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Constitutional Law I
University of California, Hastings School of Law
Amar, Vikram D.

Constitutional Law I
Professor Vik Amar
Fall 2004
I.                    Introduction to Con Law
a.       This course focuses on structural issues: Constitutional before bill of rights, and subsequent amendment, process of amending constitution, electing a president, etc. Huge theme: federalism (relationship between federal and state) and separation of power (3 branches).
                                                   i.      In contrast, Con Law 2 focuses on the 1st and 14th amendment to the Constitution – the interaction between government and individual (minority group rights). Overlap: Roe v. Wade seems to be a Con Law 2 issue, is lumped into end of Con Law 1.
                                                  ii.      Criminal Procedure also looks at the constitution: focus on 4th, 5th and 6th amendment. 
                                                iii.      Although divided up arbitrarily, things do connect as a interrelated whole.
b.       Surge of Con Law 1 developments in the past 20-30 years. The Rehnquist Court will be known for: 1) Rethinking of federalism – state autonomy; 2) Articulation of a court centered view of the world – judiciary as the most important of constitutional principles. Example:
o        Impeachment of president 2 times in US history
o        Contested presidential election (Bush v. Gore) – Art. 2, § 1, cl. 2– “each state shall appoint, in such Manner as the Legislature thereof may direct…”. Three justices of USSC say that we can’t mess with the Florida legislature. 
o        “War on Terrorism” –judiciary vs. executive branch. Guantanmo – focus on jurisdiction to hear habeas cases.
o        California developments:
Ø       Recall of governor – elections as a relationship between people and their representatives
Ø       Gay marriage – raise 5-6 legal controversies:
·         Violation of liberty or equality to allow same-sex marriages? (Con Law 2)
·         CA SC: Local official doesn’t have the right to give gay marriage licenses unless the judiciary say it’s ok (re: who gets to decide, not the meaning of the provision) (Con Law 1)
·         Whether one state has to recognize another state’s same sex marriages (Con Law 1)
·         Federal Constitutional amendment (Con Law 1)
·         Jurisdiction stripping: Bill passed through House said lower courts don’t have jurisdiction under defense of marriage act (DOMA) – which says each state doesn’t have obligation to recognize same sex marriages of another state. Congress may not be able to override Constitution via DOMA. There is some fear that the federal courts would strike down DOMA, so they pass the bill to strip jurisdiction of the courts re: DOMA. 
c.        Class methodology
o        WHAT: Provisions of the constitution – what do they mean? 
o        WHO: who gets to decide what the constitution mean? Who has the final/preliminary/only say? Often – it’ll be the court, but sometimes it’s not. 
o        HOW: How do we decide what the Const mean? What tools or sources of law can we use to argue in favor of a particular substantive part of the constitution? Modes of constitutional argumentation and discourse
Ø       Words of the document themselves (helpful, and sometimes dispositive. Always a starting point!). Ex. age to be president – you can talk about it and discuss what 35 means in 1787, but most people agree that 35 is what we are stuck with. Ex. 2: 2/3 to ratify – that’s what it means! 
·         However, often the text is not that clear or that specific. Has to use other means to interpret.
Ø       Circumstances that generated the text: historical arguments: can do this at varying levels of generality. We can look to see what the narrow subjective of the words mean by the people who wrote them behind closed doors. OR, we can focus on the subjective understanding of people who ratify them (always more powerful).
·         For both those things – we may use dictionaries of the day, specific discussions people had (ex. the Federalist), history at a higher level of generality (ex. 14th is about African Americans à racial minorities à getting rid of social classism). 
Ø       Structural Argument: Value/Norm/Theme of Constitution – ex. Impeachment of Clinton, the Senate was presided NOT by the Vice President, but the Chief Justice William Rehnquist. But where did he get the power to do that? In the impeachment provisions, it says that with impeachment proceedings, then the Chief Justice will preside. Why not VP? Because there’s a deep COI. Ex. 27th amendment – congress can’t get pay raise unless an election has just taken place, and it’s the same COI idea. 
·         What if the VP is impeached? Who will preside? If we focus only on the text, then the VP is still head of the Senate. But the powerful structural argument against such a blatant COI.
Ø       Precedent – ex. in Blakey – jury rather than a judge has to determine an upward departure of the sentence, because it violates the 6th amendment to have the judge do so. Precedent matters only when it was wrong. We rely on precedent when we don’t want to answer the question because it’s already been answered. 
·         Although helpful, it’s not just judicial precedent. It may be what people have said in the past.
Ø       Pragmatism – common sense – can’t do it otherwise: 
·         Constitution as a deeply conservative document. Bill to law à President and 34 senators can block the law from going into effect = minority can block majority sentiments. Or amendments à smallest 13 states (with 5 million people) can block 37 states (280 million people). 
