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Constitutional Law I
University of California, Hastings School of Law
Faigman, David L.

I.      Two principles
a.     Federalism: division of authority/of sovereignty b/w federal and state gov’t
                                          i.    Division of sovereigns – but overlapped when federal preempts state
                                         ii.    Proponents argue division of authority is not for state sovereignty but for individual liberties – to protect from federal tyranny
                                        iii.    Federalists: proponents of national power
1.    Mason, Monroe, Clinton, Smith, Adams (Samuel), Paine, Henry
2.    Jeffersonian Republicans: Jefferson, Madison, Monroe
3.    Way too avoid corruption to separate powers – “ambition to check ambition”
                                        iv.    Anti-Federalists: proponents of states’ rights
1.    Washington, Madison, Hamilton, Jay, Adams, Marshall, Franklin
2.    Fear federal government tyranny over states and individuals because no bill of rights
3.    Federalist promised Bill of Rights after ratification (1789); (1791)
b.    Separation of powers: purely a federal government problem
                                          i.    Division of power textually defined by Constitution – then further divided
                                         ii.    No actual provision for lower courts – structurally, in 1700s conflicts would go to the states so conflict b/w federal and state structure
II.    Constitutional history
a.    Original intent
                                          i.    Does NOT mean subjective intent of framers to determine what Constitution means
                                         ii.    Look at original intent of ratifiers – public at large
1.    Problem: whose intent, esp. b/c each state ratified
                                        iii.    Federalist papers: rhetorical pieces
                                        iv.    Scalia view: look at generation at time of ratification
b.    Contract between the people
                                          i.    States did not necessarily enter the “contract,” of the Constitution b/c states sent delegates – contracted between the people
                                         ii.    Change from Articles of Federation to Constitution à basic unit of sovereignty in U.S. is the people NOT the states (i.e. sovereignty given to the state, not taken by it)
1.    Practical consequences: can’t discriminate against citizens from other states
c.     Civil Republicanism: anti-federalists believes that people are essentially good and a big national government is the problem
                                          i.    Constitutional conventions may create turbulence but can create more good
                                         ii.    Locality important b/c more opportunity to participate in gov’t if closer
d.    Mob Rule: federalists doubtful of individuals b/c local rule would not be more productive of liberty
                                          i.    Real protection of liberty is ambition checking ambition – faction vs. faction
                                         ii.    Conflict of federalism continues: Civil War; Brown v. BOE
III.   Constitutional Authorities
a.     Text: starting point but never stops with it
b.    Original “intent”/meaning: not intent of drafters, but intent of people during the ratification
                                          i.    Some argue not original intent or words but of the principle
1.    Ex: “equality” in Equal Protection Clause
a.     Would not have included women so no question that they were not a protected class in 1868 but CT updated the meaning in the 1970s to encompass who would be included in the principle of equality
c.     Constitutional structure
d.    Precedent: lower priority b/c you can’t take precedent too seriously or else you’re stuck with old interpretations to determine how to rule
e.    Constitutional facts: empirical arguments
                                          i.    Ex: biological differences b/w children and adults to determine how old you have to be to be considered for the death penalty
f.     Constitutional scholarship
g.    Contemporary values: most J’s will say this is not as important but there are exceptions
                                          i.    Ex. 8th amendment – “cruel and unusual punishment” – we have different interpretations of what is cruel and unusual
IV.   Power of Judicial Review
a.     Two interpretations
                                          i.    Narrow: Judicial function to look at governing law, consider Constitution as relevant source of law, and, in cases of conflicting legal statements, give priority to Constitution
                                         ii.    Broad: Constitution endows Court with power to police the other branches – enforcer
b.    Marbury v. Madison: π was last-minute judicial appointment. Π’s nomination was signed and approved but not delivered before the end of Adams’ administration. Π filed writ of mandamus.
                                          i.    CT asserts authority over executive and legislature
                                         ii.    R: If both the constitution and legislature both apply, former must govern the case. Constitution is fundamental and paramount – an act of legislature repugnant to it is void à courts are bound by constitution to enforce it (applies to both legislature and courts)
                                        iii.    Q1: Does π have a right to the commission
1.    Yes, b/c everything done accordingly
2.    First point where Marshall could have ended the case but continued it
                                        iv.    Q2: Does π have a legal remedy to his right?
