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Constitutional Law I
University of Connecticut School of Law
Macgill, Hugh C.

Constitutional Law MacGill Spring 2011

I. Introduction

a. Articles of confederation = Const 1.0. Const 2.0 is the constitution as writing now, but without bill of rights, 3.0 is witht the bill of rights and 4.0 is the current with reconstruction amendments

b. Articles of confederation

i. Sovereignty in the states themselves- NO individual freedoms enumerated- NO mention of the judicial or executive branch

1. Did not mention the executive because they were rebelling against the monarchy and did not want to give power to an individual

ii. If congress wanted to raise money- had to get permission from states

iii. Amending the articles had to be unanimous

iv. The state formed militias made up the army- there was no US army at the time- State militias were encompassed in the National Guard now

c. Const 2.0

i. Article 1èLegislative power

ii. Article IIèExecutive power

iii. Article IIIèCourts (federal courts establishes the USSC)

1. CONGRESS has the power over the smaller courts-

2. Gongress also has power over the jurisdiction and regulation of federal courts

II. Federal Judicial Power (Article III)

a. Article IIIèSupreme court original jurisdiction over ambassadors, public ministers but in all other mattersèappellate Jd. Congress given power to create inferior courts. Federal courts have limited jurisdiction: standing, ripeness, mootness, and political question doctrine

b. Marbury v Madison

i. Marshall C.J. èEstablishes Judicial Review of the constitutionality of Executive and legislative acts (not expressly in Const)

ii. Case in context of the Judiciary act of 1801 (midnight Judges) Adams attempted to save Federalism from the republicans of Jefferson through nominating last minute circuit judges

iii. Issue is about commissions due. Marbury sued because he wanted commission of Circuit judge. Commission was signed and sealed- but not delivered before Jefferson innaug

1. Repeal of judiciary act of 1801= Can Congress do this

2. Article III allows congress to set terms of court but is there a separation of powers issue

iv. Marbury’s arg was that the judiciary act of 1789 permitted the court to issue writ of mandamus to enforce the commission through original Jd.

v. Issues:

1. Does Marbury have a right to the commission= Yes marshall says that there is a right to the commission because the appointment was made when sealed- not delivered

2. What is the remedy: the mandamus is the appropriate remedy. This is a legal question and not a political question. There was an injury and there are laws (the Us is a country of laws- This is not a question of political discretion.

3. BUT-The USSC doesn’t have jurisdiction!

a. Marshall sets up Art III against the judiciary act of 1789- that act sought to confer upon the court an element of original jurisdiction that NOT in Art III

i. THEREFORE Judiciary act of 1789 is UNCONSTITUTIONAL- NO remedy by USSC

vi. By making this ruling, Marshall sets up judicial review- the power to review, otherwise properly enacted statutes, and declare them void if it is in contrast with another statute (the constitution)

1. Give the court reservation of right to declare what congress does as null and void

vii. Marshall did not have to reach the constitutional question- (constitutional avoidance) (note 2 pp10)

1. Recusal- he could have/should have recused himself

2. Common law- When was the commission vested?

3. Political question- could have said it was a discretionary act that the courts could not interfere with

4. Statutory construction

5. Constitutional interpretation

viii. He violated the manners of the court- Polite courts avoid constitutional questions unless it has to. If you have to rule that a statute is unconst then do so in the narrowest terms

1. Constitutional questions are big deals- need to have a high level of certainty- if the court rules on the constitutionality of something- there’s nothing congress can do but make an amendment.

2. Where does he get judicial review from if not in the text: natural law-

a. Federalist papers number 78 (pp 13) Marshall in Marbury comes close to this

c. Interpretation of Marbury

i. Narrowest in

te jealousies and biased interests. D is entitled with the power of removal. Ensures D’s equality in asserting their constitutional rights

iv. Has appellate jd over the state appellate court in the original action because the case concerned a national treaty

e. Political Constraints on the court

i. Is the court undemocratic? Is judicial review justified by const? no but need it as a practical matter because if the Const limits that branches of Gov’t (powers) you need to have a place to determine where those limits are

ii. The court does not change the constitution but alters the landscape

1. If you really wanted to change the constitution would need amendment of Constitutional convention (which could be very dengeraous because you could change the scope of the whole thing like in Con Con 1)

iii. Nomination process

1. Purely political process- discretion by presidents- no right for court to intervene

2. The confirmation process goes to congress but is largely for show

iv. Recusal: there is a federal statute on point but not apply to USSC- at discretion of judges

1. Scalia doesn’t recuse self, but Kagan did

2. If the perception of impropriety, and question about judge’s ability to be impartial

3. Most judges think that no matter what, they can act impartially

v. Impeachment-

1. Political act by political body acting on another political body

2. Only one out of 115 judges was impeached, but acquitted (bully Chase)

vi. Congress changing the terms of USSC

1. Court stripping, Court packing

vii. Jurisdiction stripping

1. Can’t limit certain individuals bringing suit, BUT you can limit the subject matter that is heard