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Constitutional Law I
University of California, Hastings School of Law
Bhagwat, Ashutosh A.

I. Constitution, generally
A. For framers, single most important guarantor of individual liberty is democracy—the idea that people who run the gov’t must be accountable to its citizens.
B. Sets up Republican form of gov’t, not a democracy.
C. Representative democracy? Well . . .
(1) In 1787, only House of Representatives was directly elected by people.
(2) Senators picked the President
(a) Every state has passed legislation saying they’d elect Pres. by popular vote.
(3) State legislatures picked the senators.
(a) Of course, state legislatures were directly elected.
(b) Now direct election of Senate added by 17th Amenment.
(4) President appointed jutices
D. Additional restrictions
(1) Only people with more than 10,000 acres could vote.
(2) Only white men could vote
E. Reasons for restricting:
(a) Did not have faith in popular democracy—believed in restricting who could vote
(a) Had concerns about democracy—see the creation of the Senate.
(a) Fugitive slave clause
(b) 3/5 clause—increases Southern representation based on slave population
(c) Guarantee that slave trade not end until 1808
F. Articles of Confederation
(1) One national governmental body
(2) States voted by state—each got one vote [delegates were representatives from the states to the Congress] (3) Confederate Congress had no power to regulate commerce, no taxation power, no power to set up military, military called into service—no general police force, no way to enforce federal law. [Similar to UN].
(a) Problem: when you want to take military action, dependent on member states sending troops.
(4) No executive branch—no person in charge of enforcing the laws.
G. Two most important changes from Articles of Confederation:
(1) Congressional authority suspended
(2) Presidency—have a permanent national executive figure that represents the federal government, creates a face it didn’t have before.
(3) Constitution recognizes that U.S. is a sovereignty—and can create government not dependent on states.
(a) Articles, F. Gov’t provides aid in times of war; in the Constitution, federal gov’t has significant role to play. It creates a general government.
(1) “We the people of the United States”
(a) Recognizes importance of popular sovereignty
I. ARTICLE I—Congress
(1) Bicameralism
(2) House of Representatives
(a) More numerous
(b) Younger
(3) Senate
(a) Smaller
(b) Older, more established, richer
(c) The “House of States”—state senates chose the senators.
(4) Art. I, Sec. 8 lists legislative powers:
(a) Congress can’t make criminal laws.
(i) UNLESS—necessary and proper clause.
(J) Art. II: the Presidency
(1) Unitary presidency—all executive power is given to one person
(a) Vice President has legislative power
(2) Executive power is limited—envisioned as foreign policy office. Commander-in-Chief of army, makes treaties, receives ambassadors, diplomatic powers. Otherwise, limited to executing Congress’s laws. Domestically not much there. [In modern era, this understates president’s power; a lot of power has shifted from legislative to executive branch.] (a) Federal agencies came under FDR.
(3) President not elected directly. Electoral college was chosen by state legislatures.
(4) Election of 1800: tie between Thomas Jefferson and Aaron Burr—they were running on a ticket. Framers did not envision political parties. Framers had not predicted the way politics would evolve.
(K) Art. III: the Courts
(1) Unusual: Supreme Court is independent branch of government. Idea of creating a judiciary separate from Congress and a distinct form of power was important.
(2) Supreme Court justices appointed by president
(3) Life tenure
(a) Best guarantor of independence
(4) Vague about structure of judiciary
(a) Number of justices not set in stone
(i) If you were Congress, and wanted to weaken the President, reduce the size of the Supreme court when vacancies come up.
(b) Structure manipulable for political reasons, but Congress just hasn’t done it. “Congress can manage all courts.”
(c) Framers were fuzzy on the role of the judiciary
(i) No one envisioned judiciary being as important as turned out to be.
(ii) However, it was one of the most feared institutions by opponents of Constitution—anti-federalists wrote against the federal judiciary because it was the only branch without an effective check on its power. Most undemocratic of branches
(L) Art. IV
(1) “Full faith in credit”: force states to act as parts of one country.
(2) “Republican form of gov’t” clause: ensure that all states are made democracies
(3) Fugitive slave clause
(4) All of these make sure that states pull together and don’t pull apart.
(M) Art. V
(1) Hard to amend Constitution—very small minorities can block amendments
(a) Ratified by ¾ of state legislatures
(b) 2/3 of House & Senate or 2/3 of states propose amendments
(c) As opposed to CA, where Constitution can be amended by simple majority vote.
(2) Why have difficult amending process?
(a) More stability in the government
(b) Institutions created by Constitution were product of careful thought and compromise, and you don’t want them to change easily.
(c) Let people focus on issues of the time—you can focus on policy issues rather than big structural issues, which should be settled already.
(3) Cons to difficult amending process / stability
(a) Jefferson found Art. V problematic, because can’t adapt.
(b) Framing era was pre-industrial era. No communications, no transportation. The institutions were framed for different society.
(c) Forces us to creatively interpret the Constitution. [Tight Constitution = loose interpretation.] (d) Constitution doesn’t come from the people.
(i) What constitutes the American people today is different from 1787.
(ii) Constitution is enforced against the will of current majorities—when you strike down a statute on the grounds that it’s unconstitutional. [Counter-majoritarian.] (e) If Art. V were not as strict, this problem would not be as severe.
(N) Art. VI: Supremacy
(1) Supremacy clause: federal law supreme over all state law, including state constitutions
(2) Clause 3: all officials must swear an oath to uphold the Constitution—concept that all gov’t officials are bound to national government.
