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Constitutional Law I
University of California, Hastings School of Law
Schwartz, Lois W.

Constitution Defined: A system of fundamental principles that sets forth the way in which the state or federal government is managed
U.S. Constitution Functions: The U.S. Constitution creates a national gov’t & divides power among the three branches of American gov’t
                                                               i.      Creates National Government: The federal gov’t is a gov’t of limited powers, which means that for federal action to be legitimate, it must be authorized. The Constitution is the instrument that authorizes the federal gov’t to act. Thus, whenever a question involves action by an entity of the federal gov’t, the action will be valid only if it is authorized by the Constitution. Articles I – III concern separation of powers & branches of the federal gov’t
1.       Article I: Creates a legislative power & vests it in Congress
2.       Article II: Places the executive power in the president of the U.S.
3.       Article III: Provides that the judicial power of the U.S. shall be in SCOTUS & such inferior courts as Congress creates
                                                             ii.      Separation of Powers Between Branches: While each branch of gov’t has its own duties, the other branches of gov’t have some control over its actions
1.       Separation of Powers: A system of dividing the powers & duties of the gov’t among three separate branches
2.       Checks & Balances: Limits are imposed on each branch via a system of checks & balances whereby each branch has the right to amend acts of the other branches
                                                           iii.      Separation of Powers Between Federal & State: The constitution divides power vertically between the federal & state gov’t
                                                           iv.      Protects Individual Liberties: The function of the Constitution is also to protect individual liberties, which is popularly regarded as the Constitution’s most significant goal
                                                             v.      Living v. Concrete Document: Lois views the U.S. Constitution as a living document
1.       Originalist View: Judges deciding constitutional issues should confine themselves to enforcing the norms that are stated or clearly implicit in the written Constitution. In other words, SCOTUS should find a right to exist in the Constitution only if is it expressly stated in the text or was clearly intended by the framers – where the Constitution is silent, it is for the legislature (unconstrained by SCOTUS) to decide the law
a.       Plain Language: Originalists want to stick to the plain language & interpret to form closest to original intention as possible
b.       Meaning of Provision Example: Provision = set when it’s adopted, & that it can solely be changed by amendment
2.       Modernist View: Courts should go beyond those norms stated in the Constitution & enforce norms that cannot be discovered within the four corners of the document. In other words, it is permissible for SCOTUS to interpret the Constitution to protect rights that are not expressly stated or clearly intended
a.       Elastic Language: Modernists believe the constitution = elastic / living document & responds to change
b.       Meaning of Provision Example: The Constitution’s meaning can evolve by both amendment & interpretation
Role of Three Branches of Government: The legislative, executive, & judicial branches make up the three branches of gov’t, all of which have different roles
                                                               i.      Legislative Role: The legislative branch makes new laws & modifies existing laws
1.       State Legislature: Includes elected representatives from various regions within the state
2.       Federal Legislature: every state has representatives in the U.S. Congress, which includes the House of Representatives & the Senate
a.       House of Representatives: The number of representatives a state sends to the House of Representatives is based on the state’s population
b.       Congress: Each state has two senators who serve in the U.S. Senate
                                                             ii.      Executive Role: The executive branch enforces laws passed by the legislature. It also has the power to sign or veto / reject laws passed by the legislature & has authority over a wide range of agencies / departments that assist in the enforcement of laws & oversee how the gov’t spends its money
1.       State Level: A Governor is elected to be the head of the executive branch
2.       Federal Level: The President is the head of the federal executive branch
                                                           iii.      Judicial Role: The judicial branch interprets & applies state & federal laws to specific cases. Every state & the federal gov’t have an independent judicial branch
1.       Purpose: By providing a place where people can go to resolve disputes according to law, through a fair process, & before a knowledgeable & neutral judge or jury, the judicial branch helps to maintain peace & order in society
Strict Scrutiny: If the gov’t impairs a fundamental right (Bill of Rights, restricts political process, discriminates against minority) than apply strict scrutiny
                                                               i.      Burden of Proof: The BOP is on the gov’t to show that the challenged action is necessary to advance a compelling gov’t interest & is the least restrictive means of achieving that interest
