Constitutional Law I – Spring 2016
Osagie Obasogie
Chapter 1: The Constitution and The Supreme Court
I. First Class: Intro to Con Law
A. What Does “Natural Born Citizen” Mean?
1. Naturalization Act of 1790: “children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens”
a) Do both parents have to be citizens?
b) This is a congressional Act. Court has not ruled on specific issue of what natural born citizen means precisely.
2. There are other parts in the Constitution that might provide guidance, e.g. 14th Amendment, Section 1 (1868): “all persons born or naturalized . . . are citizens.” Why is this relevant?
a) Distinguishes between being born here and being naturalized, Suggests (at least) two main paths to citizenship.
b) This was speaking, at least in part, to a particular issue following the Civil War regarding newly freed slaves.
3. Is there another possible Constitutional issue with Cruz’s eligibility?
a) Age requirement: Art II, Section 1, Cl. 5: “neither shall any person be eligible for that office who has not attained 35 years.”
(1) Does this reflect the Framers concern that the Executive should have a certain amount of wisdom and experience, measured by age?
(2) Consider the average life expectancy of the 18th century: roughly 40 years. Given this context, high infant mortality, and harshness of everyday life among average person, does this rule reflect a desire among the framers in which only those who largely exceeded average life expectancy (and still healthy enough to hold office) could be the executive? Is this a proxy for class/status (i.e. having the means, resources, and affluence to live longer) that kept “common people” from being president?
(3) If this context is taken seriously and we want to remain faithful to the Framers’ intent, should the age requirement be adjusted upwards in relation to modern life expectancy? And should this be a reason to disqualify young candidates like Ted Cruz?
(4) What about innovative entrepreneurs like Mark Zuckerberg – those who exhibit great leadership skills but are not yet 35? Should we allow an old Constitutional rule to keep them from running for President?
4. Key Course Questions:
a) Why should the Constitution bind the current people of the United States?
b) How does the Constitution as a document conserve and constrain power?
c) Why should 18th century decisions and prerogatives guide modern government?
(1) How does a written constitution contribute to this question?
5. How to Approach the Class
a) Identify all of the ways to think about an issue and develop an argument for what you think is appropriate given the current state of the law
b) Be able to place case law into a particular social, economical, and political context
II. The Origins of the U.S. Constitution
A. Learning Objectives (Class 2):
1. Understand what the Articles of Confederation were, in terms of initial goals and perceived shortcomings.
2. Understand the conditions and debates leading to the development of the U.S. Constitution.
3. Understand Madisonian Republicanism.
4. Understand the historical and political contexts giving rise to the notion of judicial review.
5. Understand the theoretical tensions that occur when one branch has sole responsibility to interpret the Constitution.
B. Articles of Confederation:
1. Initial governing document: A memorandum/loose agreement between 13 independent states acting as small nations dictating how they would deal with larger issues.
2. Key idea à State Sovereignty
a) Developing ground rules for dealing with common problems, while still allowing states to be self-ruling
b) States retained their “sovereignty” and “independence” though they agreed to do certain things and surrender a very limited number of powers to federal government so it may deal with larger issues and issues that might arise AMONG the states.
3. Attempt to deal with the tension between state sovereignty and central federal power
4. Gave central federal government specific powers, resulting in a very weak/limited central gov’t (see p. 8 of casebook)
a) All other powers remain with the states
5. What was “missing” from Articles of Confederation, by modern standards?
a) No real executive or judicial authority
b) No ability to tax (important)
c) No ability to regulate commerce (important)
d) No bill of rights
C. Development of the Constitution
1. Problems with the Articles that led Madison to develop idea that stronger federal government was needed to ensure that states did the right thing for the COMMON GOOD:
a) States failing to comply with the Articles of Confederation/Federal Government’s regulations
b) States treading on federal authority – doing things that federal gov’t supposed to do
c) Multiplicity/conflicting laws between the states – confusing
d) Skepticism of minority power
2. Pure republic as a system of governance: Focused on values of civic virtue
a) Individual citizens should be involved in the political process, and resolve their own issues between themselves through discussion and dialogue
b) Did not need a centralized, remote government to fix problems that local people had that they couldn’t resolve themselves through this town hall model
D. Madisonian Republican Theory
1. Civic virtue is at the heart of republican theory. Civic virtue is the idea that people will subordinate their private interests to the public good. Dialogue and discussion are key to this process. Modeled off the idea of a town hall meeting.
