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Constitutional Law II
UMKC School of Law
Kobach, Kris W.

Con Law II Outline

*Why do we need a constitution?
-Define gov’t institutions
-Define powers of inst.
-Define rights/limitations on gov power
-Negative liberties- impede gov’t- gov can’t do something to you
-Positive liberties- rt to demand something from gov (fed const no + rts)
*Theory of “we the people”- ok but not voted on by the people…only in RI and did not pass
*B4 Const.- Art. Of Confed.
-Sept. 1786- 12 Senators met and wanted uniform code of trade regulations; VA legis
called for this.
-Feb. 1787- Congress calls Philly Convention to re-vamp Art. Of Confed.

-The new const. and the whole convention were legally problematic- weren’t supposed to come up with new gov, but did. Also said new way of ratifying—ratified by conventions not legis. Also only 9 rather than 13 sts ratified.

*1787 Ratified- but st. legis still remained sovereign- b/c enumerated powers- Fed Gov can only exercise those listed in const. Therefore some people (like Hamilton) said don’t need B of R can only do those that are written in const.

-Sts have all other powers- inherent residual powers- these do not need to be defined- police powers
-Sts hold all power in 1787- gives some (enumerated powers) to fed gov.
-Also separation of powers- Vertical (Fed, st, local) and horizontal (between branches)
-Some limits on Fed gov- Art. I § 9 (but only limits legis. Not exec. Or judicial).

*Who enforces the Const? Options:
-Judiciary (Hamilton wanted this) (Wins…Judicial Review…see below)
-Each branch regulates itself (Jefferson believed this)
-Each against each other
-Have states do it
*Judicial Review
-First exercised in Haburns but not explained.
-Marbury v. Madison defended doctrine of Judicial Review.

-Justice Marshall set up a conflict between the Judiciary Act of 1789 (which he read to state that Sup Ct only has appellate jurisdiction) and Const Art. 3 § 2.2. Then goes on to declare the Judiciary Act unconstitutional.
-Marshall interprets the judiciary act of 1789 very broadly and then interprets the areas of exclusive jurisdiction very narrowly- this is how he creates the conflict.

-Then defends idea of Judicial Review by reasoning: If supreme court has jurisdiction over all cases arising under the Const, the Court must be able to interpret the Const. Otherwise, the Court’s role would be absurd. Justices swear an oath to uphold the Const. Deciding what the law means is inherently the job of the courts.

-Presidents Jackson and Lincoln did not necessarily believe in judicial review.
-FDR says economic and political security of nation indicates sometimes to ignore Sup.

-Foundation of Judicial Review not respected until 1958 (Cooper v. Aaron)- ct. finally says stare decises…everyone accepts.

*Political restraints on the Supreme Court : May Congress Strip the Court of Its jurisdiction?
*Checks on Judiciary Power:
-Justices can be removed for “treason, bribery, or other High Crimes.” But none ever

have. Federalist Judge- Justice Samuel Chase was impeached by House but not by Senate.

-Art V allows for amendments (but very hard)
-Jurisdiction limiting (see below)
-size of the Court (done 6 different times 5-10 people)
-Ct. selection process.
-Set the term of the Court
*Jurisdiction limiting

-The Sup Ct has original jurisdiction (restated in 28 U.S.C. 1251) as follows:

1. Original and exclusive jurisdiction of all controversies between two or more states.
2. Original but not exclusive jurisdiction of:
a. All actions or proceedings to which ambassadors, other public
ministers, counsels, or vice counsels of foreign states are parties;
b. All controversies between US and a State; and

c. All actions or proceeding by a state against a citizen of another state or against aliens.

-Sup Ct. has appellate jurisdiction of all other cases arising under the laws or const of the US.
-Art. 3 § 2 cl. 2, says Cong can make “Exceptions” to the supreme Court’s appellate Jurisdiction.
-“Exceptions” power cannot be exercised if (1) it would interfere with “core” or “essential” functions of the court. (Exceptions cannot destroy role the Sup ct in Const. plan) or (2) it would impair the rights of litigants.
-So the way this has played out is that congress can pass an act which says “Supreme Court you can no longer hear type A cases on appeal” and this Act will be ok, and Supreme Ct won’t be able to hear these cases. (Unless Ct can find that Act is unconstitutional or cases can somehow be rooted in Sup Ct. original jurisdiction). Cong. Can’t take away original jurisd.