1.    Looks at nature of writ applied for – concern with meddling
2.    Political question doctrine: certain acts w/in executive are political acts, and wholly within its discretion w/out legal remedy – way for CT to duck difficult questions
a.     Separation of powers issue – not a federalism issue b/c states have no power to interpret constitution
b.    Distinction b/w ordering executive to effectuate a legal right and interfering with the executive’s political discretion
c.     Fail safe: some questions would arise that CT would not want to decide (vs. CT in Guantanamo deciding the limits of executive power)
d.    Even if executive has discretion, scope is defined by the constitution, and it is the judiciary’s job to interpret the answer
e.    No question beyond judicial review (even if the answer is the executive must decide, judiciary must decide when executive has that right)
                                        v.    Q3: If there is a remedy, is a mandamus from the court sufficient
1.    Does Judiciary Act confers jurisdiction of this dispute – consistent with constitution
a.     JA extends original jx to CT to permit appointed persons to bring writs of mandamus to CT w/out trial or appellate court
b.    CT says Art. III §2 defined jx limits for S.CT, which don’t align with JA
c.     Interpret ambiguities to believe it adheres to constitutional mandate – keeps the case in order to analyze second question
2.    If Judiciary Act does not, does CT have the power to review an act of Congress?
a.     Written constitution argument: but really a blueprint b/c not clear
b.    If Congress attempted to give CT jx, when constitution says no, CT working within it’s sphere to determine what’s right
                                                                                          i.    Coordinate branches of government each have the responsibility to read and interpret the constitution w/in their respective spheres of authority (Madison)
                                                                                         ii.    CT interpreting its own constitutional power
c.     Supremacy Clause – act repugnant to constitution cannot be valid but who is responsible for determining that?
d.    Judges take oath to protect the constitution
e.    Judicial review needed – legislatures would not be as restrained as courts by a written constitution
c.    Counter-majoritarian difficulty
                                          i.    SCT has to gain its legitimacy by the content of its decisions, rather than by virtue of democratic politics (and being elected)
d.    Madisonian Dilemma
                                          i.    The majority should be able to exercise its will in whatever context it wants to do it – that’s a power that’s granted to the majority under the constitution
1.    If SCT were to restrict this power too broadly or in an illegitimate way – this would be minority tyranny b/c it will be frustrating will
2.    If SCT overprotects majority rule – danger of majority tyranny
e.    Ultimate lesson: judicial review from Marbury is a good thing but courts occasionally ruled incorrectly (Dred Scott), and so other branches should be able to rise up and challenge the court
                                          i.    Does Obama have the power and authority to decline to exercise positive law – prosecutorial discretion to determine what to pursue
                                         ii.    President can prioritize laws and ask his justice department to act in a certain way (e.g. U.S. AG does not pursue medical marijuana cases)
                                        iii.    President takes an oath to enforce Constitution – if the president independently interprets the constitution, more latitude
V.    Review of State Court Decisions
a.     Controversy over Judiciary Act of 1780 §25
b.    Martin v. Hunter’s Lessee: VA CT refused to obey SCT mandate saying constitution did not authorize federal courts to reverse state court rulings.

                        i.    Injury: climate change well recognized and MA is immediately impacted b/c of its large coast
                                                                                         ii.    Causation: EPA’s refusal to regulate greenhouse emissions contributes to MA’s injuries – incremental is enough
1.    Incremental step is still enough, even if tentative
c.     Dissent: state ownership of land as “nonsovereign” b/c states have same interests as other proprietors
                                                                                          i.    Injury: MA couldn’t show it already suffered injury, probability
3.    Clapper v. Amnesty International: π are citizens who work around sensitive information and concerned about U.S. surveillance
a.     Injury: must by certainly impending to constitute injury
                                                                                          i.    Π’s assumed that government will violate their privacy
                                                                                         ii.    Π’s want discovery b/c government’s actions are still clandestine and don’t have access to know what’s happening
                                                                                        iii.    Don’t know scope of 4th amendment issue w/out discovery
1.    Don’t need constitutional injury, simple tortious interference with right of privacy is an injury
2.    B/c of Snowden, injury question is less significant and 4th amendment question more significant
4.    Hollingsworth v. Perry: same sex issue re Prop 8 ballot initiative
a.     CT looks at new issue: whether the party before the CT will do a good job in representing the side on which they stand
                                                                                          i.    Important b/c it’s constitutional litigation: the ruling in any particular case has national repercussions, not simply resolving the case
b.    Whether there is a real principal-agency relationship
                                                                                          i.    CA has not delegated or conferred particular responsibility to proponents of Prop 8 and yet the state would be bound as principal
                                                                                         ii.    Initiative process: direct democracy, people overruling state legislature (avoid the principle) – why make principal/agency argument at all?
                                                                                        iii.    If you accept direct democracy, agency argument loses strength
c.     Against standing:
                                                                                          i.    There is redressable injury, but the proponents don’t suffer it any more than any of the undifferentiated CA population at large
1.    Same injury for any taxpaying citizen
                                                                                         ii.    Proponents not appointed – will require State to enforce though
d.    For standing:
                                                                                          i.    Still some injury since Prop 8 was invalidated and it is redressable
1.    If not proponents of Prop 8, then who – how do you rule on undifferentiated populous à be more specific about what happens when you have proponents who want to vigorously pursue litigation
                                                                                         ii.    Proponents have adequate motivation to press the suit and represent their side with vigor
                                                                                        iii.    Basic political theory of the initiative process would seem to support a finding of standing and undermines the logical force of the principle/agency relationship