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

Constitutional Law I – Professor Obasogie – Spring 2015
A.    Introduction
                        i.    Constitutional law: study of how text confers and restrains power.  Constitution acts as a check on the authority of governmental actors – ensure freedoms of American public. 
1.     Why should the Constitution bind us?
2.     How does a written constitution contribute to that binding? Why is that important?
3.     How does text restrain and confer power?
B.    Creating a Constitution that Binds the Future
                        i.    The Constitution’s Structural Provisions
1.     Relationship between State and Federal gov’ts
a.     Federalism; Vertical
2.     Relationship between Branches of Gov’t
a.     Separation of Powers; Horizontal
                       ii.    Two core ideas of constitutionalism
1.     The notion that gov’ts should operate according to widely understood rules that respect individual rights
2.     The notion that written constitutions are better at binding future generations
a.     Written constitutions are needed to get governments up and running
C.   The Origins of the U.S. Constitution
                        i.    Articles of Confederation: Initial governing document, key idea of state sovereignty – giving central federal gov’t specific powers and all other powers remain with the states.
1.     Origins: Revolution ends in Articles of Confederation for 7 years. US Const., 7 Articles, written 1787 ratified in 1789.
2.     By modern standards Articles of Confederation had: NO real executive or judicial authority (this belonged to state sovereigns), no ability to tax, no ability of federal gov’t to regulate commerce and no bill of rights
                       ii.    Madisonian Republican Theory of Gov’t (Madison’s memo):
1.     Civic virtue is at the heart of the republican theory. Civic virtue is the idea that people will subordinate their private interests to the public good. Dialogue and discussion is key to this process.
2.     Structures in Constitution would be barriers to political participation – distance from the political issues.
                      iii.    Anti-Federalism:
1.     Opposed expanding the central gov’t, skeptical of representative gov’t. Believed that new system would exclude people from public affairs, wanted people to be constantly engaged in public and political discourse and decision-making.
2.     Tension between republican idea of local governance and the notion that a distance, central gov’t could tell people what to do
3.     Concerned that the new constitution removed people from the political process
4.     Problem of factions is in corruption. Civic virtue is the best check. Madison says corruption is turned into faction, it’s an inevitable problem of liberty; people will act in their self-interest. Large-scale representation reduces the power of factions. Heterogeneity is a good thing.
                      iv.    Federalist 10 – Madisonian Republicanism
1.     Factions: Small groups driven by passions that are adverse to the public interest.
a.     Source of factions: unequal distribution of power, property, liberty. Rivals disregard the public good.
2.     2 ways of curing: remove the causes or control the effects
a.     To remove the cause is to take away liberty – impermissible. Cause of factions are latent in nature of man
b.    Control the effects through representative gov’t – impracticable but it’s all we have
3.     Madison believed that factions can’t be eliminated but thought their effects could be controlled through 2 mechanisms:
a.     Representative gov’t: Refine & enlarge public views by screening them through a group of elected officials
b.    Large republic: More options/opportunities for accurate representation. Large numbers of participants screen out people with bad intentions from gaining power.
                       v.    Federalist 51
1.     Madison believed that humans by nature are self–interested and ambitious.
2.     In order to control the problems of factions and self-interest advocates “double-security”.
a.     Separation of Powers: Each part of gov’t (judiciary, executive and legislative) is independent of the other and can check one another
1)     Security is for the people – prevent accumulation of power.
2)     Branches should be as little dependent upon each other departments. Enable each to fend off attempts to encroach
b.    Federalism: distribution of power between federal and state gov’ts
·         By diffusing power, each entity’s interests and ambitions keep an eye on one another
D.   The Basic Framework
                        i.    MARBURY v. MADISON (1803):
1.     Marshall wrote opinion; conflict of interest, Secretary of Sate under Adams becomes Chief Justice of Sup. Court
2.     John Adams, outgoing Federal President, tries to pack courts with federalist judges like Marbury. Thomas Jefferson incoming Republican President. Documents signed but never delivered; Jefferson refused to deliver docs
3.     Does Marbury have a right to commission? Yes, signed by president, the president conferred the right to a job on the judiciary.
4.     If he has a right and it has been violated, does the law give him a remedy? Yes, where right has been violated that person has a right to seek a legal remedy
5.     Is Marbury entitled to a remedy? Yes, this entitlement depends on the nature of the writ applied for & the power of the court
6.     If he should be afforded a remedy, is that remedy a mandamus from this Court? No – The Supreme Court is without the power to force the President to deliver Marbury’s commission .
a.     Under Art. III, Sec. 2, Clause 2 of the Const.: The Supreme Court has original jxn for only specific types of cases. Marbury’s case isn’t enumerated; Supreme Court only has appellate jxn to hear cases not listed.
