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Constitutional Law I
University of Cincinnati School of Law
Lockwood, Burt B.

Constitutional Law – Outline

Constitutional Overview:
§ This is the oldest written constitution. It was written for a weak power; a country 95% rural.
§ The framers were particularly concerned with the power vest in the executive. For example, the statute regarding the President’s salary requires that it can only be changed before/after term. This prohibits the legislature from punishing/rewarding the President for some action.
o 27th Am: Proposed by Orin Hatch (R – UT, of the Judiciary Comm). Any pay raise does not take effect until after the election (1992). This was one of Madison’s proposed amendments; he proposed 12 but only 10 were adopted.
§ VP’s role? John Adams did not attend Cabinet meetings because he felt he was primarily part of the legislature as the presiding officer in the Senate.
§ 9th Am: That a right is not mentioned in the BOR does not mean the right is withheld from the people. The Framers were hesitant to write a BOR for fear that such a statement could imply those not enumerated not present.
o For example, the right to marry has always been considered a fundamental, though not enumerated right.
§ The Framers did not think they need a BOR because they had created a limited government with limited powers, so there was no need for a separate BOR to restrain the government. However, the bargain required 9 states to accept to make a Constitution.
o Madison agreed and added the BOR.
§ How important has it been to amend the Constitution? The Constitution would have been accepted by the state conventions without the ability to amend. However, in over 200 years we have only had 17 amendments after the original 10 (which were effectively part of the Constitution).
§ In 1800, Burr and Jefferson tied for the Presidency, so it went to the House for a vote. The lame-duck house with a Federalist majority tried to make a deal. The 12th Am was a response.

The Constitution is our secular religion. American may not know what the Constitution says, but they are willing to die for it. How is that possible? How is it that this document has not changed much in 200 years?
§ Important to consider the rise of the USSC. It is, perhaps, one of the most prestigious institutions in the world. How has it done this?
o The USSC was under suspicion for the Bush v. Gore decision as a quintessentially political question. This suspicion evaporated after 9/11.
Constitutional Convention:
§ If we want the original intent of the Framers, it is that we would not be bound by their intent. See also: privacy of the convention; no notes; McCulloch and Constitution as a blueprint.
§ Secrecy to ensure candor and compromise (windows closed), but there was no legislative history to help/guide the early Supreme Court.
§ Madison (Father of the Constitution) took notes but they were not available for 50 years.
§ Framers though limited federal powers would protect individual rights. The federal government is one of enumerated powers.
§ Slavery: Mentioned four times in the Constitution: (1) Art. III §3 allows salve owners to reclaim escaped slaves. (2) Three-Fifths Clause (this was necessary to increase the power of the slave states). (3) Could not end the slave trade until 1808.
§ Compared to the other branches, Article III doesn’t provide many details as to the operation of the judicial branch. Article III does provide Congress the power to create further courts.
§ This Constitution did not resolve the tension between the ideas of individual states and a strong federal government.
§ State legislatures held Constitutional conventions so that the Constitution could be ratified by the people. The Constitution was approved by the people not the states. It was conventions of the states’ people that made the decision to ratify, not the state legislatures. This is important in finding the Constitution’s power derived from the people. It is not a compact between the states.
§ Federalist Papers: Effectively propaganda to convince states to agree to the Constitution, written by James Madison, Hamilton and John Jay. This also serves as legislative history along with state debates.

Establishing Judicial Review: The power of the Court to strike down acts of the legislative branch, judicial branch or states if unconstitutional.
§ This is a distinctly American creation (British tradition is different and allows effectively anything if passed by Parliament).
§ Constitution does not explicitly give the USSC judicial review and never expressly stats that the USSC can strike down laws of the legislature. Rather, Marshall says the whole phraseology of Art. III § 2 indicates the Court must defend the Constitution. Additionally, justices are required to take an oath.

Marbury v. Madison (1803)
· Adams nominated and Federalist Congress confirmed new Justices of the Peace. New President Jefferson, through Sec. of State Madison refused to deliver commission. One JofP Marbury requested writ of mandamus from USSC (court order to a government agency) to have the commission delivered.
(1) Does Marbury has a right to the commission he demands? Yes, because the commission was signed by the President and sealed by the Sec. of State, Marbury’s appointment was complete.
(2) If Marbury has a right that has been violated, do the laws of the country afford him a remedy? Yes, because this is a ministerial/executive requirement (executing a legislative mandate), not a political act, the President must perform; he does not have discretionary power. An individual who is injured has a right to resort to laws for a remedy.
(3) If there is a remedy, is it a mandamus from the USSC. No, the USSC does not have the power to hear this case because §13 of the Judiciary Act of 1789 is unconstitutional in bestowing original jurisdiction on the court not granted in the Constitution (Constitution defines USSC’s original jurisdiction).

