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Constitutional Law I
University of Connecticut School of Law
Becker, Loftus E.

INTRODUCTION: Rights, Legal Rights, and Constitutional Rights
Wechsler, “Toward Neutral Principles of Constitutional Law”
Hand thesis: (W is responding):
– Fed. Cts have pwr of JR, but b/c its not provided for in const. text, less impt. Cases should refuse to exercise it (leave ques. To other branches to resolve)
Hand response:
– Cts have power (duty) to decide all const cases in which jurisdiction and proc reqs are met
– Unless the decision of a constitutional question is commanded by text or history, or precedent courts must justify it w/ ‘neutral principles’ (that go beyond the immediate result)
o Court should look at like cases to create a coherent body of law (principles that can be applied to more than just instant case)
– Legislative principles are employed in politics (controlling sentiment at a particular time- appraise gains/losses in projected measures); but courts need more so as not to become just a third legislative chamber, need neutral principles (neutral, logical, well-thought-out, fixed on historical meaning or textual meaning on Constitution)
What W thinks should have been done in Brown:
– Position not clear; may have thought Brown should have been differently decided if the court couldn’t come up w/ better reasons (if no sufficient NP can be assigned for overturning value choice of other branches, the choice survives
o But W clearly approves of result in Brown 9as matter of social policy)
Cases after Brown:
– fail to articulate any basis for extending relatively ltd. Principle in Brown to additional cases (Brown said ‘no seg in public schools’, that applied to many other things…no basis for this)
Amsterdam, “Perspectives on the Fourth Amendment
– Response to Wechsler = a proper objective, but impractical (for 3 reasons)
o courts are a committee, not an individual decision
o courts can’t always state openly all considerations for decision
o to do justice is more important than to find neutral principle
o bound to const. ques at hand
§ problems that Wechsler can’t overcome: cases already decided w/out NP; 2 NP’s that conflict; what does it mean for cases on losing side
Calder v. Bull (1798)
– USSC HELD that the legislatures actions did not violate the ex post facto law (Art.1,sec.10 – Const. no ex post facto law may be passed [retroactively changes legal consequence of acts committed prior to law]) [but SC has authority to review state legislature decision] – Ex post facto provision only applies to criminal cases
Chase/Iredell debate: (Role of SC in constitutional plan)
– Natural law/limits of const: what court should do if presented w/ abominable statute that did not violate constitutional provision
Chase: natural law
– Court NOT bound to follow
– Against reason/justice for people to entrust Leg. w/ power to make abominable law
– Fed cts authorized, even required, to protect indiv. Rts. That might not be involved in const or US law
o Constitution is a living doc.
– Iredell:
o Court IS bound to follow
o Sep. of powers
o Jud. Branch doesn’t have power to declare leg. Act void that is w/in scope of its constitutional power
§ Only declared void if it clearly goes outside delg. Auth
– no fixed standard of natural justice
– people vest discretion in leg./but textual jurist
Debate related to debate over JR(judicial review) of acts of congress
– existence of const. makes argument for JR stronger, but arg. for JR of unenum. Rights weaker

CON LAW IN DEVELOPMENT: The Treatment of Children born outside of marriage

– on separate outline


Federal Judicial Power
– Art. III defines powers of the court
Authority for Judicial Review:
Marbury v. Madison: (1803) (Marshall):
– facts: Marbury sued Sec of State (Madison) to force him to deliver Marbury’s commission
– HELD: creates power of judicial review: That portion of sect. 13 of First Judiciary Act which gave SC power to issue writs of mandamus was unconstitutional insofar as it purported to give the Ct. orig. jurisdiction of cases not w/in the grant of orig. jurisdiction in Art. III
– Rule: Fed judges have power to refuse to apply fed statute (act of congress ) on ground

iolation of that oath
o Judiciary supreme in exposition of law of Constitution
Perspectives of Presidents:
Jefferson: (1804, Sedition Act): SC doesn’t have auth. To decl. acts of congress unconstitutional; each branch has own sphere of action; JR would make jud as despotic branch
Madison: (VA Resoltutions): Accepts notion of judicial supremacy; Court is final arbiter, decision of SC binding on all officials; people still ultimate givers of power, still retain right of review
Hamilton: (veto to bank bill): All branches must each have own opinion of constitution; opinion of judges no more authority than other branches, must not be able to control capacities of other branches (Agrees w/ Madison)
Lincoln: (1st inaugural Address): Ct decisions binding on all parties in specific suit; just b/c SC said something once, doesn’t mean its auth (Both Jack and Lincl believe SC will settle something)
Curtis: (Johnson’s impeachment): Judiciary is superior entity; duty of pres to challenge constitutionality of some statutes; at least getting before SC
Nixon: (tapes): Pres complied w/ court’s ruling; considered less than full compliance if ct had been unanimous; opinion only as strong as how many members agree w/ it

Approaching Judicial Review Questions
T- he debate: Chase/Iredell (natural justice)
U- surpation of Judicial Power (Gibson’s dissent, Jefferson) [deference to legislature; balance of powers)
P- rinciples: Neutral, Weschler, Amsterdam
A- aron: Binding authority (states bound by Constitution; supreme law)
C-ourts: what is the role in Constitutional scheme? (Presidents) [Decide cases; interpret Constitution: “to say what the law is” – Marshall in Marbury]