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Constitutional Law I
University of California, Hastings School of Law
Paul, Joel Richard

Paul, Fall 2003

A.) Historical

Articles of Conf: adopted to unify states, but w/understanding that each state retained sovereignty. Created only legislative branch, but no pwr to tax or regulate commerce. Probs: interstate jealousies, disunity in foreign relations, need for revenue, no standing military, economic instability, social unrest, states’ failure to fulfill obligations.

2. Trewitt v. Wheaton – butcher refused to accept RI paper $, fined w/o jury trial.
a. SC – fine w/o jury violated state cx
b. Another state, MA, tries to pay off debt w/tax revenue instead of print $, protecting wealth but hurt farmers who couldn’t pay, led to Shay’s Rebellion.
c. Led to Cx’l Convention

Federalist (Hamilton) – should concentrate pwr at the nat’l level. Vest more pwr into 1 person – the president.

Factions are primary prob of govt. B/c factions are less able to command maj where there’s great diversity of interest over large geographical area, hetergenous republics less susceptible to oppression by factions than small homogenous communities. Federalist no. 10 (Madison)
To contl abuses, separate govt into 3 independent branches, each w/checks upon the others. Federalist No. 51 (Madison).

Anti-Federalist (Jefferson) – embraced republican principle of civic virtue – people are fundamentally good. Pwr is fundamentally corrupting. Thus, should govern at local level. Give pwr back to people, to local gov’t. Decentralization imp b/c civic virtue flourishes best in small homogenous communities.

1.) Judicial Review

Origins: nothing in Cx expressly gives SC pwr to rule on cxality of acts of Congress or state statutes, nor pwr to review state ct decisions. Art III merely creates SC and extends judicial pwr to “all Cases, in Law and Equity, arising under this Cx, the Laws of the US, and Treaties made. . .under their authority.” § 2 spells out cases where SC has original jx and that in all other cases, Ct has app jx.
Judiciary Act of 1789: Congress created lower fed cts, but did not give them genl jx in civil cases arising under fed law. State cts had jx. SC authorized to hear 3 types of cases on appeal, involving state ct rejection of claims made under fed law.
Review of Acts of Congress: authority of SC to review acts of Congress not in Cx. In early days, dispute re propriety of this doctrine.

Hamilton: Federalist No. 78 argues that judiciary is least pwrful of branches of govt, neither controls pubic funds nor military. Independence of judiciary allows it to guard Cx and individual rights from improper actions of other branches. Judicial decisions must be governed by Cx rather than by any contrary statute.
Jefferson: (Anti-Federalist) each branch responsible to determine cxality of own actions, judges should not be ultimate arbiters of all cx’l questions. But recognized that cts would face cx’l question more often than other branches.
Judiciary Act of 1789: Congress also gave SC pwr to issue writs of mandamus to US officials.

Lawrence v. Texas (US SC June 2003)
F: Police observed Lawrence engaging in sexual act w/another man. Arrested under TX statute criminalizing “deviate sexual intercourse w/another individual of the same sex.” Lawrence challenge arrest. TX law, unlike Georgia, does single out homosexuals.
PH: trial de novo in Harris Cty Crim Ct, petitioners challenged statute as violation of Equal Prot Clause of 14th Amend & of TX Cx, which were rejected. Petitioners entered plea of nolo contendere, fined. TX Ct of App rejected cont’l args & affirmed convictions based on Bowers v. Hardwick.
Dissent (Scalia): Should try to be consistent, stare decisis. Ct was willing to strictly adhere to Roe v. Wade even though highly criticized. Precedent now result-oriented e

nalize. Majority changed their position.
– Scalia says people are hurt by changing rule b/c there are many who believe it’s an abomination. Morality woven into the law: bigamy, prostitution, incest. All of those laws are based on nothing more than moral attitudes.
– We were absolute on stare decisis re Roe. Thus, should be too on this case.
– Distinction of Roe and Bowers: the TX people who rely on the criminalization of sodomy aren’t affected but Roe women are.

Anti-majoritarian difficulty: there’s something fundamentally antidemocratic of having 9 men to make these decisions for us. Must reconcile judicial review with what country is about.
Role of morality in interpreting Cx: Whose opinions count?: Gallop poll of general society or attitudes of most judges, law profs. Foreign gov’ts?

2.) Original Jx

see attachment

Marbury v. Madison
BL: Where Cx as interpreted by the SC, conflicts w/laws enacted by Congress, the SC may declare such laws uncx’l & invalid. (Original jx can’t by expanded by Congress).
F: Marbury was a last-minute judicial appointee of outgoing Pres Adams, whose commission was not delivered to him b/4 Adams left office; Jefferson, the incoming Pres, declined to deliver the commission.
1. Established judiciary’s pwr to declare fed legislation uncx’l

3.) Appellate Jx + Judicial interpretation

Martin v. Hunter’s Lessee
BL: The Cx permits the SC to exercise appellate jx over cases pending in state cts.
F: The VA Ct of App refused to submit to the US SC’s exercise of