Fundamentals of US Law Outline
Instructor: William H. D. Fernholz
Semester: Summer 2017
Module I: The Constitution and the judiciary
Class 1 – Introduction to the US Constitution (pg. 138 to 158)
Constitution
In May 14, 1787 a Federal Convention at State House in Philadelphia took place (quorum of 7 States on May 25)
Drafted an entirely new frame of government – no Confederation articles anymore
39 States signed the Constitutions
Adopted in September 17, 1787
Entered into effect March 4, 1789
The distribution of the Constitution is as follows:
Separation of Powers Articles:
Article I – Legislative Power (10 sections)
Article II – Executive Power (4 sections)
Article III – Judicial Power (3 sections)
Principle of federalism:
Article IV
Article V – Amendment of Constitution
Article VI
Article VII – Ratification
Amendments
Constitution was changed 27 times to include, changes can be divided in three main categories (27 Amendments)
Individual Rights
Bill of Rights (1 to 10)
Equality Rights (13-15), after the Civil War
Elections and Terms & Conditions of president and vice-president
Voting/Suffrage
Everyone above 18 years
Free slaves
Women
Residents of Washington
4 other amendments
Duties and powers
How is he chosen?
How long does he serve?
How can he be removed?
President
Executive power is vested on him
Commander in chief of the army and navy, and of the militia
Grant pardons (except cases of impeachment)
Make treaties
Appoint ministers and consuls
Qualifications:
Natural born citizen
35 years
14 years a resident of the US
4 years.
Can be removed by Impeachment for, and Conviction of Treason, Bribery, or other high Crimes and Misdemeanors.
Resign
Or inability to act (Vice President and majority of executive can send a declaration that he is unable to serve – Congress determines)
Vice President
President of the Senate, but shall not vote, unless they be equally divided
4 years.
Can be removed by Impeachment for, and Conviction of Treason, Bribery, or other high Crimes and Misdemeanors.
House of Representatives
Assemble at least once in every year on first Monday in December
Passage over veto
Sole power of impeachment
*Powers:
Taxation
Borrow money
Regulate commerce
Naturalization and bankruptcy
Coinage
Patents and copyrights
Post offices and post roads.
Counterfeiting
Constitute inferior tribunals to the SC
Punish felonies on the High Seas
Declare War
Raise and support armies
Navy
Militia
All necessary power
*Add the ones below.
Chosen every 2 years by the people of the several states.
Qualifications:
25 years
7 years of US citizenship
Shall be inhabitant of that State in which he shall be chosen
Elections are prescribed in each state by the legislature. Congress may alter such regulations.
2 years.
When vacancies happen, executive shall issue writs of election to fill them.
Can be removed by Impeachment for, and Conviction of Treason, Bribery, or other high Crimes and Misdemeanors.
Senate
*Same than above.
Trial of impeachment
Prohibited powers:
Migration or importation of persons
Habeas Corpus
Bill of attainder
Capitation or direct taxes
Tax on exports from state
Preference of ports
Expenditures of public money
Titles of nobility
Two senators from each state.
Chosen by the Legislature for 6 years.
Qualifications:
30 years
9 years of US citizenship
Shall be inhabitant of that State in which he shall be chosen
Elections are prescribed in each state by the legislature. Congress may alter such regulations.
6 years maximum.
But, senators are divided in classes and shall
Can be removed by Impeachment for, and Conviction of Treason, Bribery, or other high Crimes and Misdemeanors.
Supreme Court of Justice
What is the process for changing the Constitution? How does the United States amend the Constitution?
Article V
Congress when 2/3 of both Houses deem it necessary OR 2/3 of the Legislatures of several States (PROPOSAL)
Calling of Convention
Ratification of ¾ of Legislatures of the States OR of Convention(RATIFICATION)
***If possible repeat quiz on US Constitution.
Judicial Review of Constitutional Issue: The Constitution as Law
Courts interpret and enforce the US Constitution. Said practice began in Marbury v Madison.
Marbury v Madison (Supreme Court of the United States, 1803)
Parties
Plaintiff.- Marbury and 3 other appointed justices.
Defendant.- Madison (Secretary of State)
Facts
President John Adams appoints Marbury and others (42) to the newly created Justices of Peace Division of Columbia (judicial offices)
Senate confirmed the nominations
President sealed the papers
Papers (commissions) were not delivered before Adams’ term expired
President Thomas Jefferson comes into office and orders Madison to refuse the delivery of the commissions
Marbury wants the delivery of the commission
Marbury sues Madison in 1803directly at the Supreme Court
Marbury asks judiciary to issue a “writ of mandate”
An order to a lower court or officer to complete a ministerial act
Madison never appears in trial
Issue
Court is faced with three questions:
Does Marbury have the right to have the commission delivered to him? Yes.
Is there any remedy for the violation of this right? Yes.
Does the Supreme Court have jurisdiction to issue a petition for “writ of mandate”?Does the Supreme Court have the authority to review acts of Congress and determine whether they are unconstitutional and therefore void? Marbury loses on this question.
Is section 13 of the Judiciary Act in conflict with the Constitution?
According to article III, section 2 à a case must come to the Supreme Court on appeal from a lower court
We should have stated what the Constitution means and what it does not. Marshall argues that if they were to say section 13 of the Judiciary Act is in conflict with the Constitution they would have answered to the question of who has the power to say what the Constitution mean and establish the Constitution is the “paramount law of the nation”.
Rule
When a commission has been voted upon, signed and sealed, but not delivered; a right to the commission is constituted if favor of the commissioned.
Where there is a right, there is a remedy.