·         As a radical document – it was the most progressive bold experiment at the time. But in the abstract, not radical. It was an experiment that was meant to work. Ex. look for pragmatism in McCulloch v. Maryland).
·         Ex. Const did not specifically give Congress power to create Air Force, because then there was no flying. However, we would read it to do so – we fill in the blank with common sense.
II.                  The Constitution, Judicial Review and Jurisdiction Stripping
a.       History of Enactment of Constitution
                                                   i.      1776: Declaration of Independence: by Jefferson on behalf of 13 states
1.       A case for independence, and against taxation without representation.
a.       Motivation behind declaring independence: GB trying to enslave colonists, make them pay for the cost of the French and Indian War.
2.       Popular sovereignty – think of it as “location of lawful/legitimate decision making power.” In GB, no question re where sovereignty lay – it lays in the king, who can do no wrong, because this power comes from God. For popular sovereignty – all persons are created equal and the people have the right to govern themselves. This is an important theoretical shift.
3.       “Inherent right to alter and abolish, and institute a new Government”
                                                  ii.      Articles of Confederation: why it didn’t work?
1.       Weak centralized government, power lay within the states and lower government. Based on colonists ideal that GB was tyrannical across the geographical distance between the two worlds
a.       Sovereignty in the 13 states – they are nation states unto themselves, that enters into this league (like UN or League of Nations). Majority of people rule – but majority was undefined
b.       No meaningful executive branch, just a legislative body. That body has to go through state gov’t when it wanted to do something important. So can’t raise revenue and raise troops, as they can today.
2.       Between 1776-1787, it’s clear that unless there’s a more cohesive centralizing course, it’s not viable as a defensive and military power.
a.       Although there was a common goal against imperialism, there were a lot of differences between the states – their economies, religions, etc. They needed a stronger infrastructure to ward of imperial power. 
                                               iii.      1787: Philadelphia Convention
1.       Legality question of the Constitution – originally Convention was set to revise the Articles of Confederation. Also, Articles say that no changes unless there’s unanimity by all 13 states (Constitution only requires ratification by 9 out of 13). Answer:
a.       Articles have no legality – under Int’l law, treaty breach = no binding law.
b.       Ratification is by the people of each state – People have a right to decide what they want, and that right supercedes old ways
2.       Central government and strong executive: For state to survive – need 1) a stronger centralized government (Congress) and 2) a strong executive branch, and one that is independent of Congress – not through legislative election. 
a.       Practical selection process: Electoral college
                                                                                                                           i.      Leaves it up to the states
                                                                                                                          ii.      With limits – electors cannot be Congressmen or Senator(independent of legislative branch)
3.       Sovereignty moved from the people of each state to the people of the United States (another theoretical shift)
·         If sovereignty was in people of each states, the people of each state has the lawful right to ignore central government. The idea of “nullification” – disregard laws that it doesn’t agree with because the states themselves remain sovereign. The extreme form of nullification is succession.
·         HOWEVER, Article 7 allows each state the power to NOT join. Each state had the option of staying out, and ratification was very close in a number of states. 
o        If they had a choice not to opt in, doesn’t that mean you have a choice to opt out? No – not necessarily. People in each states don’t have the right to undo the Union. Ex. in corporations, a merger has to be approved by majority of shareholders in Company A and Company B. However, Company C after formed cannot be dissolved by a majority of Company A’s shareholders – we have to look at Company C’s shareholders. 
·         But as a practical matter, once 9 joined, there’s a lot of pressure for other to join, in case GB and other countries will exert their imperial power. It’s much harder to go your own way. 
§         Dilemma confronting the Founders – “how do you empower government in a way to create stability and good order, without giving government so much power that it becomes a threat to liberty and autonomy, the way GB did?” What is the correct balance? There were three distinct strategies (and a modern one):
1.       Modernly: Judicially enforceable rights – we articulate certain rights in the constitution, and those limits and boundaries are enforced by an independent and intellectually robust judiciary. Main strategy that we relied on now.
2.       Limited enumerated power – federal government would have only those specific things that are affirmatively given to it, and NO MORE. Not general power subject to limitations. State governments are governments of general or plenary powers. (Also done in federal and state courts re: jurisdiction). 
a.       Commerce clause gives Congress the power to do a lot. But USSC says that this is not so broad, and tried to limit it. 
3.       Bill of Rights – the first 8 identify some individual and group rights that the Government has to respect. 
a.       It’s really part of the original Constitution – ratification would not be assured in states that was on the fence if there wasn’t a promise of a Bill of Rights provision. Fed. Bill of Rights patterned after State Constitutions. 
b.       Some thought the BOR was unneeded and counterproductive – because those things the BOR protected was not subject to federal power to begin with. Mr. Sherman on p.19 – re: power of the press – said “it is unnecessary, the power of the Congress does not extend to the press.”
c.        Original bill of rights is NOT about limiting states — 14th amendment not passed yet. 