E. Anti-Federalism
1. Opposed expanding the central federal government. Skeptical of representative government.
2. Believed the new system would exclude people from public affairs and the political process.
3. Wanted people to constantly be engaged in public and political discourse and decision-making.
4. Saw tension between the republican idea of local governance and the notion that a distant, central government could tell people what to do.
5. Concerned that new constitution removed people from political process.
F. Federalist 10
1. Factions (p. 12): Primary problem in governance; Small groups driven by passions that are adverse to the rights of others and/or the common good.
a) Source of factions – unequal distribution of property and power
b) Madison believed that factions cannot be eliminated. But he thought their effects could be controlled through two mechanisms:
(1) Representative government— refine and enlarge public views by screening them through a group of elected officials.
(2) Large republic—more options/opportunity for accurate representation. Large number of participants screen out people with bad intentions from gaining power.
G. Federalist 51—
1. Madison believed that humans are by nature self-interested and ambitious.
2. Madison is developing the theoretical context for key ideas that we see throughout the constitution.
a) In order to control the problems of factions and self-interest he advocates “double-security” (p. 19-20).
(1) Separation of powers— Each part of government (judiciary, executive, and legislative) is independent of the other and can check one another.
(2) Federalism — Distribution of power between federal and state governments.
b) By diffusing power, each entity’s interests and ambitions keep an eye on one another.
(1) “Ambition must be made to counteract ambition.” Conflict between branches is by design, i.e. no one branch should have all the power
III. The Basic Framework
A. Learning Outcomes (Class 3):
1. Understand the historical and political contexts giving rise to the notion of judicial review
2. Understand the theoretical tensions that occur when one branch has sole responsibility to interpret the constitution
3. Understand the role of sovereignty in disputes concerning Supreme Court jurisdiction ove
reverses and remands the case back to the Virginia Court of Appeals with instructions to enter judgment in favor of Martin.
4. Virginia Court of Appeals refused to follow U.S. Supreme Court’s order.
a) The U.S. Supreme Court held that it had appellate jurisdiction of state court decisions concerning constitutional issues via §25 of the Judiciary Act of 1789.
b) The Virginia appellate court argued that §25 was unconstitutional because it infringed on Virginia’s sovereignty as a state. They argued that Congress impermissibly expanded the Supreme Court’s appellate jurisdiction beyond what was enumerated in the Constitution.
(1) Virginia’s State Sovereignty argument:
(a) The Judiciary Act is in conflict with the plain meaning and reading of the constitution itself.
(b) The Constitution is silent on this matter – so the courts do not have jurisdiction. The silence shows the framers did not want to extend that power to the federal courts.
(c) Constitution was never intended to act upon state sovereignties. It only acts upon the people (p. 40).
5. Issue: Does the U.S. Supreme Court have authority over Constitutional decisions made by state courts?
6. Justice Story’s response to Virginia’s claim
a) “It is the case, and not the court, which grants jurisdiction.” (p. 39)
b) State sovereignty is not absolute (p. 40)
(1) Various aspects of the Constitution limit state sovereignty. States had already given up a great deal of their sovereignty to the federal government (entering into treaties, coining money, etc.) by ratifying Constitution, so they were clearly not sovereign entities in any absolute sense
c) Interesting language used by Justice Story to frame federalism and state sovereignty, e.g. “stripped,” “given,” “bound by the paramount authority of the United States” (p. 41)
7. Story gives three reasons for the importance of the Supreme Court’s appellate jurisdiction of state court decisions:
a) States are often in conflict with each other, and these state jealousies often translate to state disdain for federal rights. Thus, it is appropriate for federal judges to have oversight over federal rights in each state.
b) Uniformity of decisions on Constitutional matters. The law regarding the Constitution must be the same in every state.
(1) Rights should not vary depending upon where you are
c) To protect the interests of all people in the United States from forum-shopping advantages enjoyed by the plaintiff in their home-state court.
E. Learning Outcomes (Class 5):
1. Understand the different methods used to interpret the Constitution
2. Understand the shift in the Court’s approach to constitutionalism from Marbury to McCulloch.
3. Understand the different arguments regarding the existence of “natural law”.
F. Recap:
1. Marbury v. Madison and Martin v. Hunter’s Lessee represent the initial outlines of the Court’s powers of judicial review and appellate jurisdiction over state court decisions on constitutional issues. This next section of the syllabus explores the different methods used to interpret the Constitution. Think about which methods are used, when they are deployed, and whether you find each approach persuasive or useful.
