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Constitutional Law I
SUNY Buffalo Law School
Kannar, George

Prof George Kannar, Con Law I, Fall 2012
The Constitution of the United States of America (CB A1-A14)
Opens with purpose of establishing this Constitution
Article I – Legislative Powers
– Sec 2, Voters in each state shall have same qualification as voters for state leg (greater state power)
– Taxation is to be apportioned among the states on the basis of population (states as sovereigns)
Sec 3, Senators chosen by State Leg (states as sovereigns)
Sec 8, List of powers granted to Congress – Taxes, Provide for common defense, and general welfare of the US, Declare War
Sec 10, States external powers are severely limited, No treaties, Duties.
Article II – Executive Powers
Sec 1- Election of President by Electors
Sec 2, Pres is CinC of military, can make treaties (approved by Senate), Supreme Court Justices
– Somewhat limited compared to Congress
Article III – Judicial Powers
Sec 1, Supreme Court is judicial power of US, Congress shall vest lower courts. Life tenure for judges.
Article IV- Fugitive slave law, Congress controls admission of States, Guarantees every state a republican gov’t, protect from invasion, and on request from state leg protect from domestic violence.
Amendment I- Establishment of religion, freedom of speech and press, assembly, and petition.
Amendment II- Right to keep and bear arms
III- No soldier shall be quartered without permission
IV- Search and Seizure
V- Self-incrimination
VI- Speedy and public trial
VII- Right to jury trial
VIII- No excessive bail
X- Powers not granted to Federal Gov’t are reserved for the States
Civil War Amendments
XIII- Ends Slavery, unique in that it governs private behavior “…shall not exist”
XIV- Due process and equal protection.
 – Places restrictions on the States
 – guarantees equal application of the law
XV- Right of citizens to vote shall not be abridged. Protects freed slaves.
XVI- Congress has power to collect income tax.
– Many clauses in Constitution can be viewed in light of the Founders’ direct personal experiences. Abuses by British authorities (right to speedy trial, prolonged adjournments of representative bodies), and Colonial legislatures (written Constitution, maintain some semblance of State sovereignty). 
Subsection 1: The Power of Judicial Review
Marbury v. Madison 1803 (p.2)
 Facts- commissions for judicial appointments were signed & sealed, not delivered (got lost on Marshall’s desk, secretary of state).  Marbury wants a writ of mandamus from court for commission to be delivered, in effect they have a hearing & a trial.
 Marshall’s decision: 3 questions to answer:
1.      Does Marbury have a right to issue these demands?
2.      Is there a remedy for his demands?
3.      Does this court have the ability to resolve this?
*note that they don’t address the issue of jurisdiction, if they did, this would be a 1 line decision, Marshall wants to say something more than jurisdiction. 
1st issue: yes, commission was complete, signed and sealed, he has a right to it.
2nd issue: yes, issue of civil liberty, id the rule of law that you have a remedy if you’ve been wronged (a gov’t of laws, not of men)
Refers to sep. of pwrs, there are some things the pres can do that the court has no authority over.  There are some other things the pres does that the courts are permitted to review. 
            *political question doctrine: if some matter is entrusted to another branch as unreviewable by the Constitution, the only review is at the ballot box.  (an ex. of this is foreign affairs, which can never be examined by the courts).
– Specifically, when Officer of President acts as organ of the will of the POTUS, than no judicial review. However, if an Officer is charged by the leg. with a duty, that can be reviewed if he fails to carry out that duty.
-Marshall says this is not such a case, this is an ordinary kind of case
3rd issue: two parts
1.      Is a writ of mandamus correct for this situation?
2.      Can it be issued from this court?
Writ of mandamus?  Was a huge issue at the time,  correct use of writs. 
This is a plain case for a writ of mandamus, to deliver commission.
Introduces Judiciary Act of 1789
Marshall read this act as giving original jurisdiction to the court to issue writs of mandamus (it can be read another way, a way for court to dismiss the case on statutory grounds, Marshall doesn’t want to do this). 
Const. gives the court appellate jurisdiction in “all other cases”, the court heard this as original
Can an act contrary to the constitution be law?
Supremacy of the constitution
                                                              i.      The will of the people
1.      They have the original right to establish gov’t
2.      Designed to be permanent
3.      The people assign the positions of gov’t and write them down, limiting the powers of the gov’t
                                                            ii.      Without the constitution, there is no Congress
1.      If the legislature can alter the constitution by an ordinary act, then the constitution is void.  Therefore, it is binding.
If there is a conflict between the constitution and a congressional statute, it is the providence and duty of the judiciary, not Congress, to say what the law is. (puts the court in the position as the rule of deciding constitutionality)
Marshall is saying “I’ve done everything I could to avoid declaring this unconstitutional,” also gives Jeffersonians what they want.
Respects executive privilege
Respects “political question” doctrine
Jurisdiction: Court gives appellate jurisdiction in “all other cases,” because it does this, it means that the first list is final. Congress cannot

the state, law interpreted by the Sup Ct is supreme binding as precedent, Marshall in Marbury, “the province of the court to declare what the law is.” 
It is the duty of the court to declare what the law is.
Once the court announces the law, it cannot be nullified.  “we’ve decided the case, that’s enough to dispose of this case.”
Is this consistent with Marbury?  Marbury only says “we decide b/c we have to.”
*If this view is right, how can a previous Sup Ct decision ever be reexamined? Even the people who are not bound by the order. 
*In this theory, decisions can’t be reversed (does this give too much power to the court?)
This decision does not discuss the need of Arkansas to comply, but for all elected officials to comply with the court’s decision. 
Saying basically there can’t be an issue b/c the case has been decided. 
Which one is right? Cooper v. Aaron or Marbury?  Probably Marbury
Issues surrounding Cooper:
The risk that the court was taking, laying all its chips on the table
                                                              i.      No guarantee that the court having said this, that anyone will comply
                                                            ii.      Concern for the legitimacy of judicial review.
                                                          iii.      *the court’s power depends on the willingness of the other branches to enforce (court is acutely aware of this).
**Countermajoritarian difficult
The circumstance the court encounters every time it exercises judicial review. 
                                                              i.      Goes against what the majoritarian opinion has said.
                                                            ii.      This undemocratic, unelected branch is saying the majoritarian branch(es) got it wrong.
Is judicial review a good thing?
Free from political bias (more detached)
Protects the rights of the minority, don’t have to worry about majority rule
Not dependent on personal career goals.
What are the negatives of judicial review?
Sometimes are political decisions, particularly in view of the appointment process
Is judicial review good for democracy?
Having developed a political culture, where only some acts are unconstitutional
                                                              i.      There’s still an amendment process