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Constitutional Law I
University of California, Hastings School of Law
Short, Jodi L.

Professor Short – Con Law I – Spring 2014

Origins of the Constitution

1. Provisions of the Constitution (authoritative legal text produced through a legal process)

a. Create institutions of gov’t

b. Delineate spheres of power for the institutions

c. Procedural document under which institutions operate

2. Created to replace Articles of Confederation b/c of its perceived limitations:

a. Articles of Confederation

i. Article Highlights:

1. Created confederation of sovereign states, but did NOT confer sovereign powers on USA

2. No independent presidency

a. Pres. was a figurehead (had very little independent power)

3. Gave central gov’t very limited power

a. Left religion, commerce and taxes up to the states

4. Gave gov’t NO taxing power = big problem for raising revenue for war

5. USA wasn’t able to act as one voice w/other nations à was chaotic

b. May 1787, Constitutional Convention convened in PA to revise/replace the Articles

i. Attended by 55 delegates from every state

ii. Votes were cast by those who could show up (not very legit)

iii. Dispute was appropriate balance of power b/t states and FG

1. Wholly nat’l gov’t w/reps chosen by the people?

2. System of federalism like that embodied in the Articles, but w/somewhat expanded powers for the central gov’t?

3. Delegates compromised to create a system that was a mix of both

a. Solution = House of Reps elected by the people and the Senate elected by the State

b. Article I § 8 à Powers of Congress

iv. Ratification process highly political contest b/t Federalists & Antifederalists

1. Federalist Papers = short essays espousing issues in the Const.

2. Made concessions to Antifederalists by adding the Bill of Rights after ratification

v. Const. effective (replaced Articles) on 3/4/1789; by 1790, ratified by all 13 states.

3. How does the Const. address factions?

a. Checks and balances system

i. For gov’t to act, at least 2 branches must agree (law requires passage by Congress and signature of Pres. assuming he does not veto)

b. Const. lists the length of terms and manner of selecting officeholders

i. Art. I §2, Cl. 1 àHouse of Reps chosen by people

ii. Art. I §3, Cl. 1 à Senate selected by state legislatures

c. Protects individual rights

i. Ex: Art. I §9 and 10 à No ex post facto law or bill of attainder allowed

4. Federalist # 10 à Factions

a. Factions = Group of citizens w/interests contrary to the interests of the public

b. Why they arise = Disparities in wealth b/c it leads to unequal distributions of ideologies (landowners)

c. Problem in democracy b/c majority could get its way and do things contrary to public good

d. Solutions

i. Large republic à Widely dispersed group makes it hard for people to come together

ii. Representative gov’t à Reps less likely to sacrifice ideals of people who elected them

5. Federalist # 51 à Checks & Balances

a. Discusses problem of a FG aggrandizing its power and impinging individual liberty

b. Const. addresses this problem w/double-layer of protection:

i. Gives each dep’t its own sphere of authority

ii. Limits ability of members of one branch to control members of another branch through appointment or compensation

Authority for Judicial Review

[Art. III doesn’t expressly grant this]

1. Marbury v. Madison (1803)à Established authority for judicial review of executive and legislative acts

a. Reviewability of Executive Actions:

i. Unreviewable if political (where executive officers are executing the constitutionally invested discretion of the president [veto, appointments] – only check is the political process)

ii. Reviewable if ministerial (where a specific duty is assigned to an executive officer by law [Congress passed a statute], AND individual rights depend on performance of that duty)

b. Art. III, §2, Cl. 2 Establishes Ceiling of JB’s jxd

i. Congress can’t expand jxd beyond what’s specified in Art. III

c. Judicial Review of Legislative Acts (What Marbury’s known for)

i. Court has power and duty to refuse to enforce laws or gov’t actions that violate the Const.

1. Ex: Marbury à Declaring unconstitutional a provision of fed law (§13 of Judiciary Act)

2. WHY Marbury assigns the role of reviewing constitutionality of laws to the Judiciary:

a. Separation of Powers

i. Const. imposes limits on LB and limits meaningless unless subject to judicial review (but could be seen as judicial interference)

ii. JB more insulated from majoritarian politics à Best suited to interpret and enforce anti-Majoritarian Const.

1. Judges have lifetime tenure

2. Judges appointed one at a time as vacancies arise (1 administration can’t appoint a maj.)

iii. At this time, spheres of power weren’t well delineated by Const. à Then how do we figure out the boundaries here?

