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





– Government’s Power as limited by SCOTUS: # of areas SCOTUS doesn’t speak to (EX: President sending troops to Syria)

– History:

o Articles of the Confederation (1787): Peaceful revolution overturning the Articles à established the U.S. CON (1789)

§ Wanted loose, low-key group of sovereign states (consensus that this failed, so CON was much stronger and more centralizing)

o U.S. CON: Not much has changed, 27 amendments (actually, really 17 b/c first 10 were required in order to be ratified)

§ Origins:

· Virginia Plan: By Madison and the basis of the CON

· 4 Challenges:

o (1) Conflict in interests b/t large, populous states vs. smaller states

§ Solution: Great Corn Promise (Congress = 2 houses)

§ Critique: Senate is undemocratic, graveyard where bills, treaties, & foreign policy go to die

o (2) Balance of power b/t nation vs. states

§ Bill of Rights Ratification

o (3) Issue of Slavery

§ Solution: Northern states = no; Southern states = yes

§ Criticism: Most criticized aspect of CON was to allow slavery

o (4) Creation of executive branch that isn’t too strong but still effective:

§ Presence of Washington for trust in executive branch

§ Change in Interpretation: While the document itself hasn’t changed, how it’s been interpreted has changed

· Principles shape and reshape interpretation (EX: during drafting of CON, voters were white male, 4 million vs. the diversity now)

§ Social Compact: Basic agreement b/t citizens and states to create mutual rights and duties in permanent form

§ Two Crucial Functions of ConLaw:

· (1) Permanent Structure: Sets up and sets out structure of gov’t – rights, duties, boundaries, and limits

· (2) Essential Rights of Citizens: Limits what the gov’t is allowed to do, rights that the state must not and can’t infringe upon

– Criticism of the CON:

o 2 Main Interpretations:

§ (1) “Originalism” – divining framers’ intent, clarity, definitiveness, creates stability, know the rights and authorities

§ (2) “Living Constitution” – Reinterpreting the text in light of modern demands, vague, short, room for interpretation and debate

o Very angry response re: article – shows there’s much deference and respect for the U.S. Con still à still need a written document to fall back on

– Different Arguments To Make:

o (1) Text: Drawn from consideration of present sense of the word – requires extrinsic evidence of the text

o (2) Structural: A particular principle or particular result which is implicit in the structure of the gov’t and the relationships that are created by the CON b/t citizens and gov’t

o (3) Purpose: The intent of the draftsmen of the CON – purpose could be irrelevant now

o (4) Precedent/practice: create continuity and understanding of what the constitution means and how it should be interpreted. Creates stability. Collective wisdom that is collected overtime

o (5) Policy: what are the consequences or the results of a particular decision going to be

– Legal Anchor/Stabilizer: Con more difficult to change, and thus provides a kind of legal anchor or stabilizer of the political system

– Advantages of Federal/State Divide:

o States as Laboratories: Fed gov’t can cherry pick the state policies that work

§ Competition b/t States: States will try to up one another

o States/Cities = Micro-level Management: Can fix small things that nat’l gov’t won’t be able to do (potholes)

o Citizens more active in state/local than nat’l politics: However, w/ advent technology in communication and travels, may not be as true anymore

o Checks and Balances: Also a disadvantage – inefficiency


– Overview: Courts seized judicial review for themselves (Madison v. Marbury), not enumerated or granted in CON à developed gradually from the power vacuum which the Court seized the power from

o TRAP: Concept of judicial review is elastic, judicial review ≠ ConLaw; but judicial review in context of SCOTUS is different à allows SCOTUS to review legislation

§ Court can say they will strike down law under judicial review (but it’s only judicially) à law itself could still technically exist

– Facts: Marbury to receive judicial appointment; Jefferson sworn in before he receives it. Sec. of State Madison refuses to deliver the commission. Marbury files writ of mandamus (court order to government official/lower court to perform nondiscretionary act)

o Marbury has a right to the commission. Has presidential signature and approval of the Senate. Actual delivery is conventional, but not legally required.

o Court can rule on actions of executive. Some executive political decisions are not reviewable – ministerial v. political.