Judiciary is supreme in the exposition of the law of the Constitution. Attending to the provisions of the Constitution, which is supreme law of the Nation, the Court has no jurisdiction over this matter, and Judiciary Act is unconstitutional.
Analysis
Court examined three questions:
Does Marbury have the right to have the commission delivered to him?
To withhold commission is an act deemed by the Court “not warranted by law”, but violative of a vested legal right
If the commission was voted upon, signed and sealed it MUST be delivered.
Is there any remedy for the violation of this right?
Statute requiring Secretary of State to apply a seal to the commissions and deliver them created a specific duty and Marbury is entitled to the remedy.
Where there is a right, there is a remedy.
The delivery of the commission was a mere ministerial duty, there is no discretion.
Does the Supreme Court have jurisdiction to issue a petition for “writ of mandate”?
Power of the Court under the 1789 Judiciary act, section 13. Is it an issue of the Court?
Supreme Court can’t issue a “writ of mandamus” under article II, section 2 of the US Constitution
“SC shall have original jurisdiction in all cases affecting ambassadors, […] in all other cases SC shall have appellate jurisdiction”
Original jurisdiction à functioning as a trial court (like in this case Marbury applied for the “writ of mandate” to the SC as a trial court
Ambassadors à could we argue Marbury as a public official is an ambassador? Difficult argument.
Appellate jurisdiction à court argues that this particular issue should have come to the SC as an appeal and not in original jurisdiction.
The Supreme Court has the authority to review acts of Congress and determine whether they are unconstitutional and therefore void.
The Constitution states that “the Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction.” If it had been intended to leave it in the discretion of the Legislature to apportion the judicial power between the Supreme and inferior courts according to the will of that body, this section would be entirely without meaning. If Congress remains at liberty to give this court appellate jurisdiction where the Constitution has declared their jurisdiction shall be original, and original jurisdiction where the Constitution has declared it shall be appellate, the distribution of jurisdiction made in the Constitution, is form without substance.
Judiciary Act 1789
Tries to establish the “writ of mandate” within SC’s original jurisdiction
The act was passed the same year the Constitution was written, by the same people!
It is unconstitutional
They wrote in the Constitution what would specifically decided by court in original jurisdiction, therefore Judiciary Act can’t establish that the “writ of mandate” is within Court’s original jurisdiction – Unconstitutionality
Constitution is the paramount law
Phraseology of Constitution confirms this principle.
Petition of “writ of mandate” directly to SC is therefore dismissed.
Could they have interpreted the statute and decided it was possible to pass a “writ of mandate” in appellate jurisdiction and sent it to a lower court for decision?
Judicial Review
Th
rmissible discrimination.
The tax divides the eligible voters of the State into two classes: those who can afford the tax and those who cannot. As such, it invidiously discriminates against those who cannot afford the tax.
Holding
The judgment is reversed.
Notes
Dissenting opinion by Justice Black:
Even though he dislikes the policy of poll tax, he considers it is not enough reason to hold it unconstitutional
Only the legislature, not the courts, can strike down a poll tax.
Dissenting opinion by Justices Harlan and Stewart:
Only 4 states continue to collect poll taxes
XIV Amendment bans poll taxes at federal level, if the states wanted to ban poll taxes they would have adopted the amendment, which they did not.
Supreme Court has overstepped its bounds by striking down the poll tax.
Relevant questions:
What does “checks and balances” mean?
By creating three branches of government, the delegates built a “check and balance” system into the Constitution. This system was built so that no one branch of our government could become too powerful.
Each branch is restrained by the other two in several ways. For example, the president may veto a law passed by Congress. Congress can override that veto with a vote of two-thirds of both houses. Another example is that the Supreme Court may check Congress by declaring a law unconstitutional. The power is balanced by the fact that members of the Supreme Court are appointed by the president. Those appointments have to be approved by Congress.
What does “judicial review” mean?
Judicial review is the power of a court to review the constitutionality of a statute or treaty, or to review an administrative regulation for consistency with either a statute, a treaty, or the Constitution itself. The United States Constitution does not explicitly establish the power of judicial review. Rather, the power of judicial review in the United States has been inferred from the structure, provisions, and history of the Constitution.
Why does Marbury have a “right” and “remedy,” and yet still lose his case?
Because the Judiciary Act provision in which Marbury was basing himself to request the “writ of mandate” was unconstitutional; therefore, the Supreme Court had no jurisdiction to issue a petition for “writ of mandate”.
Can you explain Chief Justice Marshall's reasoning for why the Court lacks jurisdiction in this case, even though the Judiciary Act of 1789 grants jurisdiction?
The Constitution states that “the Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction.” If it had been intended to leave it in the discretion of the Legislature to apportion the judicial power between the Supreme and inferior courts according to the will of that body, this section would be entirely without meaning. If Congress remains at liberty to give this court appellate jurisdiction where the Constitution has declared their jurisdiction shall be original, and original jurisdiction where the Constitution has declared it shall be appellate, the distribution of jurisdiction made in the Constitution, is form without substance.
Is there an alternate way that Chief Justice Marshall could have interpreted the Judiciary Act that would have avoided the constitutional question?
They could have interpreted the statute and decided it was possible to pass a “writ of mandate” in appellate jurisdiction and sent it to a lower court for decision.
Can you speculate why Chief Justice Marshall decided the case as he did?
With this opinion and decision, Justice Marshall won the battle regarding who has the power to interpret the Constitution. He won the battle against the idea held by Jefferson that the Court had no more power than the other branches to interpret the Constitution. For Marshall, the decision made was a victory of the Judicial Power.