1)     Original jxn: when court is hearing for the first time; Appellate jxn: Reviewing decision of a lower court
b.    Judiciary Act of 1789: attempted to give Supreme Court original jxn in this case – invalidated by Marshall
1)     Congress can’t amend the Const. on their own merits, defeats the point of a binding Const.
2)     Establishes key idea of Judicial Review: Supreme Court has power to declare acts of Congress unconstitutional. “It is emphatically the province & duty of the judicial dept. to say what the law is.”
                                                      i)        Basis for Judicial Review (there’s none in the Const.):
a)     Supremacy Clause
b)    Inherent in judge’s duty
c)     Necessary inference from written constitution
d)    Grant of jxn extends to all constitutional cases; meaningless w/o this power
e)     Oath of a judge is to uphold the Const.
                                                     ii)        2 difficulties created by judicial review:
a)     Inter-temporal difficulty: what best expresses will of the people
b)    Counter-majoritarian difficulty: congress is directly accountable to constituents but judges aren’t
3)     Purported to give the Supreme Court original jxn to decide this case – Marshall found Act unconstitutional
                                                      i)        Congress couldn’t supersede or amend the Constitution
                                                     ii)        Marshall ruled in favor of his opponent to expand the power of the Court. Giving judiciary an incredible power to strike down the laws of Congress. Judiciary vs executive branches
                                                    iii)        Transparency: Marshall treats constitutional interpretation as mechanical and textualist process. Court is a democratic entity b/c of transparency involved issuing in written opinion that explain their interpretation
                       ii.    MARTIN v. HUNTER’S LESSEE (1868):
1.     Martin (British) had his land confiscated by state of VA, Hunter (US citizen) received land from VA gov’t.
2.     Martin: ineffective under anti-confiscation clauses in US/English treaties.
3.     VA trial court said land belonged to Martin & VA Court of Appeals reversed & said belonged to Hunter
4.     Supreme Court reverses & remands in favor of Martin, Virginia Court of Appeals refused
a.     Supreme Ct said had appellate jxn of state ct decisions concerning constitutional issues (Judiciary Act 1789)
b.    VA appellate court argued Act unconstitutional b/c infringed on state’s sovereignty. Argued that Congress impermissibly expanded Supreme Ct’s appellate jxn beyond what’s enumerated in Constitution
c.     VA State Sovereignty argument: Judiciary Act is in conflict w/plain meaning & reading of Const. itself.
                                                i)        Const. silent on the matter, shows framers didn’t want to extend power to federal courts. Const. was never intended to act upon state sovereignties, only upon the people
5.     Justice Story: It’s the case, not the court, which grants jxn. State sovereignty isn’t absolute. Appellate jxn extends. Const. limits state sovereignty, states already gave up great deal of sovereignty by ratifying Const., so they were clearly not sovereign entities in the absolute sense.
a.     State argument: these are enumerated exceptions; don’t go beyond them.
b.    Story’s response: 3 reasons for importance of Supreme Court’s appellate jxn over state court decisions
                                                i)        State bias: states will protect their citizens & disdain federal law. Federal judges need oversight in state
                                               ii)        Uniformity: states will construe constitutional matters to favor themselves except intent of the constitutional conventions. Law must be the same in every sate, shouldn’t vary depending on state
                                              iii)        Protect interest of all US people – deal with forum shopping advantages enjoyed by P in their home-state court.
c.      “Stripped”, “given”, “bound by the paramount authority of the U.S.” language = balance of fed/state power
E.    The Sources of Judicial Decisions: Text, Representation-Reinforcement, and Natural Law
                        i.    3 main sources for judicial decision-making:
1.     The text itself & its original understanding
2.     Structural approaches: reinforcement or improvement of democratic processes
3.     Natural law and rights: philosophical arguments about natural rights
                       ii.    DISTRICT OF COLUMBIA v. HELLER (2008):