§ Ministerial executive decisions are reviewable: officers carrying out duties provided by statute with potential consequences for individuals

§ Political executive acts are not reviewable: veto bill, appoint cabinet member – anything with broad executive discretion

o Judiciary Act of 1789 is not constitutional. If Judiciary Act used, Marbury would win – but it contradicts Constitution by exceeding the jurisdiction given to court.

o Art. II, s.2: an exhaustive list; Congress can’t give court more jurisdiction than what’s in the Constitution.

o Court may strike down Judiciary Act as unconstitutional. Establishes judicial review. “An act of the legislature repugnant to the Constitution is void”

– Authority for Power: Article III: SCOTUS shall have (1) original jx in cases of ambassadors, public officials and state; (2) appellate jx in all other cases; (3) subject to exceptions & regulations as Congress may prescribe to that appellate jx.

– Judicial Review: 2 Views

o (1) Power of Court to refuse to apply or enforce acts of Congress that conflict with the Court’s view of the Constitution

o (2) Court’s power to review the actions of executive branch administrative agencies, and whether or not constitutional issues are involved

o Political Implications of Madison v. Marbury: Marshall established the Court as an independent check on judicial review – SCOTUS now got to decide the constitutionality of other branches’ decisions

§ Assumed other branches would acquiesce (correct) but not always (ex: Lincoln and Dred Scott: Lincoln didn’t follow with ruling)

– Scope of SCOTUS’ Powers: Reasons for Judicial Review

o Expertise Argument: One doesn’t need to actually be a lawyer to be on SCOTUS. While judicial branch has good lawyers, is reading of CON requiring “legal expertise” or “good judgment”?

o Final Arbiter: Other branches still have options – Final word is CON amendments or court changing mind

§ CON Amendment Process: (Tribe) 10,000 separate amendments submitted, only 27 adopted.

o Judicial Supremacy: Presence of this principle that a judge can reject/nullify/accept

o “Judicial Review as platonic graft on democratic process” (Roche) – while arguably undemocratic, it is a check and a group of wise men who have the task of extracting the truth and chaperoning over the sovereign people and elected officials who act unwisely

When Should SCOTUS Use Their Judicial Review Power?

– Undemocratic Nullification: Arguably, judicial review is inconsistent with democratic principles and “people’s republic”?

o Thomas Jefferson: System based on checks and balances, but Court’s ability to decide on constitutionality of other branches’ actions including their own makes them “a despotic branch”

o Andrew Jackson: Executive and Legislative branches should be able to decide on constitutionality of bills and resolutions; Judiciary Branch shouldn’t be accorded more weight

– Partial Deference: Recognizes that Marbury is slightly undemocratic, suggests that Marbury/judicial review should be used when it’s absolutely black-white against CON

– How much policing should SCOTUS do? Since other branches have ways to police themselves AND judicial branch has no power of enforcing their decisions (limited power)

o Arguments:

§ “People” in the late 18th c adopted the CON giving SCOTUS this power, and the “people” more recently elected presidents and senators who picked and confirmed the Supreme Court Justices to decide these matters.

§ Given the rather attenuated connection to the “people”, SCOTUS, in considering the matter, should give some benefit of the doubt to the Congress, if the CON is not so clear on the breadth of Congress’ powers

– Avoid Constitutional Question – Philosophical Prudence

o SCOTUS should interpret it in a way that avoids the CON Q, b/c the courts should conserve their powers to decide constitutional issues to situations where they have no way to escape the task, in order to avoid unnecessary confrontations with the other branches of gov’t vs. active judiciary

§ EX: Marbury struck down a statute in 1803, next time SCOTUS did that was 1857 (Dred Scott)


– Supremacy Clause: (Art. 6, Cl. 2) à “This Constitution . . . shall be the supreme Law of the Land; and the Judges in every state shall be bound . . .”

o Federal Law is supreme; when there’s a conflict b/t federal and state law, federal law will win

o Binds state judges to the CON, requires state judges to take an oath so not only within state judges’ jurisdiction but obligation to decide CON questions

o Judicial supremacy of SCOTUS to assert judicial authority (Marbury) to apply it uniformly to foundation of ConLaw.