Miscellaneous Notes:
· When there is a conflict between a statute and the Constitution, the Constitution is superior because of the Supremacy Clause (Article VI). It is the duty of the USSC, as the highest judicial body, to say what the law is not the legislature. Thus, the USSC has the authority to declare a Congressional statute unconstitutional if the Court thinks it violates the Constitution. This is judicial review.
· Absent judicial review the legislature was constrained only by its interpretation of the Constitution, which could be changed or twisted. Also a political check. However, Marshall said that judicial review is a necessary check on power.
· Marshall says ordering the writ a peculiary delicacy because it would be the USSC ordering the Executive to do something it does not want to do. However, he does not mind that the USSC now has the authority to create acts of the legislature void.
· An ignored order of executive action would undermine the legitimacy of the Court.
· Framers were distrustful of concentration of power that would result if each branch could interpret the Constitution for itself; the ideal of an umpire restraining the other branches was important.
· “The Genius of Marshall”: He used this case to establish the USSC as a force (i.e. judicial review); prior to this case it was thought of as the least powerful branch (the architect of D.C. forgot to give the USSC a building). In this case, he said the USSC had no power to make a decision but that showed the Court did have a greater power: judicial review. Marshall knew that Jefferson would not obey an order to grant Marbury his judgeship and when Jefferson disobeyed the Court had no power to enforce the order but this way Marshall’s decision required no executive action; it stood on its own and therefore established the USSC’s power and no other branch could do anything about it.
· Judicial review has weaknesses: No enforcement power, not elected, only reactive power – cannot initiate or advise.
· The USSC also has the power to declare leg/exec acts Constitutional.
· If an act can go either way (unsure), the Court should find it Constitutional.
· Marshall should have recused himself because of his personal involvement, but didn’t. Marshall was the Sec. of State under Adams and his brother failed to deliver the commissions in time.
· Possible narrower holding: Th

reated by states.
o The Constitution and nation created, by way of the Supremacy Clause (Article VI), was superior to any state.
· Marshall recused himself because he had interest in the land.
· The head of the VA court would have been Jefferson’s choice for the USSC but Jefferson instead got Marshall; a bit of animosity.
· Related cases:
o Cohens v. Virginia (1821): VA argued that state criminal cases are under original jurisdiction of the Supreme Court because the state is a party and the Supreme Court will therefore lack appellate jurisdiction. The Supreme Court disagreed saying it had appellate jurisdiction over all cases arising under federal law regardless of parties. However, Supreme Court found in favor of VA so that the state could not disobey, leaving the Supreme Court without any enforcement powers. Established power of Supreme Court to review criminal cases.
o Cooper v. Aaron (1958): Governor of Arkansas refused to follow Brown. Unanimous court said state legislatures, executives and judges had to follow the Supreme Court. SCOTUS is supreme expositor of Constitutional Law and all state officials have to take an oath to uphold the Constitution

Limits on Judicial Review:
The political question doctrine: These are prudential doctrines developed by the court for “self-denial.” The have laid out reasons why they shouldn’t decide certain cases.
(1) Not ripe for consideration
(2) Moot
(3) Not a controversy
(4) Political Questions (See Brennan’s standards in Baker).
a. Non-justiciable because the dispute is assigned to another branch by the Constitution (rare).
b. Issues that would undermine the credibility of the Court.

Lockwood’s hypo on the political question: Suppose the House and Senate pass a highway budget. The House and Senate have differing versions, which leads to a conference committee. A powerful House member gets them to include a pork project that wasn’t in either bill. Does this abnormal procedure violate the Constitution because the House and Senate did not each consider this legislation?
§ Likely no one has standing to bring such a claim.
§ The Court has also historically been blindsided by missing issues.
§ Washington sent the Court legislation asking advice on its constitutionality. The Court declined to offer advice, holding that it did not have jurisdiction under Article to take on such an advisory role.
a. Similarly, in Baker v. Carr we see an example of the Court abdicating itself under the “Prudential doctrine.

Baker v. Carr (1962) – The Apportionment Thicket
· From 1871-1901 TN reapportioned members of the General Assembly based on decennial censuses. In 1901, the General Assembly enacted the Apportionment Act that apportioned members of the General Assembly to counties based on federal census. Because of population shifts, urban residents were underrepresented compared to rural residents. The state legislature had considered reapportionment previously and did nothing. Thus, the plaintiffs argue that they were denied equal protection of the laws because of the “debasement of their votes” (their votes were effectively worthless). TN argues that this is a political matter (legislature votes on the issue, so there is political check).
· Plaintiff sought an injunction but the District Court denied relief.