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Constitutional Law I
University of California, Hastings School of Law
Obasogie, Osagie K.

Constitutional Law – Obasogie – Spring 2013


A. Textual constitution binds the future

a. Convenient to establish gov’t

b. Stands in the way of current majorities—opposite the notion of democracy

B. Circumvent the Const

a. [1] Amendment Process

b. [2] Interpretation

C. Representative Democracy > Direct Democracy [Framers]

a. Representation refines and enlarges public views via passing thru chosen body

b. Less likely to sacrifice temporary/partial considerations

c. If opposing interpretations of the const, resolve thru the ballot box

D. 2nd Amend: Bear arms: (2) views

a. [1] Confers individuals to have guns by all prns for (non-)military purposes

b. [2] Confers right that is limited to military purposes, held by ppl collectively—no right to hold themselves

i. 2008: ct chose [1]

ii. 1st Amend clearly confers individual rights


A. Articles of Confederation:

a. States retained sovereignty

b. Congress had power to determine war/peace, coin $

c. Missing:

i. No power to tax

ii. No power to regulate commerce

iii. No judiciary/executive

iv. No bill of rights

d. Failure to create uniform gov’t

e. Bicameralism: divides Congress into 2 branches

B. Madison’s Problems w/ Articles

a. States didn’t respect the articles, acted as their own gov’ts

b. Trampled over other states’ rights, federal authority

c. Multiplicity/conflicting of laws across states

i. Madison: stronger federal gov’t to compel states to do the right thing

C. Classic Republicanism

a. Civic virtue: we should subordinate private interests for the public good

b. Town hall = prototypical idea

D. Antifederalists

a. New expanded const would exclude ppl from public affairs

i. Opposed to expansion of national gov’t (Madison’s view)

b. Encourage ppl to be passive and not engage w/ politics

i. Opposed remote/distant gov’t

c. Ppl stay home and leave governing to reps

i. Representation removed the ppl from the political process

d. Const overemphasized commerce and would lead reps to not genuinely rep ppl’s interests

e. Believe ppl can overcome self-interest

E. Madisonian Republicanism [forced via pressure from antifeds]

a. Natural reps would conceive their role more broadly

b. Represent constituents and keep public good in mind

c. Rethink civic virtue thru reps

F. Federalist Papers—propaganda to sell idea of new const

Federalist No. 10: Main problem of government = factions, but they can be controlled.

· Faction: small groups driven by self-interested passions that are adverse to the public interest

· Large source of factions = unequal distribution of property

o Modern faction: Occupy movement

· Madison: factions cannot be eliminated, but effects can be controlled thru…

o [1] Representative Gov’t: refine/enlarge public views via screening them thru chosen body

§ Consolidating the public voice

§ Put most virtuous in charge of public good

o [2] Large Republic: each rep chosen by greater # of ppl, more difficult for fringe politicians to seize power

§ Diverse interests prevent a tyranny of the masses

§ Smaller more likely to be overtaken by self-interested group

Federalist No. 51: Self-interest (failures in representation) can be controlled thru system of checks and balances.

· Madison: ppl are self-interested/ambitious by nature

o Remedy: Separation of Powers

§ Each part of gov’t is independent of the others and can check each other

§ Federalism: distribution of power btwn federal and state gov’ts

· Checks & balances: prevent…

o Factionalism: division of power prevents misuse

§ National: everyone rep’d in the HoR

§ Bicameralism

§ Federalism

§ 2 party system

§ Horizontally (3 branches of fed)

§ Vertically (state v fed): federalism

o Congress controlled thru elections [indirect]

· States: flexibility, experimentation, accountability, diversity


A. Judicial Review

a. Judicial mechanism by which cts invalidate decisions of Congress & Pres

i. Subject only to const amend process

ii. Congress and Pres regarded as more acctable to citizenry than federal judges

b. Role of judiciary to say what the law is [Marb v. Mad]

c. Doctrine of judicial review has no basis in the const, Marshall made it up

i. Rationale for judicial review

1. Supremacy clause: const (fed law) = supreme law of the land

2. Inherent in judges’ duty: this is what judges do regularly

3. Necessary inference from a written const

4. Granted Art III§2 jxn: judicial power to review const exclusive

5. Judges oath: to interpret the const

B. Problems w/ judicial review:

a. [1] Countermajoritarian difficulty: judges exercise judicial review—not directly elected by the ppl, least accountable to the ppl has the most power to determine scope/meaning of const.

i. CJ: treats judicial review [JR] as textual/mechanical process, judges simply apply certain rules—discerened from the written const—to facts

ii. C/A: appointment process lends some accountability

b. [2] Intertemporal difficulty: const trumps all when there is a conflict, even current elected reps

i. Best expression of the will of the ppl: Doc written in 17th century OR Congress in present time = Const!

C. A.I: Congress

D. A.II: Pres

E. Art III: Judiciary

a. §1: est SCOTUS and power of congress to create lower cts

b. §2: est SCOTUS jxn over all cases arising under const/fed law, controversies btwn states, citz of diff states

Federalist No. 78

· Const is and must be regarded by the judges as fundamental law

· Const ought to be preferred to the statute

· Role of judiciary to adhere to the const and disregard statute if its inconsistent

Marbury v. Madison (1803): The court invents judicial review to interpret the law/const, declare acts of Congress uncosnt!


Adams: outgoing federalist president. Attempted to pack cts w/ federalists. Docs for commission for judges signed, never delivered. Sec state = Marshall, becomes CJ [decides this case]. TJ: incoming republican president, Refused to deliver the docs. Outgoing attempts to force TJ and Mad to deliver Adams late appointments, they refuse. Act 1789 allow claim to be brought directly before SCOTUS [granted original jxn]


Whether SCOTUS can force the deliverance of docs.