1.     DC statute prohibited possession of handguns in home.
2.     Justice Scalia, majority opinion: statute unconstitutional
3.     Court distinguishes between individual rights to bear arms vs. understanding 2nd amendment as collective right that only protected right to bear arms in military service
a.     Evidence for individual rights:
                                                i)        Operative clause 2nd amend. “rights of the people”=individual rights to all members of political community
                                               ii)        Definition of arms in 18th century dictionaries referred to all weapons not just military use
                                              iii)        English history says 2nd amend. codified preexisting right
                                              iv)        Prefatory clause: general intro to operative clause. “well-regulated militia” treated as background, militia means all males, well regulated means properly trained
4.     Originalism: public understanding of legal text at time it was enacted, deference to public understanding
a.     Changes in technology and social context, challenges in gun ownership in modern times vs 18th century
                      iii.    MCCULLOCH v. MARYLAND (1819):
1.     James &

e there are concrete cases not on theoretical or hypothetical issues
3.     Decisions based on cases with real injuries and needs for mediation, not 3rd parties or bystanders using Court to impose view on society
                    iii.    ALLEN v. WRIGHT (1984) Justice O’Connor:
1.     Nationwide class action by black families against IRS for giving tax subsidies to private schools that discriminated based on race. Parents didn’t actually apply for students to attend the private schools
2.     Requirements of Standing:
a.     Prudential requirements (rules from judiciary):
(1) Can’t raise issues pertaining to other peoples’ rights (3rd party suits)
(2) Can’t adjudicate generalized grievances
(3) Complaint must fall within the “zone of interest” protected by the law
b.    Const. requirements (Art III itself):
(1) Personal injury alleged that is ‘distinct and palpable’ not ‘hypothetical’
(2) Injury must be traceable to D’s unlawful conduct
(3) Injury must be redressable (court’s favorable decision will provide relief for injury)
3.     Parents argument: 2 injuries –
(1) By failing to deny tax-exempt status the fed gov’t is supporting racial segregation in education
(2) Allowing IRS to subsidize private segregated schools thwarts the entire desegregation effort and ability of children to attend integrated schools
4.     Court’s analysis:
a.     Issue 1: Not enough that gov’t isn’t acting lawfully. Claim based on abstract stigmatic injury, not enough to establish standing. Standing only to those persons who are personally denied equal treatment. Otherwise too expansive. Standing would extent to all members of the racial group, regardless of location.
b.    Issue 2: The alleged injury isn’t redressable because it’s not fairly traceable to gov’t conduct, too attenuated. Traceability could be proven if enough discriminatory private schools received subsidies in the parents’ community so it would make an appreciable difference in public schools. J O’Connor: speculation.
                                              i)        Response: court is misunderstanding parent’s objectives, they want the subsidy to stop
                                             ii)        Counter; not the role of the Court to provide relief just b/c they don’t like tax policies, no personal effect
                                            iii)        Frustration of social justice; fix society
5.     O’Connor separation of powers argument: IRS is an agency of Executive Branch, Judicial Review in this instance (injury speculative) would infringe upon Congress’ role. SCOTUS would become babysitter of executive branch.
6.     Dissent J Brennan: says that O’Connor is assessing the merits of the case. Causation component is poor disguise for court’s view of the merits. Defense of O’Connor’s inquiry: Art III requires that justices have some min understanding of merits to determine if P’s have personal stake & issues of traceability and redressability
7.     Dissent J Stephens & Blackmun: IRS is subsidizing white flight. Link b/w tax exemption & harm is elementary economics, when something becomes more expensive, less of it will be purchased. O’Connor’s separation of powers analysis confuses standing (measuring P’s stake in the outcome) with justiciability (court’s authority to provide outcome sought by Ps). Broader interpretation of standing.
                      iv.  LUJAN v. DEFENDERS OF WILDLIFE (1992):
1.     Standing for gov’t acts beyond US borders. Endangered Species Act 1973, §7a2: each federal agency shall ensure that any action is not likely to jeopardize endangered species
a.     Environmentalists attack revision that would make agency’s obligations under §7 apply to actions w/in the US & on high seas. Ps want new regulation for action abroad.
b.    Alleged injury is grounded in 2 affidavits (Kelly and Skillbred) that claim that revision negatively affects their ability to see animals abroad in future travel
2.     Ps’ 3 theories of harm/for why they have standing:
(1) Ecosystem nexus: any one in an ecosystem is affected by a change in another part
(2) Animal nexus: anyone who has interest in studying/seeing animals anywhere
(3) Vocational nexus: any one with professional interest in animals
3.     Majority J. Scalia, court finds no injury
a.     Court’s response to nexus arguments:
(1) Ecosystem nexus: this would create rights of action in persons who haven’t been injured in fact
(2) Animal/vocational nexus: anyone who goes to see or works w/elephants would have standing, goes beyond the limit into pure speculation & fantasy
·         Injury in fact is invasion of legally protected interest which is
(1) Concrete and particularized
(2) Actual or imminent; and
(3) Not conjectural or hypothetical