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Constitutional Law I
Temple University School of Law
Green, Craig

I.   Basics
Document, Its Plan
–        AofC, 1781: Minimal structure, creates Congress, unites states, power to states – if not in AofC, it’s a state right – state sovereignty
o   Confederated government: Could make peace, create postal system, settle interstate disputes, regulate money system, control dealings w/ Indian tribes, naval powers
§ Congress could pass laws, but nothing really to back it up – no authority, no money
§ No taxing power, no power to control commerce, no executive, virtually no judiciary, no bill of rights
o   To amend AofC, unanimous consent required – never happened
§ Constitution’s framers exceed scope of mandate, ignored amending procedures – unlawful?
–        Constitution, written 1787, ratified 1789, BofR 1791: Executive branch created, Congress has power to tax and regulate commerce, federal judiciary added; limited powers of states in 10th Amendment compared to AofC
o   Framers, goals?
§ Foresight, flexible, vision, faith in democracy
§ Series of ad hoc compromises that resolve specific issues
§ Aristocratic conservatives who protected private property, well-to-do from any real democracy – no direct election of senators, electoral college, who could vote?
Why Constitution?
–        Specialness
o   Enduring values, guiding principles
o   Ground rules that are beyond reach of change, hard to amend: 3/4s of Congress, 3/4s of states under Article V
o   Say who does what, how – make it explicit, people can read it
o   Special values – democratic, liberty – ideas that deserve respect, protection
–        Political document or law?
–        If AofC were legitimate – because of Revolution – had to comply w/ AofC’s amendment procedures: Didn’t happen
–        Constitution drafted, sent to states; constitutional conventions in every state – people ratified
–        Respected as legitimate:
o   Majority rule – then and now – as legitimation? Got the votes then, hasn’t been upset
o   Guns, boots horses as legitimation – Revolutionary War (what about AofC), Civil War?
o   Belief in Constitution as legitimate as legitimation?
o   Military might today as legitimation?
o   Reliance as legitimation?
–        Qs of legitimacy in constitutions generally:
o   If government has lost legitimacy – how can it propose system to amend constitution and have it be taken seriously? Election? Regular legislative body?
o   How to ratify? Popular referenda, legislative adoption?
–        1 shining moment?
o   Constitutional moments vs. ordinary politics
§ Constitutional moments: Serve majority opinion, focus on fundamental issues of democratic government, partisan concerns take backseat for long-term good; adopt policies, not bargain over them
o   Constitutional perspective is impossible to create vs. day-to-day politicking – self-interests remain
o   Constituting power (setting it up) v. constituted power (operating w/in limits)
II. Judiciary
Article III
–        “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” (§I)
o   Doesn’t say what the judicial power is
o   Doesn’t create judicial review as a power
–        Jurisdiction
o   Federal Q jurisdiction: Constitution, laws and treaties
o    “Diversity” jurisdiction
o   Specific party jurisdiction
§ “In all Cases affecting ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the Supreme Court shall have original jurisdiction.”
§ Everything else on the list is appellate jurisdiction
–        Guarantees trial by jury (§II)
Judicial Review
–        NOT IN CONSTITUTION – But unstated premise of Constitution is that people listen to courts
o   Constitution is supreme, statutes that violate it is void
o   Marbury: It is the power and duty, the function of courts to decide what the law is
o   Therefore, it’s the duty and power of the courts to strike down unconstitutional law
–        May have been contemplated by framers, however
o   Hamilton, Federalist No. 78
§ Doesn’t mean judiciary superior
§ Courts stand between people and Congress to check Congress’ power, keep it in line w/ Constitution
§ No law can contravene Constitution
·         Courts merely put will of the people at fore – the Constitution; other laws are the will of their agents
·         Courts must follow judgment, not will; judgment is interpretation of precedent and rules, will is their feeling
o   BUT some say judicial review was to be limited – only if law clearly unconstitutional
§ Courts were second-guessers – Congress was to determine if a law was constitutional based on the will of the people in Constitution
§ Republican institutions were to find the constitutional limitations
–        Judicial activism?
o   Marbury: Power grab for court?
o   Limiting Reconstruction Amendments – Slaughter House, P&I; Civil Rights Cases, state-action requirement; Plessy, separate but equal
o   Lochner Era: Supports business as is
o   Brown and civil rights; fundamental interest in voting – Harper
o   Griswold and Roe
o   Lopez
–        Who can interpret Constitution?
o   If anyone thinks law is unconstitutional, they can kill it
§ President doesn’t sign, Congress doesn’t pass, Scotus strikes down
§ Congress can veto, Scotus needs case to come to it
§ Marbury shows court can be self-restraining – didn’t give itself expanded powers as it could have
o   Court specializes in constitutional interpretation, is free from political pressure and Congress specializes in policy
–          BUT court can defer to Congress – it also takes oath to protect the Constitution
–          No deferment to Congress lets Congress ignore the Constitution, pass unconstitutional laws
o   Cooper v. Aaron: Court has special place for interpretation
–        Courts have no enforcement ability: Boots must follow court decisions – they do, largely because Marbury v. Madison showed court’s restraint, best interests of nation, Constitution – wasn’t after its own power
o   YET, in limiting its jurisdiction it expands power by creating judicial review. Well played.