1] Act of congress must conform to the const, cannot change or be in conflict w/ it

2] Judiciary has exclusive power to interpret the const: “emphatically the province and duty of judicial dept to say what the law is” [JUDICIAL REVIEW]


Once signed/sealed = complete. SCOTUS: cannot force TJ to deliver the forms, he can only be criticized politically—re appointments. Not a political issue, but a legal one. Vested legal right, role of judiciary. Writ inappropriate. Legal remedy yes, role of judiciary. Remanded go thru appellate reviews, no original jxn.

SCOTUS does not have original jxn over this case; Judiciary Act of 1789 [grant of original jxn] = unconst, attempted to grant SCOTUS original jxn here—cannot amend/supersede the const.

Judicial Review: no textual basis in const; necessary bc of 1] supremacy clause (const = supreme, cts have JR), 2] essence of judicial duty (judiciary say what the law is), 3] necessary inference from written const (cant expand cts original jxn), 4] ct’s grant of jxn (duty to adjudicate), 5] judge’s oath (violate oath to enforce law that is unconst).


SCOTUS will not force TJ to deliver docs, power of judicial review created. Jud Act 1789 = unconst bc Congress cannot allow/modify SCOTUS original jxn beyond enumeration.

· Duty of judiciary to say what the law is

Martin v. Hunter’s Lessee: SCOTUS has appellate jxn over const issues tried in state courts.


M=British w/ land that is confiscated by VA. M arg: treaty prohibited such actions. H=US citz to receive the land from VA. TC: [VA] said land belongs to M cuz treaty; appeals: reversed—to H.

SCOTUS: reverse, remand—instruction to enter judgment for M, VA appeals refused! VA claims to be sovereign entity. VA arg: clearly stated in the const that powers given to fed are enumerated, all others reside w/ states


Whether SCOTUS has appellate jxn over const issues decided in state cts.


6th Amend: const, laws, treaties of the US are supreme law, judges all bound thereby

Federal exclusive jxn: const, laws, treaties, ambassadors, public ministers, admirality, maritime jxn

§25 Judiciary Act: placed 1 sovereign above another. VA challenges as unconst.

Art I §10: limits state sovereignty


SCOTUS: has appellate jxn of state ct decisions re const issues; st cts will invariable hear cons

s good

d. No rzn to give deference to the distant past

i. Past generations have no monopoly on wisdom

H. Madison: Steady Const

a. Stability of the const is one of its great virtues

b. CA state const: altered 500+ times

Ex Parte McCardle: The ct may remove the cts’ appellate jxn if [1] altering own act + [2] alt routes*


McC published articles: libelous, disruptive of peace, incite insurrection re legitimacy of reconstruction and federal gov’t’s presence in the south post-civil war. McC habeas act gave him power to bring habeas petition to SCOTUS, used to challenge const of reconst. TC: McC lost. Appealed under 1867 act, SCOTUS appellate jxn. Congress feared that the case threatened entire reconst effort, repealed 1867 act in yr 1868.


Can Congress alter appellate jxn of the ct


Art 3 § 2 Cl 2: exceptions clause: congress allowed to alter ct’s appellate jxn.


Ct upholds repealing 1867 act. Repealing the act only closes 1 avenue, could’ve been brought to SCOTUS via alternative means. Here: Congress repealing their own act. Different from Marbury, congress’ attempt to change SCOTUS’ original jxn. Do not inquire as to motives of the legislature.


Congress can alter SCOTUS appellate jxn to hear P’s claim

Note: Current proposals to limit SCOTUS jxn cite ExPMcC


A. Judicial power extend to enumerated cases/controversies

a. SCOTUS cannot rule simply bc they want to

b. No advisory opinions:

i. Keep cts out of legislative process, conserve resources, concrete not hypo

c. No political Qs

d. Individual Ps must have standing w. some personal stake in the controversy

e. Ct cannot address issues that are not premature (ripe) or are moot

B. Rationale for Restrictions

f. Judicial restraint: limit occasion for judicial intervention into legislative/exec process

g. Ensure constitutional issues resolve concrete cases: not abstract/hypos

h. Make sure cases decided and resolved on behalf of injured parties, better than others’ views

C. Standing: Constitutional vs Prudential

i. Whether P is entitled to have the ct decide on the merits of a case

j. Constitutional: set of stds imposed by constitution Art III, mandatory

i. [1] Injury in fact

1. Sufficient threat of future injury: must be real and immediate, not speculative or hypothetical

ii. [2] Causal link btwn D’s unlawful conduct and injury

1. Simply cts assessment of the underlying claim

iii. [3] Redressable by judgment for P

k. Prudential: self-imposed restraint by the ct, Congress can override by statute

i. No decisions on general issues, better suited for other branches

ii. No 3p suits, only where P has suffered

iii. Party may not sue as a taxpayer common injury to all taxpayer

iv. P’s injury must fall w/in the zone of interest: interest protected by the law

D. Ripeness: prevents premature cases

l. Cases that are NOT ready to be decided—too speculative/remote

m. Ex: criminal statute challenged before prosecute anyone

E. Mootness: prevents a P w/ no stake from suing—too late

n. Events that occur after litigation starts take away P’s stake in the case

o. Roe v. Wade [abortion] not moot cuz capable of repetition

p. Ex: suit for discriminatory admissions brought during one’s last year of schooling

i. Voluntary cessation of allegedly unlawful conduct does not make a case moot; D could just revert to old ways later on