Intermediate Scrutiny: If the gov’t impairs intermediate right or is intermediate action (discrimination against gender, non-marital children, undocumented alien children w/ education, regulation commercial speech) then apply intermediate scrutiny
                                                               i.      Burden of Proof: The BOP is on the gov’t to show that the challenged action is substantially related to an important / substantial / significant gov’t interest that outweighs the interest infringed upon
Rational Basis: Apply rational basis to more intermediate action, all laws challenged under due process must at least meet “rationally related to legitimate gov’t purpose,” under reasonable means
                                                               i.      Burden of Proof: The BOP is on the challenger to show that the challenged action is not rationally related to any legitimate governmental interest
Article III Express Powers: Article III of the U.S. Constitution vests express powers in the judicial branch
                                                               i.      Section 1 Plain Language: The judicial power of the U.S. shall be vested in one Supreme Court, & in such inferior courts as the Congress may from time to time ordain & establish. The judges, both of the Supreme & inferior courts, shall hold their offices during good behavior & shall receive for their services a compensation which shall non be diminished during their continuance in office
1.       Created Federal Judicial System: “The judicial power of the U.S. shall be vested”
2.       Mandates Existence of SCOTUS: “In one Supreme Court”
3.       Authorizes Congress to Establish Lower Federal Courts – Discretionary: “In such inferior courts as the Congress may from time to time ordain & establish”
4.       Lifetime Appointments / Compensation: Ensures the independence of the federal judiciary by according all federal judges life tenure “during good behavior” & salaries that cannot be decreased during their time in office
                                                             ii.      Section 2 Plain Language: (1) The judicial power shall extend to all cases, in law & equity, arising under the constitution, laws of the U.S., & treaties made, or which shall be made under their authority; to all cases affecting Ambassadors, other public ministers & consuls; to all cases of admiralty & maritime JDX; to controversies to which the U.S. shall be a party; to controversies between two or more states; between a state & citizens of another state; between citizens of different states; between citizens of the same state claiming lands under grants of different states, and between a state or the citizens thereof, & foreign states, citizens or subjects
1.       Original JDX Section 2(2): Only those cases affecting “affecting Ambassadors, other public Ministers & Consuls, & those in which a State shall be a party,” may be filed directly with SCOTUS without having to be initiated in a state or lower federal court
a.       Relevant Case: Marbury v. Madison à Marshall said that Article III’s enumeration of original JDX would be “mere surplusage … entirely without meaning,” if Congress could add more areas of original JDX
b.       Takeaway: Congress ≠ expand power to suit its own purpose
2.       Appellate JDX Section 2(2): All other cases within the federal judicial power must be initiated in a state or lower federal court
Authority of Judicial Review of Other Branches of Federal Government: The Constitution does not explicitly state that SCOTUS may determine the constitutionality of acts of other branches of gov’t. However, Marshall’s decision in Marbury v. Madison established judicial review of federal executive & legislative actions / SCOTUS’s power to check the other branches of gov’t
                                                               i.      SCOTUS as Gatekeeper of Constitution: Marshall has the opportunity to explain & announce what the role of the courts in terms of separation of powers when he wrote, “it is emphatically the province & duty of the judicial department to say what the law is.”
                                                             ii.      Source of Judicial Authority: SCOTUS establishes that Article III is the source of judicial authority, which authorizes maximum JDX of federal courts
1.       Congress ≠ Expand to Fit Agenda: Congress cannot expand the power authorized by Article III to suit it own purpose
                                                           iii.      Relevant Case: Marbury v. Madison (1803) à On his last day in office, President Adams appointed 42 justices of the peace under the Congressionally adopted Organic Act, which was an attempt by the Federalists to take control of the federal judiciary before Jefferson took office. The commissions were signed by Adams and sealed by acting Secretary of State / CJ Marshall, but not delivered before the expiration of Adams’s presidential term. Jefferson refused to honor the commissions, claiming they were invalid because they had not been delivered by the end of Adams’s term. Marbury (P) was an intended recipient of an appointment as justice of the peace & applied directly to SCOTUS for a writ of mandamus to compel Jefferson’s Secretary of State, James Madison (D), to deliver the commissions. The Judiciary Act of 1789 granted SCOTUS original JDX to issue writs of mandamus “…to any courts appointed, or persons holding office, under the authority of the United States.”