4.       Competition between institutions – includes federalism and separation of powers. We create competition for the hearts and minds of the American people, to blow the whistle on each other on doing bad things. Horizontal competition between the three branches and vertical competition between state and federal government. These watchdogs are the most important safeguards of liberty – jealous incentive to want to blow the whistle on the others.
b.       Judicial Review – Marbury v. Madison
                                                   i.      Background: (In addition to being legally significant, this opinion is also of political importance.)
1.       Prior to 1800 election – George Washington was natural choice because he had no sons of his own. 
2.       By 1796 – two parties emerged: Republican Party and Federalist party (not to be confused with “The Federalist Papers”). 
3.       During Adam’s term (Adam was head of Federalist party), Jefferson was VP (head of Republican) – ok before 12th amendment.
a.       Prior to 12th amendment: electors vote for two people. Person with most votes is president; second most is vice president.
b.       With emergence of parties, if there are more federalist, then the two people all federalists pick would tie for first. If that happens, then the choice goes to the House (Jefferson and Burr) – and there, each state gets one vote (not each rep gets one vote), so not certain party that nation want would win.
                                                                                                                           i.      Strategy: to have a couple of people not vote for one person, so there can be a 2nd choice for VP.
                                                                                                                          ii.      Problem: in close race, creates opportunity for the other party to swoop in and get to be VP.
4.       Election of 1800 –   Jefferson won over Adams. Federalist losing power – passes statutes creating new judgeships, which Adams nominated. One of the things he passes is justices of peace in the DC areas (like admin judges today). Marbury is one of the handful of judges to whom Marshall (secretary of state for Adams, later the chief justice that wrote the opinion) has not delivered the commissions. Then Jefferson comes into office, with some commissions still not delivered. He directs his secretary of state Madison NOT to deliver these commissions. Marbury, feeling that he has a right to this justice of the peace ship, and to ask the SC to order Madisonto deliver commission to him (writ of mandamus). 
a.       Conflict of Interest side issue – very bizarre for a judge (Marshall) to review his own acts or omissions in other capacities. Here it’s his own actions that are in the center of the dispute, and it’s his brother’s actions that’s in controversy.
                                                  ii.      Marshall’s opinion: three questions:
1.       Does Marbury has a right to get his commission delivered? YES – it was signed and sealed. So it’s complete and legally effective. 
·         Delivery is important in certain areas of law (K). 
1.       If delivery is not important: He can just start judging cases. But then the question is whether he would have gotten paid for it. Then he can sue for his work.
2.       Leads to whether mandamus is a proper remedy. Would it be proper for lack of salary?
·         Marbury’s commission – NOT a Article 3 judge: the president can fire him at will, he’s an executive branch employee appointed by the president. They do not have the lifetime guarantee.
2.       If he has a right, does he have a legal remedy? YES – essence of civil liberty = give remedy for loss (p.27). Idea that “where there’s a right, there’s a remedy.”
·         Two kinds of duties of the President:
1.       Certain functions of the president where the judiciary can’t interfere. Ex. president’s reason to veto a law, pardon, etc.  There are some presidential powers that don’t give raise to legal rights. 
2.       Contrast these discretionary decisions with other “duties to perform ministerial acts.” Bottom of p. 27:
§         Where we say there are violations of law, court has to be able to tell even a president to respect that right. (This rhetoric has not been followed – ex. where courts don’t have jurisdiction to enforce legal rights).
-The line between political discretions (no exam) and legal rights (yes exam) is not as clear as Marshall makes it out to be. Ex. executive secrecy or executive privilege. 
3.       If he had legal remedy, is mandamus in this court the appropriate legal remedy? Subquestions:
1.       Is there a statute that authorizes jurisdictions in this case? Answer: no jurisdiction – makes first two questions only dicta! 
a.        Judicial Act of 1789 (p. 29 footnote b): “The SC shall have appellate jurisdiction from circuit courts and courts of the several states, and shall have power to issue…writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the US.” Authorize jurisdiction?
o        Yes: Madison = person holding office

                                             ii.      United States v. Klein (p. 40) – Loyalist can recover property captured during the American revolution. In US v. Padelford, the court interprets a statute to mean that a person who was not a loyalist but given Presidential pardon also can recover property. Outraged by this, in 1870, Congress amends the statute to hold you do not get your land back, because pardon = conclusive proof of disloyalty.