Constitution: Law or political document?
o   If fundamentally a mechanism for politics, social, culture it might bend, not follow legal technicalities
§ Popular constitutionalism – find meaning as required in Constitution, it’s alive
§ Court would be the last group that should decide Constitution – it’s not elected, removed from people
o   If fundamentally law, then final arbiter of the law is the court
§ If the Constitution and law conflict, Constitution wins under this theory
§ Marshall in Marbury says it is not political, it is law
§ Marshall wants a particular type of Constitution – he establishes it in Marbury
Marbury v. Madison (1803): “It is emphatically the province and duty of the judicial department to say what the law is.”
–        Adams, Sec. of State Marshall try to flood judiciary w/federalist judges before Jefferson takes office. Commissions not delivered. Jefferson, Madison refused to deliver. Marbury, who was confirmed (Article II, Sec. 2), sought mandamus, bases original jurisdiction on the Judiciary Act of 1789.
–        Judicial review created: If law contravenes Constitution, court can strike it down – it’s court’s duty
o   Otherwise, executive/legislative can set their own bounds; courts limited by their oaths (as are legislators, president, but whatever)
–        Act unconstitutional – Congress can’t add to/cut from original jurisdiction under Constitution
–        Originalism/text: “Shall have o.j. … and in all other cases shall have a.j.”
–        Structure: Highest law of the land, something conflicts, it loses
o   Scotus interprets Judiciary Act as providing that Marbury can bring action for mandamus in Supreme Court originally.
–          But, Scotus does not have original jurisdiction over mandamus actions under the Article III, Sec. 2, and therefore has no authority to hear the case.
–          Scotus can issue mandamus, but only when sitting as appellate court
–          Directing executive officer to act parallels original jurisdiction – not permitted under Article III – original jurisdiction in very specific circumstances.
o   Article III, Section 2: Facially, no o.j. in this case; court says it’s a closed list, can’t be added to
–          Could be more? “Shall have” not “Shall not have”
–          But court sees it as floor & ceiling, not just floor
§ O.j., a.j. mutually exclusive; o.j. limited to cases affecting ambassadors, public ministers/consuls, and states
–          To read first clause o.j. clause as merely provisional and allow expansion renders a.j. clause w/o effect
Martin v. Hunter’s Lessee (1816): The appellate power of the United States extends to cases defined by Article III of the Constitution originating in state courts; Scotus has power to strike down federal statutes as unconstitutional and state statutes as unconstitutional.
–        Land dispute, Hunter’s sought title under Va. statute; Martin said anti-confiscation clauses of U.S./British treaties rendered confiscation ineffective; Va. Supreme Court found for Hunter’s; Scotus reversed but Va. refused to enter judgment for Martin
–        Text: Article III, Sec. 2, Clause 1: Federal judicial power extends to all cases mentioned in Article III; it is the case, not the court, that gives the jurisdiction.
§ To limit appellate jurisdiction to cases arising in federal courts would render “all other cases” language a nullity
§ Scotus has a.j. over all cases under Constitution, federal law, treaties; some will arise in state court; therefore, to have a.j. over all such cases, Scotus must have a.j. over state courts
o   Article VI: Supremacy Clause: Founders must have anticipated that state courts would hear federal Q cases: State judges must take oath to enforce Constitution
§ Since founders anticipated that state court would adjudge federal law cases, and included the supremacy clause as one check on this state court power, it is reasonable to interpret Article III of the Constitution as authorizing federal review of state court decisions regarding federal law issues as another check.
–        State officials bound by Constitution:
o   Article I, Section 10: Constitution imposes prohibitions and duties on the states
o   Article VI: Must take oath
–        Other reasons:
o   State prejudice/interests: Assumption of bias in Constitution
o   Hostility toward federal rights vs. state rights
o   State judges have political pressure – elections; not federal judges
o   Uniformity of laws for all citizens
§ Without appellate review, P’d always choose state court for the bias factor
Cohens v. Virginia (1821): Establishes review of state criminal cases from state courts in which state was a party.
–        Affirms Martin
–        Ds convicted of unlawful sale of lottery tickets in Va. said Congress OK’d D.C. to establish lottery. Court affirmed – sale not authorized outside D.C.