1.       Issue 1: Is Marbury’s appointment valid / does he have a right to the commission? YES
a.       Rationale: The appointment was done in full while Adams was still President – he followed all appropriate procedures. The appointment = valid when Adams undertook his final act required for the appointment, not upon deli

l custody. On March 25, 1868, Congress repealed part of the 1867 statute that authorized SCOTUS’s appellate review of writs of habeas corpus. President Johnson vetoed the attempted repeal of SCOTUS JDX, but Congress overrode the veto on March 27, 1868.
a.       Issue: Whether SCOTUS had JDX to hear the claim in light of the recently adopted statute denying it authority to hear appeals under the 1867 Act that was the basis for JDX in McCardle’s petition
b.       Holding: NO – The 1868 Act was an unmistakable exception to SCOTUS’s appellate JDX, thus mandating the dismissal of McCardle’s appeal
c.        Rationale: Although SCOTUS’s authority stems from the Constitution, it is conferred “with such exceptions & under such regulations as Congress shall make.”
                                                                                                                                       i.      Limited by the Exceptions & Regulations Clause – Not Motives: SCOTUS says it will not inquire into the motives of the legislature, but only examine its power under the Constitution, which expressly states the power to make exceptions to SCOTUS’s appellate JDX
                                                                                                                                     ii.      Result: As a result, it is permissible for Congress to restrict SCOTUS from hearing politically sensitive cases
                                                             ii.      Separation of Powers as a Limit on Congressional Authority: While Congress has the power to establish lower courts, it cannot determine the rules such courts apply
1.       Relevant Case: U.S. v. Klein à In 1863, Congress adopted a statute providing that individuals whose property was seized during the Civil War could recover the property, or compensation for it, upon proof that they ≠ offer aid or comfort to the enemy during the war. SCOTUS subsequently held that a presidential pardon fulfilled the statutory requirement of demonstrating that an individual was not a supporter of the rebellion. In response, Congress adopted a statute providing that a pardon ≠ admissible evidence in a claim for return of seized property
a.       Holding: SCOTUS held the statute was unconstitutional because Congress cannot direct the results in a particular case – Congress crosses the line when it interferes with judicial economy
                                                                                                                                       i.      Language: Congress “exceeded its power by invading province of judicial branch by proscribing the rule that the Court was to apply in making a decision.”
b.       Broad Interpretation: Congress may not restrict SCOTUS JDX in an attempt to dictate substantive outcomes
c.        Narrow Interpretation: Congress may not restrict SCOTUS JDX in a manner that violates other constitutional provisions
Justiciability Limits: Justiciability doctrines determine which matters federal courts can hear & decide, & which must be dismissed. Justiciability includes (1) the prohibition against advisory opinions, (2) standing, (3) ripeness, (4) mootness, & (5) the political question doctrine
                                                               i.      General: Each of the justiciability doctrines was created by SCOTUS – neither the text of the Constitution nor the framers in drafting the Constitution expressly mentioned any of the following limits on the judicial power
1.       Constitutional Versus Prudential Requirements: Although all justiciability requirements for federal court adjudication were judicially created, SCOTUS has distinguished between two different sources for the rules
a.       Constitutional Requirements: Some justiciability doctrines result from SCOTUS’s interpretation of Article III § 2, which defines the federal judicial power in terms of 9 categories of cases & controversies. The cases & controversies requirement imposes substantial constitutional limits on federal judicial power
b.       Prudential Requirements: Some justiciability requirements are derived from prudent judicial administration – judicially created. This means that although the Constitution permits federal court adjudication, SCOTUS has decided that in some instances, wise policy militates against judicial review
                                                                                                                                       i.      Note – Congress May Modify: Congress may override / modify prudential restrictions because they are not derived from the Constitution