Constitutional Law I Outline

1.                Judicial Review
a.                      Hierarchy of American Laws
                                    i.                                 Basic stuff
1.                                  Hierarchy of American law:
o                                         US Constitution
·                                                US Statutes and Treaties
§                                                      Federal regulations–made by administrative agencies
·                                                            Federal common law
·                                                                  State Constitutions
·         State Statutes
·      State regulations
·         State common law
2.                                  Five types of legal arguments (five categories of what the law is):
o                                         Text
o                                         Intent
o                                         Precedent–formal judicial opinions (interpret written law/write common law)
o                                         Tradition–dealing w/ behavioral patterns–not what court says, but what people do
o                                         Policy–look to consequences/future–“here’s what’s going to happen if…”
·                                                Are those consequences consistent or inconsistent w/ policies and values those laws stand for
·                                                Often considered two-step process
§                                                      Factual prediction
§                                                      Evaluate judgment
3.                                  Legal reasoning in any particular case:
·                                          Starts w/ certain basic assumptions–consist of basic premises of legal reasoning
·                                                Ex–Judge cites a certain text, assuming that reference to text is an appropriate place to start
·                                                They then refer to intent–intent of people AT THE TIME THE DOCUMENT WAS CONCEIVED is every bit as important as the text–intent is a legitimate method for interpreting the legal document
·                                                Court cases/Precedent is good law and is powerful and binding
·                                          From these assumptions, reasoning starts–logical in form
·                                                Cannot really go back from the 5 types of legal argument
·                                          These are useful to keep in mind when writing exam answer–often deals with specific cases–you do want to know these cases b/c the cases are binding and you need to be able to follow/distinguish them
·                                          Need to make precedent and policy arguments on exam something fierce
                     Marbury v. Madison
o                                   First half–distinguished between discretionary actions and ministerial actions
·                                          Significance of distinction
§                                                The executive is allowed to make some discretionary decisions
§                                                It is a ministerial act which the law enjoins on a particular person for a particular purpose
o                                   Marshall makes all three textual arguments, powerful intent arguments, and policy arguments
·                                          Three kinds of textual arguments
·                                                Plain meaning
·                                                Intratextual arguments
§                                                      When lawyer uses one part of a legal document to interpret another part of the same legal document
·                                                Canons of construction–been used for centuries, some ascribe them to common sense
§                                                      Expressio unius est exclusio alterius–to say the one is to exclude the other
§                                                      Ejusdem generis–identification of something in a rule implies similar treatment of other similar objects–purpose of rule would be the same despite the animal
§                                                      This can be argued both ways in Marbury
o                                   4 basic rules of Constitutional doctrine laid down in Marbury v. Madison:
o                                         The Constitution is a law
o                                         The Constitution is a supreme and paramount law
o                                         When two laws are in conflict, the courts have to decide which of those two laws controls–Constitution makes statute in conflict with it void; and
o                                         The Supreme Court has the power of judicial review–they can declare laws unconstitutional
                     Martin v. Hunter’s Lessee
o                                   Issue–Does Supreme Court have jd to review state court decisions?
o                                   State legislatures have plenary power–general power, does not have to be in the Constitution
o                                   Both federal and state constitutions establish government, put limits on government powers, recognize rights
o                                   Separation of Powers and Federalism each deal w/ power questions and individual rights
§                                          In exercise of those powers, they are not permitted to transcend individual rights
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