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Constitutional Law I
University of California, Hastings School of Law
Leshy, John D.

Constitutional Law – Outline

Leshy – Spring 2013


– Government’s Power as limited by SCOTUS: # of areas SCOTUS doesn’t speak to (EX: President sending troops to Syria)

– History:

o Articles of the Confederation (1787): Peaceful revolution overturning the Articles à established the U.S. CON (1789)

§ Wanted loose, low-key group of sovereign states (consensus that this failed, so CON was much stronger and more centralizing)

o U.S. CON: Not much has changed, 27 amendments (actually, really 17 b/c first 10 were required in order to be ratified)

§ Origins:

· Virginia Plan: By Madison and the basis of the CON

· 4 Challenges:

o (1) Conflict in interests b/t large, populous states vs. smaller states

§ Solution: Great Corn Promise (Congress = 2 houses)

§ Critique: Senate is undemocratic, graveyard where bills, treaties, & foreign policy go to die

o (2) Balance of power b/t nation vs. states

§ Bill of Rights Ratification

o (3) Issue of Slavery

§ Solution: Northern states = no; Southern states = yes

§ Criticism: Most criticized aspect of CON was to allow slavery

o (4) Creation of executive branch that isn’t too strong but still effective:

§ Presence of Washington for trust in executive branch

§ Change in Interpretation: While the document itself hasn’t changed, how it’s been interpreted has changed

· Principles shape and reshape interpretation (EX: during drafting of CON, voters were white male, 4 million vs. the diversity now)

§ Social Compact: Basic agreement b/t citizens and states to create mutual rights and duties in permanent form (Friedman)

§ Two Crucial Functions of ConLaw: (Friedman)

· (1) Permanent Structure: Sets up and sets out structure of gov’t – rights, duties, boundaries, and limits

· (2) Essential Rights of Citizens: Limits what the gov’t is allowed to do, rights that the state must not and can’t infringe upon

– Criticism of the CON:

o Seidman: Archaic, idiosyncratic, and evil à led to dysfunctional political system

§ 2 Main Interpretations: (irreconcilable)

· (1) “Originalism” – divining framers’ intent

· (2) “Living Constitution” – Reinterpreting the text in light of modern demands

o Very angry response re: article – shows there’s much deference and respect for the U.S. Con still à still need a written document to fall back on

– Different Arguments To Make: Philip Bobbitt

o (1) Historical Argument: The intent of the draftsmen of the CON

o (2) Textual Argument: Drawn from consideration of present sense of the word – requires extrinsic evidence of the text

o (3) Structural Argument: A particular principle or particular result which is implicit in the structure of the gov’t and the relationships that are created by the CON b/t citizens and gov’t

o (4) Prudential Argument: Advancing particular doctrines according to the practical wisdom of using the courts in a particular way (focus on the institution, not the actual issue at hand)

o (5) Doctrinal Argument: Principles derived from precedent or judicial/academic commentary

– Takeaway: “To Form a More Perfect Union” has been debated a lot

– Legal Anchor/Stabilizer: Con more difficult to change, and thus provides a kind of legal anchor or stabilizer of the political system

– Advantages of Federal/State Divide:

o States as Laboratories: Fed gov’t can cherry pick the state policies that work

§ Competition b/t States: States will try to up one another

o States/Cities = Micro-level Management: Can fix small things that nat’l gov’t won’t be able to do (potholes)

o Citizens more active in state/local than nat’l politics: However, w/ advent technology in communication and travels, may not be as true anymore

o Checks and Balances: Also a disadvantage – inefficiency


– Overview: Courts seized judicial review for themselves (Madison v. Marbury), not enumerated or granted in CON à developed gradually from the power vacuum which the Court seized the power from

o TRAP: Concept of judicial review is elastic, judicial review ≠ ConLaw; but judicial review in context of SCOTUS is different à allows SCOTUS to review legislation

§ Court can say they will strike down law under judicial review (but it’s only judicially) à law itself could still technically exist

– Authority for Power: Article III: SCOTUS shall have (1) original jx in cases of ambassadors, public officials and state; (2) appellate jx in all other cases; (3) subject to exceptions & regulations as Congress may prescribe to that appellate jx.

– Judicial Review: 2 Views

o (1) Power of Court to refuse to apply or enforce acts of Congress that conflict with the Court’s view of the Constitution

o (2) Court’s power to review the actions of executive branch administrative agencies, and whether or not constitutional issues are involved

o Political Implications of Madison v. Marbury: Marshall established the Court as an independent check on judicial review – SCOTUS now got to decide the constitutionality of other branches’ decisions

§ Assumed other branches would acquiesce (correct) but not always (ex: Lincoln and Dred Scott: Lincoln didn’t follow with ruling)

– Scope of SCOTUS’ Powers: Reasons for Judicial Review

o Expertise Argument: One doesn’t need to actually be a lawyer to be on SCOTUS. While judicial branch has good lawyers, is reading of CON requiring “legal expertise” or “good judgment”?

o Final Arbiter: Other branches still have options – Final word is CON amendments or court changing mind

§ CON Amendment Process: (Tribe) 10,000 separate amendments submitted, only 27 adopted.

o Judicial Supremacy: Presence of this principle that a judge can reject/nullify/accept

o “Judicial Review as platonic graft on democratic process” (Roche) – while arguably undemocratic, it is a check and a group of wise men who have the task of extracting the truth and chaperoning over the sovereign people and elected officials who act unwisely

When Should SCOTUS Use Their Judicial Review Power?