1. Court says they’ll figure it out = dangerous b/c what if interpretation was wrong?

b. Constitutional Supremacy

i. Const. > Laws made in pursuance of it BUT

1. This reason for why judicial review is appropriate is taking it a step further than it needs to go b/c this doesn’t mean that the Judiciary has the power to invalidate laws

2. Supremacy Clause could’ve been viewed as a declaration that Congress should only enact laws if they’re authorized by the Const.

c. Art. I

i. Congress can only pass laws it has power to and if they transgress limit, the law is void

1. If the law’s void and Court is required to follow it, it’d be ironic

a. BUT, this doesn’t make it clear that the Court would be the one to regulate this (although Marshall thinks the answer is obvious)

3. Federalists lost election of 1800 and lost control of House of Reps

a. 5 days before Jefferson became Pres. Organic Act passed and Adams appointed 42 JOP

b. Federalist-controlled Senate confirmed nominations; Marshall (Adams’ secretary of state and Chief Justice of SCOTUS) signs commissions and Marshall’s brother was to deliver them (but only delivered 38 commissions excluding Marbury’s before Jefferson’s inauguration); Jefferson told Madison to withhold the rest of the commissions and Marbury filed writ of mandamus in SCOTUS to deliver the commission

i. “Mandamus” à order from Court to gov’t officials or lower court to perform a non-discretionary act (required by law)

ii. Marbury claims he had statutory authority found in §13 of the Judiciary Act of 1789

c. (1) 1st Q SCOTUS asked à Does Marbury have a legal right to commission?

i. Yes – Was signed and sealed

ii. Jefferson’s response = No delivery! Steps in the process weren’t completed

1. Court rejects this saying that delivery was merely a custom

iii. Significance in Marshall’s finding of a legal right for Marbury = If he didn’t, case would’ve been over and Judicial

uch Exceptions, and under such Regulations as the Congress shall make” – gives Congress general regulatory power over the Court’s jxd, including the power to expand it

1. Repugnant to Const. to allow Congress to render it form w/o substance

d. Court addresses constitutional crisis it created by addressing the Q whether Court must follow an unconstitutional law

i. Basis for decision?

1. Nothing in Const. explicitly gives the Court authority to declare laws unconstitutional

2. No evidence that Framers had a view on the issue

3. Many other constitutional systems do not have judicial review, but rely on citizens to monitor their reps’ adherence to constitutional ideals

ii. Marshall says answer is obvious (but really, it wasn’t):

1. Const. both defines and limits powers of Congress, thus a legislative act contrary to the Const. is not law: “an act of the legislature repugnant to the Constitution is void” (p.6, para. 7)

2. “It is emphatically the province and duty of the judicial department to say what the law is” – thus, if a law is void, a court must declare it so

3. Const. superior to legislative acts; thus, if Court interprets Const. to be in conflict w/a statute, the statute must yield

4. Requiring courts to uphold a law that conflicts w/Const. would subvert the foundation of written constitutions à Would mean that an act of the legislature which is null and void under the Const. is obligatory

5. Const. explicitly gives courts jxd over “all cases arising under the Constitution” (Art. III, §2, Cl. 1)

5. (3) Advantages of Opinion’s Structure:

a. Dig at Jefferson administration à Put Court in a very powerful position

b. Looked like the Court was declining power, when it really engineered a huge power grab

c. Const. was real à Not just an advisory opinion, but that failure to follow it meant real consequences

6. Post-Script Note à Power to declare fed laws unconstitutional wasn’t used again until 1857 in Dredd v. Scott

Limits on Fed. Judicial Power: STANDING

1. Justiciability Categories à Created by SCOTUS which limit fed judicial power by limiting which matters fed courts can hear and decide (“cases and controversies” – Art. III, §2, Cl. 1)

a. Prohibition Against Advisory Opinions

i. Legislature can’t consult SCOTUS on constitutionality of law before it’s enacted

1. Rationale à Court not supposed to be advice-giver, but to decide concrete issues and controversies

ii. Consequence of prohibition:

1. Wasting time and money

iii. Benefits of prohibition:

1. SOP (keep courts out of legislative process)

2. Saves judicial resources since law may not even pass legislature

3. Helps ensure cases will be presented to Court in terms of specific disputes, NOT as hypothetical legal Q’s