-Example: Congress passes law to allow Sup ct to hear habeas corpus cases and then repeals this act. Sup Ct can no longer hear habeas cases. People can’t use this act to be able to appeal habeas corp. (Ex Parte McCardle).
-Pledge Protection Act- (H of R passed, but S. did not) denied Sup Ct. jursid to hear pledge cases.
-Marriage Protection Act- barred ct from hearing cases on appeal to overturn the defense of marriage act. If passed would have been ok to do.
-Can’t just say “Sup Ct” you can’t hear appeals of habeas corpus anymore b/c this is rooted in original jursid. (Yerger & Felker).

*Supreme Court Authority to review state court judgments
*Supreme Court has the power to review state court decisions regarding federal issues. § 25 of Federal Judiciary Act of 1789 allows for Supreme Court review of final decisions of the highest state courts based upon claims regarding federal law or constitution. (Martin v. Hunter).
*When Justice Story created this he made the decision based upon:
(1) harmonious interp of law is important

(2) jursid of fed courts as described by Art. III does not emanate from the court a cause of action starts in, but from the type of case it is
(3) Const by its nature and in other places reduces state sovereignty
(4) uniformity was intended by framers
(5) supremacy clause argument
(6) const proceeds from the people, so the state can’t say we didn’t agree when we signed the treaty because it’s implicit that the citizens ratify a treaty
(7) framers intended Sup ct to be the final arbiter of state cases implicating federal issues.

*Sup Ct has the power to review state ct decision regarding federal issues irrespective of who the parties are; can take fed criminal cases as well. (Cohens v. VA).
*Sup Ct can take federal questions in both civil and criminal cases.
*There have been attempts to get rid of § 25. (1) nullification movement- said states could nullify an amendment they didn’t think comported with Const. (2) interposition movement- if a state doesn’t like a sup ct decision they could just not acknowledge it in that state.
*Current doctrine in practice—

-Adequate and Independent State Grounds: A decision of a state ct is not reviewable by the Sup Ct if that decision addresses both state and federal questions and the state ground alone is sufficient to sustain the state court’s decision.
-State ground must be both adequate and independent
-The existence of this doctrine recognizes that state rts can be broader than Fed rts

-What is adequate:

-Adequacy of state substantive grounds: if it fully supports the result and does not conflict with the US const, fed s

dividual who enjoys a particular env’t can have standing if env’t would be harmed.

-Exceptions: widening zone of interest. Bennett v. Spear; Flast v. Cohen.
-Taxpayer Suit= Flast v. Cohen “double nexus test”-taxpayer may have standing

as a taxpayer if he can prove- (1) logical link btwn law and tax enacted (2) exercise of gov power exceeds some specific limitations- rt is violated. A taxpayer can bring an establishment clause challenge.

*Mootness: The usual rule in fed cases is that an actual controversy must exist at all stages of appellate or certiorari review, and not simply at the initiation of the action.

-Exceptions: (1) Issues involving events of short duration (pregnancy, elections, economic strikes, etc) are not necessarily moot if the issues are “capable of repetition, yet evading review” (2) Criminal cases are not moot even though the ∆ has served his sentence or paid his fine, if there are any collateral consequences of conviction, e.g. loss of civil rights or damage to reputation.

*The Sources and nature of the national legislative power

*Const grants specific powers to the fed gov; the rest are retained by the states.
*Constitutional boundaries of separation of powers:
-Art I & II= powers of fed gov
-10A reserves all others to sts
-Art I § 10- bars sts from: treaties, coining $, etc.
*Enumerated powers- written down- and “sphere of power” not just what is specifically written.

-Art. I § 1 lodges all legis power in Cong. This is the power to make laws and to do all things that are necessary to enact them (such as to conduct investigations and hold hearings, etc).
-Sphere of powers like “tax, regulate commerce, etc.” includes power to incorporate a bank…(McCulloch v. Maryland).
*Implied powers- in order to execute enumerated powers…found in “necessary and proper clause.” (McCulluch v. Maryland). Arguments for this:

1. Necessary and proper clause- necessary is broad-(if wanted strictly necessary then of course proper and no need to say this therefore must be broadly necessary). Is not “absolutely necessary.” n
2. In Art. Of Confed. had words “expressly enumerated” here under const “expressly” omitted, therefore must have assumed others not expressly stated ok too
3. Also say it’s a const. not a legal code—it is only a great outline of fed powers.
4. Art. I § 9 not be necessary.
5. In the interest of the nation to allow for necessary and proper.
6. Necessary and prop clause found in a section of the const granting fed powers not restricting them.

*Also, states cannot tax federal government entities: arguments behind this:
1. power to create implies power to preserve (fed gov has this)
2. power to tax implies power to destroy
3. power to destroy incompatible with power to preserve
4. where incompatibility exists fed gov wins

*Congressional Definition of Federal Judicial Power