– Purpose: SCOTUS Can Strike Down State Law

– Departmentalism examples –

o Sedition Act – criminalized false criticism of the government. Is that consistent with first amendment right to freedom of speech. Jefferson says this is not constitutional. He pardons everyone who has been convicted and halts enforceme


o Liberty protective theory of separation of powers – divide up governmental authority because it keeps you free and protects liberty since there is a danger of too much power

o Presidential leadership – raises the questions of what kind of office is the presidency supposed to be, what roles should the president play in times of war.

o With respect to domestic affairs, the President may exercise only those powers granted expressly or implicitly by a statute or by the Constitution. The President does not have the power to seize private property outside the theater of war except pursuant to a statute. The President has a duty to execute the laws faithfully, and this duty requires the president to obey the legislative choices made by congress.

———————-Federalism – Vertical Power———————-

– Federal Structure and Constitutional Law: Two categories arise

o (1) Substantive Policy Question: What level of gov’t (state/local/federal) has authority under the U.S. CON to act in any given situation?

o (2) Process Question: Which institution of gov’t (e.g. Congress, states, SCOTUS) has final authority to decide substantive policy questions? Should it be policy/statutes by legislatures or by ConLaw via Courts? Both?

– History:

o Articles of Confederation (1787) – minimal nat’l gov’t power and weak nat’l gov’t à produced political crisis

§ Framers set out new central gov’t to allocate sufficient authority to address nat’l problems, but this power would be limited by CON

o Creation of Necessary and Proper Clause: SPLIT

§ Hamilton: “necessary” meant Congress’ powers as “needful, requisite, incidental, useful”

§ Jefferson: Can’t read “necessary” so broadly to nullify effects

– 10th Amendment and Zero Sum Gain:

o 10th amendment: The powers of the federal government are limited and enumerated, and any power not granted to the federal government is reserved for the states and the people. Thus, while Congress may have the power to tax and spend for the general welfare, as well as broad powers under the Commerce Clause, there is no federal police power. Meaning: the federal government has no authority to regulate for the health, safety, and welfare of the public.

o Zero-Sum Gain: More power given to nat’l gov’t = less power state gov’ts have – 10th Amendment – Supremacy Clause is just a line that is drawn, doesn’t spell out what/how much states can have

§ Significance of McCulloch: Nat’l power is expressed in broad terms à broad concept and interpreted necessary to mean “convenient to regulate commerce”

§ Counter from MD: States came before nat’l gov’t, so status quo/starting point should be states and NOT nat’l gov’t

· Important! Marshall’s Counter: Ratification of CON came from people (via popular approval), not states


I. Delegation Doctrine: Congress’ delegation of their rulemaking power to the President/Executive Branch

– Article I, § 1: “[A]ll legislative Powers herein granted . . . in a Congress of the United States.” – Does not state a delegation principle

o Transfer of power to Executive Branch (once delegated, Congress doesn’t have control anymore). Purpose?

§ Compromise among different interests necessitates ambiguity in legislation

§ Executive may be more informed (expert & efficient decisions) to provide a more deliberate process than Congress

· Executive & Agencies may have more access to experts / scientists

§ Make Executive politically accountable to the electorate

§ Congress may want to avoid accountability & pass political “hot potato” to executive.

o Judicial Common Law ≠ Legislative Power à Tradition of courts making CL predates American gov’t; therefore, CL is within concept of “judicial power” in Article III

§ Significance: Powers of judiciary, legislative, executive are not crisply defined lines, blurry b/c the 3 branches aren’t actually defined.