1.       Instead of dismissing for lack of jurisdiction, SC held that the 1870 Act was unconstitutional!
2.       Explanations to difference of result as McCardle:
a.       Klein not about jurisdiction stripping, but regarding Congress vs. President’s power. McCardle is clearly about jurisdiction – see language used in case.
b.       Klein is about how to resolve the case, where McCardle does not go into the case because no jurisdiction.
                                                                                                                           i.      Therefore, dismissal under Klein has res judicata effect, but McCardle does not.
                                                                                                                          ii.      Ex. if SOL change from 3 years to 2 years, and π filed case 2 years and 11 months – π should not lose his claim because of this.
III.               The Jurisdiction of Federal Courts in Constitutional Cases
a.       Supreme Court Review of State Court Decisions – Martin v. Hunter’s Lessee and Michigan v. Long
                                                   i.      Martin v. Hunter’s Lessee – Lord Fairfax owned property in Virginia, which were confiscated by the state under state legislation. Fairfax’s heirs argue that their rights were supported under treaty between US and GB. After USSC reversed the Virginia SC and decided Fairfax’s heirs get the property, Virgina refused to comply with the decision.
1.       Jurisdiction: Judiciary Act of 1789 §25 – list three classes of state court cases that can be reviewed by the Supreme Court: 1) validity of a treaty or federal statute, and decision against their validity 2) validity or authority of state law and the question is answered in favor of the state law 3) clause of the const or treaty or statute or commission, and decision against title, right, privilege and extension. Note: until 1914, these three provisions limit to cases where state court REJECTED claims under the Constitution and federal laws – state court sustaining claims = not reviewable. In Martin – most likely jurisdiction under clause #2.
2.       Who wins – state statute or federal treaty? Article 6 (Supremacy clause) says that federal treaty overrules state statutes! That is resolved the first time the case went up to the SC.
3.       Key question here: By not complying after USSC decision, Virginia is implicitly saying that SC didn’t have appellate jurisdiction over state court, so § 25 of judiciary act is unconstitutional. Their argument is that state and federal courts have two separate systems – SC can’t oversee the state courts. 
a.       Story’s argument that SC’s review of state courts is constitutional: based on Art III – State courts are courts of general jurisdiction, meaning that they will take cases involving the Constitution and federal laws. “Yet to all these cases the judicial power (FEDERAL power) by the very terms of the constitution (Art 3, Sec 2, clause 1 – “shall”), is to extend.” Because they arose in state court, the jurisdiction can’t be original – MUST be appellate. (p.45)
4.       Virginia’s structural argument:
a.       Appellate jurisdiction over state courts are “inconsistent with the genius of our government, and the spirit of the constitution.” These are key words to indicate that the structure of the constitution for federal and state governments doesn’t allow for this hierarchy.
b.       Reasoning:
                                                                                                                           i.      Virginia is a separate entity. However, this is not nullification/succession.
                                                                                                                         ii.      They are arguing that the Constitution was not designed to act on state sovereignties, just upon the people. If power over states, will materially impair sovereignty of the state
c.        Problems with Virginia’s argument:
                                                                                                                           i.      Not logical – power to regulate people doesn’t mean take away power over the states.
                                                                                                                         ii.      Story’s argument that federal courts can review state courts:
1.       See the Constitution – it is “crowded with provisions which restrain or annul the sovereignty of the states.” Ex., state governments have duty to set up electors in federal elections.
2.       Courts can review legislative branch and executive branches of the states, and that doesn’t violate the genius or structure of the Constitution. So state judiciary should not be exempted – all 3 of the Virginia branches are on the same plain. 
3.       Uniformity in federal law – need one court (US SC) to make decision for the whole land. Emphasizes the “necessity of uniformity.”
5.       Holding of the case: appellate power DOES extend to state courts, and §25 is not unconstitutional. Once this is explained – expect Virginia to respect it. We also respect state authority by not issuing orders on the merits unless necessary. 
                                                 ii.      Michigan v. Long (p.51) – adequate and independent idea
1.       Rule: Power of state courts in the cases that involve –
a.       State law: State courts are the last word on the meaning of state law – USSC can never tell state SC that they got it wrong. If a case involves ONLY state law, and it’s brought through state courts, it can never get to a federal court. True even if it could have qualified under diversity jurisdiction.
b.       State and federal law: adequate and independent state ground says that “when a state court resolves questions of state and federal law, and the resolution of the state law questions would independently support the result reached by the state court, then the SC lacks the power to review even the state court’s treatment of the federal question.”
                                                                                                                           i.      Rationale: NOTHING would turn on it. Fixing the federal mistake would not change outcome of the case because it rest on an alternative and adequate state court ground. State court would reach the same result regardless of whether it got federal question wrong.