Constitutional Law I Outline

Drafting and Ratification of the U.S. Constitution
 
§ 1 Background – Constitutional Convention
Virginia dominated early b/c they were most prepared – Virginia Plan
Madison was their leader
George Washington
Showed up ready to be nominated as chair of convention
Virginia Plan
Randolph introduced, but Madison wrote – written as a “defense against factionalism”
Scope of gov’t in it was so large that no one faction could ever dominate it
Large, powerful Congress
Bicameral House
1st selected by popular vote, 2nd selected by the 1st house
Congress have the power to veto laws made by state legislatures
Congress would elect President – similar to a “prime minister”
Nat. militia could be called out against states who didn’t do their duties
My mid-June, this plan lost its steam
New Jersey Plan
Introduced by William Patterson
Nine resolutions, framed as Amendments to the Articles of Confederation
Retained unicameral legislature, each state has one vote, strict term limits à all from Articles of Confederation
States and Nat. Gov’t would legislate “together”
Representation a key issue
Delaware delegation instructed to not support any plan that didn’t include equal representation
Connecticut Compromise – bicameral legislature w/ one of each
VA and NJ plan solved w/ this; solved small and large state dispute
 
§ 2 The Ratification Debates
Patrick Henry’s Objections
Individual liberties – feared that w/o a Bill of Rights, national gov’t would abuse liberties of people; state gov’t had BOR’s, and Constitution didn’t have one.  Lack of BOR was Henry’s most powerful and compelling argument
Too hard to amend – small minority of people could squelch amendment efforts – 1/3 of Congress or ¼ of states could prevent an amendment from advancing
President – thinks the Prez will become like a King
Centralization of Power – in national gov’t will be to the detriment of the states
Taxes – National gov’t will levy harsh taxes and be a heavy burden on Americans
Massachusetts Concession
Would submit a list of proposed amendments w/ their ratification
Members of Congress from MA would be instructed to support those amendments
This strategy worked in VA, NY, NC, and (eventually) RI
Ended up with a list of over 100 proposed amendments
 
Judicial Review
 
§ 3 Origins of Judicial Review
Background of Marbury v. Madison
1801: John Marshall appointed Chief Justice of SC while he’s still Secretary of State under Adams
Marshall and Jefferson are cousins and hate each other and disagree about everything – Jefferson seems intent on reversing every decision the Federalist crt has passed in the previous 12 years
Jefferson’s biggest issue was state’s rights
Felt all branches would uphold Const. themselves and no branch should check or be referee to the other, all are faithful referees
Marshall was proponent of judicial review by SC
Midnight commissions
Mar. 3, 1801 – Adams’ last day in office, he wants to make a mark
Signs last-minute appointments to staunch Federalists to every position he can think of and figures if Jefferson’s Demo-Repubs would own Congress, Federalists would own the judiciary
Congress creates 16 new positions to fill, as well as authority to appoint as many D.C. Justices of the Peace as Adams wanted – also limited number of SC Justices Jefferson could appoint by lowering that # to 5
Commissions need the Great Seal in the State Dept. – by John Marshall – then gives to his brother (James) to deliver; he doesn’t get all delivered
Jefferson doesn’t know about these midnight appointments, and asks Marshall to stick on as Secretary of State for awhile
1802 – Jefferson beings campaign to impeach judges w/ Federalist view
Judicial Repeal Act – abolished 16 circuit judgeships appointed by Adams
Marshall wants to strike this Act, but none of the judges would appeal it
Random notes
Marbury was one of the judges, wants a Writ of Mandamus to force the court to force new Secretary of State (Madison) to deliver his commission
Should John Marshall ever have presided over this case?
 
Marbury v. Madison, 1803
Marshall’s four questions:
Does Marbury have right to his commission?
If Marbury’s right has been violated, does he have a remedy?
If Marbury has a remedy, is it a writ of Mandamus?
If proper remedy is writ of Mandamus, should it come from the SC?
Right to a commission?
Yes – it was all handled properly in terms of signing and sealing – physical delivery not req’d (similar to “mailbox rule”)
Does Marbury have a remedy?
Yes
Is Writ of Mandamus appropriate remedy?
Yes – “writ” is a  command to a gov’t official, demanding that he do what he’s legally req’d to do
Should Writ come from SC?
No
Judiciary Act of 1789 limits SC to appellate jurisdiction, minus a few exceptions
Marshall says that this Writ can only be exercised by SC when court is practicing original jurisdiction
But this is wrong – these Writs were a tool used all the time – appellate courts often employed them – just one tool in court’s toolbox – he does this in order to construe the statute as broadly as possible…Why?
Marshall says Judiciary Act should be read broadly and that Writ of Mandamus is therefore only available in cases of original juris.
Marshall intentionally setting up a Const. Conflict (Article 3, Section 2.2), so then he can exercise power of Judicial Review
Surplusage Argument Art. 3 § 2.2 grants SC original jurisdiction – “in all other cases, SC shall have appellate jurisdiction.”  Clause must be assigned a meaning and all words must have a meaning – if Congress can change jurisdiction by act, 2nd half of that clause is rendered meaningless
Therefore, since Const. trumps a single law, Judiciary Act of 1789 is unconstitutional, and SC has no jurisdiction to hear the case
“Semicolon Argument” – after the semicolon (in the Judiciary Act), only remedies are discussed – question is whether those are remedies in general or remedies to be avail. In appellate cases (Note: Kobach is fine as hell J — that was for you girls that actually reads this outline)
Marshall is thus forming a conflict here – he has interpreted the gov’t exercise of power very broadly, then interpreted text of Const. narrowly; a conflict b/w statute and Const.
But he didn’t have to, he had several “escape hatches”
Recusal
Common Law Rule – Mailbox Rule
“Political Decision” – therefore non-justiciable
Interpret the Judiciary Act of 1789 less-broadly
Odd that he chose the path he did – normally, Court doesn’t address Const. ??’s unless they have to – if there’s another way out, they’ll take it
 
Review of Marshall Reasoning to Establish Judicial Review
Big Bang of the Case – If SC has juris. Over all cases arising under the const., the court must be able to interpret the const.   Otherwise, SC’s role would be absurd – SC has the last word for what is constitutional and what is not
Marshall has 2 textual arguments
Art. 6 § 3 à oath of office clause, Justices swear an oath to uphold the Const.
Art. 3 § 1, Judicial power shall extend to all cases – would be absurd to say that court could not decide what const. means
But, neither argument is great, and Marshall knows, so he makes a structural argument
Deciding what laws mean is inherently the job of the crts – judicial review is all about what deciding what the law is
When two rules for deciding a case come into conflict , it is judiciary’s job to say what the law is (which to use, which is more correct)
So when two rules come into conflict, the crt must rule on which one trumps – he’s saying the crts are suited for making such decisions, so structurally the Const makes more sense to give this power to the judiciary
Hierarchy of the argument
Constitutional explicit
Constitutional implicit
Constitutional structure
Intent
Constitutional policy
Public policy
 
The Bill of Rights and the States
 
§ 4 The Bill of Rights
BOR applies directly to the federal gov’t
Applies to states thru incorporation via Due Process Clause of 14th Amendment
All have been incorporated except:
2nd amend., rt to bear arms – state / local gov’t can adopt whatever reg. they want
3rd amend., have soldiers quartered
5th amend., right to grand jury indictment
7th amend, right to jury trial in civil cases
8th amend., right for prohibition on excess of fines
 
General notes
Barely even came up during 1787 debates
Aug. 20, 1787, Charles Pinkney makes suggestions to Committee on Detail
Freedom of Press
Pr