Cooper v. Aaron (1958): Marbury declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution; interpretations of the court are supreme law of the land; ignore Scotus, ignore the law, ignore the Constitution; no state official can war against the Constitution w/o violating oath to support it.
–        Arkansas failed to comply w/ district court order requiring desegregation.
o   Scotus: Law and order are not to be preserved by denying black children constitutional rights
§ Governor, legislature bound by Scotus’ Brown
o   Marbury – may mean only that every branch of government, w/in its sphere, is authorized to interpret Constitution
o   Cooper says judicial branch has special role as ultimate guardians of Constitution, other branches must look to the courts’ interpretation as authoritative
§ Would limit other branches, force them to ask how Supreme Court will decide
Countermajoritarian Difficulty
o   Democratic process loses out
§ Strips politics from law writing, strips question of principle from political process
§ Correction of legislative error comes from the court, not the law-making body
§ Courts should strike down only clearly unconstitutional laws – if it’s rational, it’s constitutional – silly, dumb laws will be excised by the democratic process
§ Unelected judges

Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
o   Structural Argument: Why enumerate at all in Article I, section 8 if it was not enactor’s intent to limit Congress to specified list of powers?
Origins of enumeration
–        Defect in Articles of Confederation was failure to give sufficient power to national government BUT:
o   1) States ought to remain as significant units of government and the national government ought to exercise its power only on distinctively national subjects, while states would exercise control over most matters of general government
o   2) Power granted to national government might be improvidently used, so as to suppress liberty and choke economic development
§ Justice Stevens: Power derives from people, not states – significance today – states can’t dictate on national issues, such as term limits for their congressmen
§ Justice Kennedy: Division protects the state and federal government from each other – states may not interfere in relationship between federal government and the people
§ Justice Thomas: All power stems from people – consent of people of each individual state, not the nation as a whole.
–        Enumeration limits federal powers
o   Hamilton, Federalist 84: Enumeration makes BofR unnecessary – the people surrender nothing but retain everything so they should have no reservation – they give the power
§ Political safeguards – they could change what they don’t like
o   BofR would be dangerous – provide exceptions to powers not granted:  Why give press liberty when nothing restricts the press? It could give implication of power to regulate it
Values of Federalism
–        Efficiency: Large scale good for defense, transportation, communication; but local problems can get national response
–        Individual choice: National government can enforce values shared by majority of nation, even against those who are majority in a few states; but states can provide variety of choices
o   Madison, Federalist 46: Federal, state governments are different agents of the people – different purposes, policies – authority resides in the people
o   McConnell: Giving states say on issues means state populations can control smaller sphere, people can move
o   Baker and Dinkin: Federal legislation can force states to eliminate competitive advantages
o   Political process is likely to favor decentralization.
§ Minorities nationally may be majorities locally; decentralization allows people to vote w/ their feet, fewer policy compromises adopted that create minimum winning coalitions but do not accurately reflect the interests of any particular interest group; reduction of signaling and other transaction costs for expressing citizen preferences
–        Encouraging experimentation: Brandeis – states can experiment w/o threat to rest of the country; high court has to be careful not to let prejudices become legal principles
o   Rose-Ackerman: Brandeis overstates the case – politicians seek only reelection. Voters have “wide range of risk preferences.”
–        Promoting democracy: More elections, more offices, more involvement
–        Preventing tyranny: States as check to broad tyrannical federal power – and vice versa
o   But maybe not: Federalism creates mutually exclusive realms of power – and eliminates checks against the exercise of authority
–        Forms of federalism: Can be concurrent power to regulate, states may have exclusive power, federal may have exclusive power, neither may have power to regulate (constitutional violation)
Enforcing Federalism
–        How is allocation of powers between states and federal government to be enforced – by the courts or through political checks on Congress?
o   Both ways are imperfect – Congress may enact laws inconsistent w/ proper allocation despite political constraints, courts may invalidate laws that are consistent w/ proper allocation
o   If Madison is outdated, the courts need to find the right balance OR the framers believed in federalism and even they believed that the courts should not be involved
§ Why is Madison outdated? 17th Amendment – direct election; reconstruction amendments – take more power from the states
o   Wickard: Don’t like the commerce powers? Vote out the anti-wheat folks
–        Political safeguards:
o   Madison: Argument. Federalist Nos. 45 and 46 – members of Congress will be so imbued w/ respect for local governments that they will rarely exercise even broad grants of power improvidently
§ No. 45: Power, support, influence w/ states; U.S. reliant on states, states not reliant on U.S.
·         The principle branches of the federal government will owe existence to the state governments (Senate appointed, president through electoral college, House feels influence), must feel dependence; states not beholden to federal government
·         Smaller U.S. than state governments – less personal influence w/ U.S.