– Undemocratic Nullification: Arguably, judicial review is inconsistent with democratic principles and “people’s republic”?

o Thomas Jefferson: System based on checks and balances, but Court’s ability to decide on constitutionality of other branches’ actions including their own makes them “a despotic branch”

o Andrew Jackson: Executive and Legislative branches should be able to decide on constitutionality of bills and resolutions; Judiciary Branch shouldn’t be accorded more weight

– Partial Deference: Recognizes that Marbury is slightly undemocratic, suggests that Marbury/judicial review should be used when it’s absolutely black-white against CON

– How much policing should SCOTUS do? Since other branches have ways to police themselves AND judicial branch has no power of enforcing their decisions (limited power)

o Arguments:

§ “People” in the late 18th c adopted the CON giving SCOTUS this power, and the “people” more recently elected presidents and senators who picked and confirmed the Supreme Court Justices to decide these matters.

§ Given the rather attenuated connection to the “people”, SCOTUS, in considering the matter, should give some benefit of the doubt to the Congress, if the CON is not so clear on the breadth of Congress’ powers

– Avoid Constitutional Question – Philosophical Prudence

o SCOTUS should interpret it in a way that avoids the CON Q, b/c the courts should conserve their powers to decide constitutional issues to situations where they have no way to escape the task, in order to avoid unnecessary confrontations with the other branches of gov’t vs. active judiciary

§ EX: Marbury struck down a statute in 1803, next time SCOTUS did that was 1857 (Dred Scott)


– Supremacy Clause: (Art. 6, Cl. 2) à “This Constitution . . . shall be the supreme Law of the Land; and the Judges in every state shall be bound . . .”

o Federal Law is supreme; when there’s a conflict b/t federal and state law, federal law will win

o Binds state judges to the CON, requires state judges to take an oath so not only within state judges’ jurisdiction but obligation to decide CON questions

o Judicial supremacy of SCOTUS to assert judicial authority (Marbury) to apply it uniformly to foundation of ConLaw

federal law that hasn’t been decided yet but should be decided

– Reasons for rejecting Writ of Certiorari:

o Maryland v. Baltimore Radio Show: Justice Frankfurter

§ Not practical for SCOTUS to give reasons for denial (not judicially practical), many reasons why it could be denied (including wanting different issues illuminated by lower courts or waiting for ripening before adjudication)

———————-Federalism – Vertical Power———————-


– Federal Structure and Constitutional Law: Two categories arise

o (1) Substantive Policy Question: What level of gov’t (state/local/federal) has authority under the U.S. CON to act in any given situation?

o (2) Process Question: Which institution of gov’t (e.g. Congress, states, SCOTUS) has final authority to decide substantive policy questions? Should it be policy/statutes by legislatures or by ConLaw via Courts? Both?

– History:

o Articles of Confederation (1787) – minimal nat’l gov’t power and weak nat’l gov’t à produced political crisis

§ Framers set out new central gov’t to allocate sufficient authority to address nat’l problems, but this power would be limited by CON

o Creation of Necessary and Proper Clause: SPLIT

§ Hamilton: “necessary” meant Congress’ powers as “needful, requisite, incidental, useful”

§ Jefferson: Can’t read “necessary” so broadly to nullify effects

– 10th Amendment and Zero Sum Gain:

o Zero-Sum Gain: More power given to nat’l gov’t = less power state gov’ts have – 10th Amendment – Supremacy Clause is just a line that is drawn, doesn’t spell out what/how much states can have

§ Significance of McCulloch: Nat’l power is expressed in broad terms à broad concept and interpreted necessary to mean “convenient to regulate commerce”

§ Counter from MD: States came before nat’l gov’t, so status quo/starting point should be states and NOT nat’l gov’t

· Important! Marshall’s Counter: Ratification of CON came from people (via popular approval), not states


– Article 1, § 8, cl. 18: “The Congress shall have the power to . . . make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

– Test: How is “Necessary” interpreted?

o Is there (1) a rationally related reason to implement; and a (2) constitutionally enumerated power

§ Implied Powers granted by CON to implement Congress’ express powers to create a functional nat’l gov’t

· State Action Can’t Impede valid CON exercise of federal gov’t

– Doctrine of Enumerated Powers: Several “enumerated powers” in Article I support the idea of a nat’l bank, including the power to regulate interstate commerce, to coin money and regulate its value, and the power to tax and provide for the general welfare. (McCulloch v Maryland)

o Nat’l gov’t has no inherent power, must be derived from the CON

o “ Necessary and Proper” not an independent clause: must be tied to an enumerated power in the CON, it is not an independent clause.

– Rational Basis for N+P Clause: A good deal of deference; those arguing that Congress has exceeded its powers have a fairly heavy burden to show lack of the requisite necessity.