is appointed by the President, appointed for life.  The power that they have is in the public’s acceptance of it’s legitimacy – its power to declare and enforce the law.
·         Judicial Legitimacy – The Courts difficulty as a non elected group is that it tries to satisfy the people.  A Congressional statute formed indirectly by the people, can set aside as unconstitutional by a panel of 9 members.  (Counter Majoritarian Difficulty).  Supreme Courts source of power is that people will obey it because popular trust in the Supreme Court overrides what the people’s interests are in the legislation.  The SC protect legitimacy 2 ways:
o   Choosing good cases
o   Writing great opinions
·         Hayberms Case – really 1st case of judicial review not Marbury v. Madison.   Veterans benefits who served in the revolution.  A decision wasn’t reached but a majority of the justices sitting agreed. 
I.       Review of Acts of Congress
Marbury v. Madison àThe Court defines what the law is when § conflicts w/ Const.
·         Marbury was appointed to be a federal judge under the Judiciary Act (JA) by President Adams at the end of his term.   Jefferson came into office and told Madison (his Secretary of State) not to deliver the appointment.  Marbury sued in the Supreme Court to make Madison deliver the appointment by issuing a writ of mandamus.
·         Justice Marshall asks 3 questions:
o   Does Marbury have a right to the appointment? Yes – under the JA
o   Does the law afford a remedy? Yes – Civil Liberty (The right for appointment was required by law and must provide a remedy)
o   If they do afford him a remedy, could the Supreme Court grant this remedy? à NO
§  Although the Judiciary Act empowers the Supreme Court to issue this writ, the SC can’t hear the case as a matter of 1st impression.
§  The Judiciary Act was at odds with the Constitution.  The Supreme Court only has original jurisdiction on (1) Appeals from Court of Appeal or State Supreme Court or (2) granting a Writ for Certiorari.
·         Supremacy of Constitution
o   Holding à If there is a conflict between the Constitution and a Congressional provision, the Court has the authority (and duty) to declare the statute unconstitutional and refuse to enforce it.
§  Constitution is paramount
§  The Court, not the legislature, says what the law is.  To deny the Court judicial

·         91 out of 8,000 were argued.  79 were disposed of.
·         Justice Breyer says SC is unanimous about 40% of the time.  40% of 91 cases are unanimous.  16 are 5-4 results.  O’Conner and Breyer about 70 – 77% vote the same way on issues (“Swing Vote”)
·         If court rules 4-4, the judgment below stands.
Writ of Certification Notes:
“Cert was dismissed as improvidently granted” à SC dismisses the cert they originally granted.  They say that they made a mistake to take the case.
“Cert denied” à means the Supreme Court feels the lower court got it right.  There is no issue for them to fix.  “Cert denied” has no precedential effect. 
Cert is granted à You, as counsel, and your opposing counsel,  need to file a brief on the questions presented that the Supreme Court wants to rule on.  The third brief can be filed by “amicus curiae” friends of the court (experts) will submit the other briefs for the court.
·         SC schedule arguments – 20 or 30 minutes per side.  The argument is a conversational discussion. 
·         Justices meet on Friday to deliberate on the 12 cases of the week to vote on them.  The only people in the room are the justices.  Confidence is preserved in these meetings.  Chief Justice begins the conference with his view 1st and then continues around the table based on seniority.  They get a tentative vote.  If Chief justice is in the majority of the opinion, he has the power to write that opinion or assign it.  If Chief Justice does not, the most senior authority writes the opinion.
·         In chambers, that justice drafts the opinion with the help of the clerks.  (Like 9 little law firms)
·         The opinion is shared (circulated) with each other after it is drafted to make revisions.  They want to make sure that they get 5 votes in the cases. 
·         If there is a division, someone writes the dissent which is circulated to get 3 Justices to join in. 
·         Justices can switch their opinions based on the majority and dissent opinions
·         How is the opinion issued?
·         From the bench, no one knows when it will be issued.  But a Justice will deliver an opinion of a case to the court. 
·         Pressures that the Elected Officials Can Bring to the Judiciary to Challenge Judicial Independence:
·         Judicial Activism versus Self Restraint.  An activist judge challenges precedent.  A self restraint judge follows precedent.
·         Strongly disagree with what the court is doing
1.      Court is being overly aggressive in finding new rights and liberties that prevail over majority enactments.  (States outlaw sodomy à Supreme Courts approve sodomy)
2.      Judiciary overly aggressive denying Congressional statutes who are trying to find new rights.