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Constitutional Law I
University of California, Hastings School of Law
Price, Zachary

Article 1à Defines the power of Congress, Legislative Branch
Article 2à Defines the power of the President, Executive Branch
Article 3à Defines the power of the Federal Courts, Judicial Branch
–       Constitutional Law divided into two categories:
o   Horizontal – three branches of government (legislative, executive, judicial)
§  Legislative passes laws à President can veto, Congress can override veto by majority
§  Executive executes laws à enforces laws
§  Judicial adjudicates despites about application of law
o   Vertical – division between federal government and state government (federalism)
§  Federal government has limited enumerated powers
§  States left with the rest of the powers (police powers)
·         States have complete authority unless there is a constitutional limitation
–       Argument Typology: (how we interpret the Constitution)
o   Text:
§  Actual text of the constitution
§  Pre-commitment to abide by certain principles
§  Limitations: words can change meaning – might need to look at other materials to make sure interpretations are correct
o   Structure:
§  Where it fits in the document as a whole may help understand what it means
§  Adopt a meaning in support of the message of the whole document
§  Limitations: structure is ambiguous
o   Purpose:
§  Binding certain principles in a collective product of compromises between different views
§  This is a legal command across time to us
§  Determining what they mean to do
§  Important if text isn’t clear à look at purpose
§  Limitations: purpose in the past is not relevant today and there is an ambiguity of whose purpose it was
o   Precedent/practice:
§  Court decisions provide stability, continuity and legitimacy over time, basic value of stability and predictability
§  Limitations: problems with following bad decisions, legal decisions may be incorrect and SCOTUS is the only body that can overturn its own decisions
o   Policy:
§  Want Constitution to advance the goals that we have for society (what makes sense to us today)
§  Limitations: not imposing other policy views
–       Jeffersonian arguments
o   Government of limited, enumerated powers
o   Wanted to keep as much power as possible in the states, closer to the people
–       Hamiltonian arguments
o   Strong and powerful national government
–       Bank Controversy – Can the US charter a corporation (bank)?
o   Jefferson: (viewed it as a dangerous concentration of power and didn’t like it on policy grounds)
§  Exceeds authority of government
§  Power to created a bank is not enumerated in Constitution
§  Federal government has limited and enumerated power
·         Congress can borrow money on the credit of the U.S.
o   Bank is not used for borrowing money
·         Congress can regulate commerce with foreign nations, and among the several states, and with the Indian tribes
o   Creating the Bank is not regulation of commerce à creates a subject of commerce only
§  Textualist argument: necessary = essential
§  Policy argument: Should interpret Constitution narrowly to limit snowball effect of having a tyrannical government
o   Hamilton: (proponent, thought it was important)
§  This aligns with goals of setting up an effective government
§  Chartering a corporation is something governments can do
§  Necessary and proper clause: necessary = “conducive to”
·         Bank has natural relation to levying taxes, having an army, borrowing money
·         Congress can make all laws necessary to regulate commerce
§  Structuralist argument: more flexibility in necessary and proper clause
–       Slavery Controversy
o   3/5 Clause (slaves count as 3/5 of a person for purposes of representation)
o   Debate conclusion: Congress has no authority to intervene with slaves’ treatment/emancipation
o   Compare this with Hamilton’s “necessary clause” about banking à it would be convenient (more interstate commerce because more free people)
The Constitution is the “supreme Law of the Land”
The Constitution trumps any other law, policy, or action of federal or state government that comes into conflict with it
The power to interpret the Constitution arises from the judicial duty to follow and apply the law, when deciding a case/controversy within a court's jurisdiction
–       Marbury v. Madison (President Adams appointed Marbury as a Justice of the Peace at the end of his term before Jefferson took office. The commissions were signed by Adams and sealed by acting Secretary of State John Marshall, but they were not delivered before the end of Adams’s term as president. Jefferson refused to honor the commissions, claiming that they were invalid because they had not been delivered by the end of Adams' term. Marbury applied directly to the Supreme Court for a writ of mandamus to compel Jefferson’s Secretary of State, Madison, to deliver the commission).
o   Holding: The Supreme Court held against Marbury and held that it could not constitutionally hear the case as a matter of original jurisdiction. Congress cannot allow original jurisdiction beyond the situations enumerated in the Constitution.
o   Issues:
§  Does Marbury have a right to the commission?
·         Yes, he has a right to the commission because all appropriate procedures were followed
·         The order granting the commission takes effect when the Executive’s constitutional power of appointment has been exercised, and the power has been exercised when the last act required from the person possessing the power has been performed. The grant of the commission to Marbury became effective when signed by President Adam
§  If he has the rights, does he have a remedy?
·         Yes, there is a remedy
·         The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury
§  If there is a remedy, can the court issue a writ of mandamus?
·         No, the Supreme Court does not have original jurisdiction to issue writs of mandamus
·         The Supreme Court is not the appropriate entity to issue a remedy
·         It is an issue of the Constitution – the Court only exercises appellate jurisdiction, not original jurisdiction
o   This case was used to announce the principle of judicial review
o   Certain cases are within the original jurisdiction of the Supreme Court
§  Article III, §2: “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the Supreme Court shall have original jurisdiction”
–       Stuart v. Laird (Judiciary Act of 1801 – created the “midnight judges,” which established new circuit court judges to hear immediate appeals, instead of requiring Supreme Court justices to “circuit ride.” Once the Jeffersonians took power, revoked the offices of judges who had been appointed with life tenure. Stuart defaulted on the delivery and Laird sought recovery on the bond. Judgment was entered in favor of Laird and Stuart sought to overturn).