(O) Art. VII:
(1) Nine states had to ratify out of thirteen—don’t need unanimous consent.
(A) Madison sees problem as [majority] factions.
(1) What makes a majority into a faction, is it goes against the public interest. Which requires a belief that “public good” can be discerned.
(a) Paper money is against public interest supposedly [inflationary] (b) Madison concerned for property owners—worried about factions of non property-owners in favor of wealth distribution
(2) What’s the difference between a democratic majority and a faction, once you stop accepting Madison’s assumptions?
(a) Most would agree that the majority is not always right.
(B) SOLUTION to factions: new national government, less prone to factional control
(a) Representatives are more likely to work in the public interest than in their own self-interest. Likely to be a better sort of person—better-educated—and therefore less prone to putting self-interest ahead of national interest
(2) DELIBERATION: Representatives can deliberate, talk to each other, discuss in thoughtful way that direct democracy would not permit [can’t have town meeting model on nationwide scale] (3) DIVERSITY
(a) More diverse representatives representing more diverse jx, people are less likely to glom together, because can’t figure out what common self-interest is. Too many people with too many interests.
(a) More people to pick from—people who get selected are more likely to be qualified and wiser
(b) People selected will be harder to manipulate, because there will be distance between representatives & voters.
(1) “Enlightened statesmen will not necessarily be at the helm.”
(a) The more different viewpoints are represented, the richer the political dialogue—more deliberation, more thoughtfulness, better policies.
(i) Whereas classical republicans believed best were entities that were homogenous, where people got together and collaborated
(ii) Madison makes a virtue out of conflict.
(iii) Supports stalemate, inactive government: “Unless you can get together on a compromise that makes sense, do nothing.”
(2) “There’s such a disconnect between the people and the people in control, they’ll be hijacked by special interests”:
(a) House of Representatives provides check against special interest control, bribery (minority factions)
(b) House makes sure special interests don’t hijack gov’t; Senate and executive make sure factions don’t.
(D) These arguments were incredibly offensive to proponents of the Constitution
(i) Advocated the status quo—the wealthy keeping their wealth
(ii) Suggested people couldn’t govern themselves; counseled distance between governors and the governed. Founders believed in active citizenry.
(iii) Jeffersonian Republicanism, meanwhile, is rooted in idea that people are perfectible, and will do the right thing. Madison is more skeptical about people. Wants system that is less democratic in traditional sense.
(A) Answers question what happens if representatives decide they

ng whether you think a piece of legislation is constitutional?
(b) President or Congress flouting a decision would be lawless behavior today; however, that does not necessarily mean that other actors have to comply. In Cooper, there was a judicial injunction in place. But what about the hundreds of other schools who had not yet been subject to an injunction requiring desegregation?
(2) There’s an advantage in finality.
(A) McCulloch v. Maryland: is the Bank of the U.S. constitutional, because it is not listed in the enumerated powers in Art. I, Sec. 8?
(1) Textual:
(a) Necessary and proper clause.
(i) “Necessary” means “reasonably necessary,” which means “convenient.”
(ii) Must be tied to an enumerated power. [See Lopez.] (iii) This expands federal power and weakens state power, including the 10th Amendment.
(b) The Supremacy Clause
(i) “The power to tax is the power to destroy.” State legislatures can’t be trusted with the power to destroy, so the state tax must fall.
(ii) This conclusion is based on no constitutional text.
(2) Structural:
(a) When Maryland taxes a federal entity, it’s taxing everyone in the country, but does not represent everyone in the country.
(3) Policy:
(a) Based on belief that strong national power was essential to make this country effective.
(b) “We must never forget that this is a constitution we are expounding.” Constitutional interpretation is not like other legal analysis, because constitutions are by nature vague documents.
(4) Deferred to legislators’ interpretations—to what extent should the Court take into account the Constitutional views of the other branches?
(a) Congress wins! One reading is that we should not always interpret flexibly, but should interpret flexibly when talking about democratic power.
(5) Decision based on idea that courts should intervene when there’s a predictable democratic failure.
(6) Jefferson believed that national power should be limited sharply, mostly to foreign affairs.
(A) Appointment confirmation process:
(1) Senate may take into account political views of nominees in deciding whether to confirm them. However, this goes against the premise of Marbury, that the Supreme Court is less political.
(B) Impeachment: remove Supreme Court justices for high crimes and misdemeanors.
(C) Amend the Constitution: four amendments directly reverse Supreme Court decisions.
(D) Exceptions and regulations clause: Congress controls the jx of the Supreme Court, but probably could not strip the Court of its jx entirely.
(1) Ex Parte McCardle: Congress passed a law specifically to ensure that McCardle didn’t have a court appeal of an Act of Congress that was arguably unconstitutional.
(2) Modern view: unless Congress specifically grants the Court jx, it meant to except that jx.
(3) Potentially the Exceptions Clause can be used by Congress to cover its own tracks, stripping the Court of its jx whenever it’s afraid the Court will find a law unconstitutional.
(a) Checks on this check: petition clause, procedural argument, establishment clause.
(i) Fact that it’s phrased as an “exception,” which implies a narrow exception, and arguably a procedural exception.
(ii) Procedural argument—language of Art. III, Sec. 2: power of Congress limited to changing jx re: cases, other than substantive areas? [The exceptions and regulations clause is written in procedural terms.] (iii) Structural argument that the Court has a role to play in the separation of powers, and that if Congress takes away this check, it violates the separation of powers.
(iv) Petition clause [“Petition for grievances”], see p. 85?
(v) Establishment clause: a school prayer statute would violate the establishment clause