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

I. The Constitution of the United States
·         Constitutional Law applies in all jurisdictions
Binds governmental (state) actors; does not bind private actors
o       Exceptions: two clauses which apply to private as well as governmental actors
1)      Article (“Art”) IV, Section (“Sec”) 2, Clause (“Cl”) 3: Fugitive Slave Clause. Slaves must be returned to their owners, even if they had escaped to a state without slavery
2)      13th Amendment (“Am”): Abolition of slavery
3)      18th Am: Prohibition
Other Restraints on Governmental Actors
·         Powers: Grants explicit power (original Con strategy to restrain Congress), limiting power that is granted
o        Congress (Art I, Sec. A). When it acts, two questions are asked:
§         Was it within Congress’s granted powers?
§         Does it violate someone’s rights?
§         14th Am: made Bill of Rights applicable to all States
o        10th Am makes the point that powers not delegated to the US are reserved for the States or the people
·         Rights: Protection of specific rights (9th Am make the point that not all rights must be enumerated)
o        Roe v Wade: Right to privacy, no explicitly granted right to privacy in the Con
o        Note: Con has no “State of Emergency” Clause or National Security override
Important Points on the Constitution
·         The Exceptions Clause – Art 3, Sec 2, Clause 2:Says that Congress can change the breadth of the Supreme Court’s appellate jurisdiction – does not apply to the Supreme Court’s original jurisdiction (but Congress can put something in the SC’s original jurisdiction into its appellate jurisdiction)
·         The Supremacy Clause – Art 6, Sec 2: The Constitution, the laws that further it, and treaties of the U.S. are the supreme law of the land (contrary state laws will not prevail)
·         The Equal Protection Clause – 14th Am, Sec 1: Requires states to treat equally all similarly situated classes of people 
·         Due Process Clause – 5th Am: SC has used this clause to declare that the federal government must abide by the equal protection measures spelled out in the 14th Amendment
·         Due Process Clause – 14th Am: Used to partially incorporate some of the Bill of Rights (see below)
·         The Necessary and Proper Clause – Art 1, Sec 8, Cl 18: Very important to the McCulloch decision
·         Commerce Clause – Art 1, Sec 8, Cl 3:Congress has power to regulate interstate commerce and trade with other nations
·         The Due Process Clause has also been utilized to recognize unenumerated rights, like privacy (Roe v. Wade)
·         Important: Which of the first 8 amendments in the Bill of Rights are not incorporated into the 14th Am Due Process Clause and thus not made to apply to the states specifically? Answer: Using the selective incorporation doctrine, the Court has incorporated every amendment save these four: 2nd Am, 3rd Am, 5th Am requirement of grand jury indictment, and the 7th Am.
II.            Judicial Review
Marbury v. Madison (1803, p. 22)
Facts:In the last days of his Presidency, Adams appointed justices whom the Senate confirmed but whose commissions had not been delivered by the time Adams left office. Jefferson succeeded Adams and refused to deliver Marbury’s commission. Marbury sought a writ of mandamus to compel Madison, Jefferson’s Secretary of State, to deliver the commissions.
Issue/Holding: Does the Supreme Court (“SC”) have power, under Judiciary Act of 1789 (JA 1789) (bottom p. 26), to issue a writ of mandamus (court order forcing someone to do something)? Yes.
Reasoning/Major Points:
·         Marbury has a right to the delivery of his commission. He was appointed by Adams to a position that is not removable at will by the executive. He is therefore entitled to all “evidences of offices” that pertain to this position.
·         Since Marbury has a right, he has a remedy. Marshall states that “the very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.” Further, he holds that this is a government of “laws, and not of men.”
·         Marshall establishes the right to judicial review, meaning that the courts have the power to interpret the Con and that the other branches of government are bound by this interpretation.
Marshall does not primarily use the text of the Con, which addresses the judiciary (Art III and Art VI) to establish judicial review. To do so would be circular: these are the very things that are being called into question.
Marshall turns to these 4 propositions:
1)      The fact of a written constitution. Inherent within written cons is that they are the paramount law of the land. The law established by the legislature is binding only in so far as it conforms to the con. It is the “emphatically the province and duty of the judicial department to say what the law is.” This is the “very essence of judicial duty.”
[Note: this justification does not answer why the JUDICIARY has the power to say what is binding as constitutional on the national government. It just posits that this is the “essence of judicial duty.”] 2)      The judicial power is granted to all cases arising under the con. This must mean that the judiciary must look into the con, all parts of it, to determine the validity of the law.
3)      Judges take an oath to support the Con.
4)      The Supremacy Clause: the Con is the supreme law of the land.
·         Political Question Doctrine:The courts do not have jurisdiction over questions that are merely “political” or “discretionary.” They have jurisdiction over questions concerning the rights of individuals.
·         The jurisdiction of the SC is confined to its original and appellate jurisdiction as laid out in Article III. [The Congress does have exceptional power to add to the appellate jurisdiction, see

JR’s comments: First part of the opinion classic originalist rhetoric. Court says that it is not the Court’s job to say whether laws are good or bad but to enforce the law as intended. The role of the Court is not to pronounce on the justness of the Con, just to interpret it.
**14th Am specifically overrules Dred Scott: equal protection laws refer not just to citizens but persons.
From pp. 431-35 (Note 2 through end of 435)
Slaughterhouse Cases (1873, p. 433): Rejected equal protection attack on LA statute granting to a single company the exclusive right to slaughter livestock, reasoning that it was the job of the States rather than the federal government to protect civil rights generally, and that the “one pervading purpose” of the 14th Amendment was “the freedom of the slave race…and the protection of the newly-made freeman …from the oppressions of those who had formerly exercised unlimited dominion over him.”
Strauder v. West Virginia (1879, p. 434): Struck down murder conviction of black man tried before a jury from which blacks were excluded. Strauder stands only for the proposition that statutory discrimination which deprives blacks of enjoyment of their rights is unconstitutional; it does not maintain that the state cannot draw distinctions among citizens based on gender, land ownership, age, education, etc.
United States v. Cruikshank (1875, p. 434): Following an election dispute, 60 freedmen were killed and mutilated. 3 of 97 defendants were convicted under the 1870 Enforcement Act, passed to enforce the 14th Am. The Court reversed all three convictions, holding that the 1870 Act did not apply to the actions of private individuals.
The Civil Rights Cases (1883, p. 435): Denied that the 13th and 14th Amendments empowered Congress to prohibit private discrimination in public accommodations.
Ho Ah Kow v. Nunan (9th Cir. 1879, AR)
Facts: HAK convicted under state statute and sent to prison, where his queue is cut off. Ordinance that states that male prisoners, for sanitary reasons, must have their hair cut to within one inch of their scalp. HAK challenges this as cruel and unusual punishment, arguing ordinance targeted Chinese in particular. 
Issue/Holding: Is the “Queue Ordinance” constitutional? No.
Reasoning/Major Points:
Law exceeds the authority of the “Board of Supervisors.” The legislature did not authorize them to