o   They argued that the Justices of the Supreme Court held commissions to be Supreme Court Justices, but not circuit judges
o   Hence they could not return to sit as circuit judges once the positions held by the Federalist circuit judges were abolished
o   Judges of the Supreme Court have no right to sit as circuit judges, not being appointed as such à The Act was unconstitutional
o   Congress did have authority under the Constitution both to establish and abolish lower federal courts
–       Departmentalism: Position that each of the three branches of government is free to independently interpret and enforce the Constitution independently within the sphere of its own operations
o   Sedition Act
§  The outgoing Adams administration criminalized false statements about the government – seditious libel was a common law offense
§  Jefferson says unconstitutional and inconsistent with a 1st Amendment right to free speech
o   Lincoln & Dred Scott
§  Dred Scott unsuccessfully sued for his freedom – racist opinion that ruled neither he nor any other person of African ancestry could claim citizenship in the United States, and therefore Scott could not bring suit in federal court under diversity of citizenship rules
§  Ultimate holding: Federal government had no authority to prohibit slavery in territories
o   Ex Parte Merryman
§  When a person is detained by police or other authority, a court can issue a writ of habeas corpus, compelling the detaining authority either to show proper cause for detaining the person or to release the detainee
§  Supreme Court (Justice Taney) ruled that the authority to suspend habeas corpus lay with Congress, not the president
·         The president can neither suspend habeas corpus nor authorize a military officer to do it, and that military officers cannot arrest people except as ordered by the court
o   Cooper v. Aaron (Federal district court ordered desegregation in public schools, and Arkansas refused to comply with the decision to desegregate the schools).
§  The decision from the SCOTUS is supreme in the exposition of the law of the Constitution
·         Judicial supremacy, Supreme Court doesn’t just interpret laws/make decisions, when Supreme Court makes a decision, it is the supreme law of the land
o   DOMA
§  For federal purposes, same sex marriages are not recognized, even if it recognized at the state level
§  President Obama:
·         DOMA was unconstitutional
·         However, they will still enforce it until the legislature repeals it (ex: if a same-sex couple tries to file joint taxes as a married couple, the federal government won’t recognize/enforce it) but the DOJ won’t defend it (in court)
The courts may decide if what the legislative or executive branch has done violates the constitution
–       Youngstown Sheet & Tube Co. v. Sawyer (Dispute between steel companies and their employees for terms in new bargaining agreements. This led the president to institute Executive Order 10340: President directed secretary of commerce to take possession of the mills and keep them running.  The Founders entrusted law-making power to the Congress alone in both good and bad times. The Supreme Court declared the seizures of the steel mills unconstitutional).
o   The Supreme Court holds that President did

o   SCOTUS says it is okay to delegate as long as it clearly delineates the general policy, the public agency which to apply it, and the boundaries of this delegated authority
·         Dissent: Scalia
o   Although they are only guidelines, they have the force and effect of laws
o   The decisions made by the commission are far from technical, but are laden with value judgment and policy assessments
o   It’s one thing for Congress to delegate the power, but it is another thing for them to create a “junior varsity” congress, which does nothing but make laws
o   Powell v. McCormack (Powell was elected to serve in house of reps and was not permitted to take his seat after an investigation concluded that Powell deceived authorities on travel expenses and illegal salary payments had been made to his wife at his discretion. He brought suit, claiming the house could only exclude him if he failed to meet the requirements of age, citizenship, and residence).
§  Congress does not have broad powers under Article I, Section 5 of the Constitution to determine qualifications of its membership
·         Congress can’t add qualifications
§  Under Article I, Section 5, each house of Congress may, by a 2/3 vote, expel a member
§  However, expulsion was not the purpose of proceedings here
·         Expulsion can occur when a member is currently sitting, during the term
·         It doesn’t apply here, where he was prevented from taking his seat
o   State-Imposed Qualifications:
§  US Term Limits v. Thornton (Arkansas adopted an amendment, their constituency voted to limit an elected official’s term limit to 3 terms – name won’t show up on the ballot if served 3 terms in the house or 2 terms in Senate. Constituents think this would increase accountability and allow for better representation in Congress. Thornton sued on the grounds that the power to limit was not within original powers of the state and thus not reserved to states by the 10th Amendment).
·         State argument: Under the 10th Amendment, states have the authority to regulate term limits and can do anything the constitution hasn’t delegated or doesn’t limit
·         Federal argument: There is no reserved power to the state and the result might be undemocratic, because it prevents people from choosing who they actually want for a representative
·         The framers intended the Constitution to be the exclusive source of qualifications for members of Congress
o   Therefore they divested states of any power to add qualifications
·         Concurring: (Justice Kennedy)
o   States cannot interfere with the relationship between the people of the Nation and the National Government
·         Dissent: (Justice Thomas)
o   States retain ultimate sovereignty except in those areas where the Constitution expressly delegates power to the federal government
o   Nothing in the Constitution deprives the people of each state to prescribe eligibility
o   The Constitution is silent on this question, and where it is silent, it raises no bar to action by the States or by the people
o   The states have the right to reserve that power because the national government derives its powers from the people
§  The people consented to the federal government, but did not give up power to add qualifications that they could reserve
o   Kilbourn v. Thompson (Bill arose from an investigation by the house into a bank that sold million dollars of US government bonds before going bankrupt. Investigations began and house committee issued a subpoena to Kilbourn to testify before the House. He refused to appear and was taken into custody, held in contempt until he testified).
§  Supreme Court ruled that the House lacked constitutional power to punish for a matter within jurisdiction of the federal court (contempt)
§  Here, the House exceeded the limit of its own authority by assuming a power which could only be properly exercised by another branch of government (this was judicial in nature) and was without authority in the matter
·         The House is intruding on the bankruptcy proceeding and was not related to their legislative function