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

Outline – ConLaw – Obasogie – Spring 2015

1. Introduction

a. Ulysses – Textual constitution binds the future

i. New Country – Convenient way to establish new gov’t

ii. Controls Majorities – Stands in the way of current majorities—opposite the notion of democracy

b. Ways to Circumvent the Const

i. (1) Amendment Process

ii. (2) Interpretation

c. Representative Democracy vs. Direct Democracy [Framers]

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

ii. Less likely to sacrifice temporary/partial considerations

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

2. Origins of the Const

a. Articles of Confederation

i. Key Idea: States retained sovereignty

ii. Limited central gov being created to deal with key issues

1. Congress had power to determine war/peace

2. Resolve disputes between states

3. Create post offices

4. Coin money

5. Control dealings with Indians

6. (All other powers go to the states)

iii. Missing:

1. No real judiciary/executive authority

2. No power to tax

3. No power to regulate commerce

4. No bill of rights

iv. Failure to create uniform govt

v. Bicameralism: divides Congress into 2 branches

b. Madison’s Problems w/ Articles

i. No Respect – States didn’t respect the articles, acted as their own govts

ii. Trampled over other states’ rights, federal authority

iii. Law Inconsistencies – Multiplicity/conflicting laws across states

1. Madison: stronger fed govt to compel states to do the right thing

c. Classic Madisonian Republicanism

i. Civic Virtue: We should subordinate private interests for the public good

ii. Town Hall = prototypical idea

d. Antifederalists (*against* creation of new const)

i. Concerns

1. Rely on Reps – People stay home and leave governing to reps

a. Representation removed the people from the political process

2. Removed People from Process – New expanded const would exclude people from public affairs

a. Opposed to expansion of national gov’t (Madison’s views)

3. Exclude People from Public Affairs – Encourage people to be passive and not engage with politics

a. Opposed remote/distant govt

4. Individual’s Political Ambitions – Const overemphasized commerce and would lead reps to not genuinely rep people’s interests

ii. Believe people can overcome self-interest, favored a decentralized gov

e. Madisonian Republicanism (forced via pressure from antifeds)

i. Natural reps would conceive their role more broadly

ii. Represent constituents and keep public good in mind

iii. Rethink civic virtue through reps

f. Federalist Papers – propaganda to sell idea of new const

i. Federalist #10: Main problem of gov = factions, but they can be controlled.

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

2. Source – Large source of factions = unequal distribution of power

a. Modern faction: Occupy movement

3. Madison – factions cannot be eliminated, but effects can be controlled thru…

a. (1) Representative Govt: refine/enlarge public views via screening them thru chosen body

i. Consolidating the public voice

ii. Put most virtuous in charge of public good

b. (2) Large Republic: each rep chosen by great # of ppl, more difficult for fringe politicians to seize power

i. More Options – Diverse interests prevent a tyranny of the masses

ii. Each Rep Selected By Large Number of People – Smaller more likely to be overtaken by self-interested group

ii. Federalist #51: Self-interest (failures in representation) can be controlled through system of checks and balances

1. Madison: Human nature, people are self-interested/ambitious by nature

a. Remedy: Separation of Powers

i. Checks: Each part of govt is independent of the others and can check each other

ii. Federalism: Distribution of power btwn federal and state govts

2. Checks & Balances control the problem of factions and self-interest via “double-security”

a. Diffusing Power – each entity’s interests and ambitions keep an eye on one another

i. Bicameralism – House vs. Senate

ii. Federalism – State vs. Fed

iii. 2-party system – Republicans vs. Democrats

b. Double Security:

i. Horizontally (3 Branches of Fed)

ii. Vertically (State v. Fed – aka. Federalism)

c. Elections – Congress controlled through elections (indirect)

3. Origins of Judicial Review

a. Judicial Review – mechanism by which courts invalidate decisions of Congress & President

i. Subject only to constitutional amendment process

ii. Role of judiciary to say what law is (Marbury vs. Madison)

iii. Doctrine of judicial review has no basis in the constitution, Marshall made it up

b. Rationale for Judicial Review

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

ii. Inherent in judges’ duty – this is what judges do regularly

iii. Inferred – Necessary inference from a written const

iv. Power – Granted Art. III § 2 jdxn: judicial power to review const exclusive

v. Oath – Judges oath: to intrepret the const

c. Problems w/ Judicial Review

i. (1) Countermajoritarian difficulty: Judges exercise judicial review – not directly elected by the people; those least accountable to the people have the most power to determine scope/meaning of const

ii. (2) Intertemporal difficulty: Const trumps all when there is a conflict, even current elected reps

1. Best expression of the will of the people: Doc wri

ng the original meaning of the relevant provision as it was ratified

1. Judges better at interpretation bc institutional insulation from political pressures

i. Case: DC v. Heller

i. Facts: Heller, a D.C. cop, applied for a registration certificate from D.C. for a handgun he wished to keep at home. A D.C. statute prohibited possessing a handgun in the home without a license, and it also required any lawful handgun kept in the home to be rendered inoperable through use of a trigger-lock.

ii. Issue: Does a law prohibiting the possession of usable handguns in the home violate the 2nd Amendment to the United States Constitution? YES

iii. Rule: Subject to certain safety limitations, the 2nd Amendment to the United States Constitution creates an individual right to keep and bear arms apart from any military purpose.

j. Case: McCulloch v. Maryland

i. Facts: McCulloch (D), the cashier of the Baltimore branch of the U.S. Bank, issued bank notes in violation of a Maryland (P) statute providing that no bank, without authority from the state, could issue bank notes except on stamped paper issued by the state.

ii. Issues:

1. Does Congress have the power to incorporate a bank? HOLDING: YES

2. Does a state have the power to impose fees on the operation of an institution created by Congress pursuant to its constitutional powers? HOLDING: NO

iii. Rules:

1. Certain federal powers giving Congress the discretion and power to choose and enact the means to perform the duties imposed upon it are to be implied from the Necessary and Proper Clause.

2. The federal Constitution and the laws made pursuant to it are supreme and control the constitutions and the laws of the states.

iv. Marshall Args:

1. Historical Arg: Intent of framers, done before

2. Textual Arg: Focus on interpretation of text to understand limits of power—“necessary”

3. Structural Arg: This is just the way things are. This is the natural relationship between federal gov’t and states

4. Consequentialist Arg: Any other interpretation would lead to negative consequences

v. It is a constitution we are expounding

1. Const different from a statute, should be interpreted differently

2. Although doesn’t state power to create bank, Congress may create one to carry out other power