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Constitutional Law I
University of Dayton School of Law
Greene, Dennis

Constitutional Law
Professor Green
Chapter 1: The Federal Judicial Power:
The Authority for Judicial Review
Marbury v. Madison:
·         Marbury was appointed as justice but was not given his commission (since the delivery was not in time); he brought suit asking the court to order a writ of mandamus to deliver his commission
o   Writ of Mandamusà a petition to the court asking it to order a government official to perform a duty.
·         Jefferson’s administration refused to honor the undelivered commissions (for political reasons- Jefferson was a republican and Adams and his appointees were federalists, Jefferson thus told his Secretary of State James Madison to withhold the undelivered commission)
·         At the time, the federal Judiciary Act provided that the SC had original jurisdiction to issue writs of mandamus against federal officials.
·         This also shows that even the president is not above the law, thus President Jefferson needed to abide by the law and follow through with the commission.
·         SC held: it had the power to interpret laws and determine whether they conflict with the Constitution
o   The Federal Judiciary Act did indeed conflict with the Constitution
o   The court did not have jurisdiction to issue the requested writ
·         Establishes authority for judicial review of executive actions
·         Establishes the authority for judicial review of legislative acts
·         Establishes that Article III authorizes the maximum jurisdiction of the fed courts.
o   That Congress cannot expand the original jurisdiction of the Supreme Court
o   That Congress cannot authorize federal courts to hear cases beyond what is specified in Article III.
Basically this case came down to, 1) no, Mr. President you are not above the law and you cannot withhold the commission, 2) when there is a conflict between the law and the constitution the constitution wins.
Issues: Constitution via Article III vs. the Judiciary Act.
            John Marshall creates power of Supreme Court in Judicial Review. 
1.      Does Marbury have right to the commission
a.       Yes, Once commission is signed and sealed, appointment is made
2.      Does Marbury have right to a remedy
a.       Madison not acting for President, but for specific duty assigned by law.
b.      Not even the President is above the law. 
3.      If he is entitled to the remedy, is it a mandamus from the SC.
a.       Constitution trumps an Act created for judicial power. 
The Authority for judicial review of state court decisions was established in two decisions
1.      Martin v. Hunter’s Lessee
·         Martin claimed title to the land based in inheritance from Fairfax (British citizen who owned land). US and England entered into treaties protecting the rights of British citizens who owned land in US. 
·         Hunter claimed VA had taken the land before the treaties came into effect, hence Martin did not have a valid claim.
·         US S.Ct. reversed the VA decision or Hunter that VA had taken possession of the land
·         Heldà federal treaty was controlling Fairfax’s ownership and validity of inheritance pursuant to his will.
·         The structure of the Constitution presumes that the S.Ct. may review state court decisions.
o   The Constitution gives the S.Ct. power to review the constitutionality of decisions by a state’s highest court.
o   Says that the S.CT. has the right to review civil matters from state court
2.      Cohens v. VAà 2 brothers convicted in VA selling DC lottery tickets in violation of VA laws.
·         Main issue was jurisdiction and whether the S.Ct. could review a state law
o   S.Ct. has the authority to review state court jurisdiction
§ When Δ claim their constitutional right has been violated
·         S.Ct. has jurisdiction over all cases whether or not the state is a party
·         Says that the S.CT. has the right to review criminal matters from state court, but can also kick them back to the state court level.
Limits on the Federal Judicial Power
1)         Interpretive limits: raise the question of how the Constitution should be interpreted
2)         Congressional limits: ability of Congress to restrict federal court jurisdictions
3)         Justiciability limits: series of judicially created doctrines that limit the types of matters that fed courts can decide
1àInterpretive Limits
Originalismà the court is justified in protecting constitutional rights only if they are clearly stated in the text or intended by the framers.
It is desirable way to limit unelected judges in a democratic society
Confine constitutional issues that are stated or clearly implicit in the Constitution
Non-originalistà it is important that the Constitution evolve by interpretation and not only by amendment
Go beyond the norms that cannot be discovered within the 4 corners of the document
Constitution doesn’t remain static
How Should the Constitution Be Interpreted? 2nd Amendment as an example
Second Amendment (RIGHT TO BEAR ARMS)à A well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall be infringed.
US v Miller (1939)à moving a sawed off shotgun in interstate commerce in violation of the National Firearms Act of 1934. SC rejected Miller’s 2nd Amendment argument.
Purpose of the 2nd was to protect state militia andà assuring the continuation and rendering possible the effectiveness of the militia.
US v Emerson (2002)à 2nd amendment protects the right of individuals to privately keep and bear their own firearms that are suitable as individual personal weapons.
Silveria v Lockyer (2003)à in 1999 Cali enacted amendments to its gun control laws that strengthened the state’s restrictions on the possession, use, and transfer of semi-automatic weapons.
Suit brought asserting that the law does not confer an individual right to own or possess arms
Affirmed the dismissal of all claims brought pursuant to that constitutional provision
Three reasoning’s on the constitutional provision
1) Traditional individual rightsà 2nd guarantees to individual private citizens a fundamental right to possess and use the firearms for any purpose at all, subject only to limited govt regulations
2) Limited individual rightsà individuals maintain constitutional right to possess firearms insofar as such possession bears a reasonable relationship to militia
3) Collective rightsà right to bear arms guarantees the right of the people to maintain effective state militias but does not provide any type of individual right to own or possess weapons
Provides the best interpretation of the 2nd
Militia refers to state military forceà look at the ordinary meaning of the word, but b/c contemporaneously enacted provisions of the Constitution that contain the word militia consistently use the term to refer to state military entity, not to the people of the state as a whole.
Conclusionà 2nd amendment has no limitation on Cali’s ability to enact legislation regulating or prohibiting the possession or use of firearms, including dangerous weapons.
Class Notes: 1/6/09
Article I:

se of Medicaid financing differences
Congress enacted law in the 1997 Balanced Budget Act that allowed for certain taxes
President used a line item veto to cancel the directed spending for NY as well as a limited tax benefit. 
City of NY filed 2 actions against the President challenging the cancelations (line item vetos)
Line Item Veto Act allows the President the power to cancel 3 things that have been signed into law:
1.      Any dollar amount of discretionary budget authority
2.      Any item of new direct spending
3.      Any limited tax benefit
If the disapproval bill pertaining to a special message is enacted into law, the cancellations set forth in the message become
            The line-item veto granted in the Line Item Veto Act of 1996 violated the Constitution because it impermissibly gave the President the power to unilaterally amend or repeal parts of statutes that had been duly passed by Congress.(Line item veto power is unconstitutionall). 
This is because it violates the Presentment Clause:
After a bill has passed in both houses, it must be presented to the pres- if he approves signs it, if not he shall return it w/ his objections and proceed to reconsider it
Return of the bill veto is subject to being overridden by 2/3 vote in each house.
ALA Schechter Poultry Corp vs. US (1935)à
ALA indicted for alleged conspiracy violations of the Code of Fair Competition (CFC) for the Live Poultry Industry in and around NY City.
Because ALA is primarily doing business intra state, there is an issue of whether the Commerce Clause should even come into question.
The CFC prescribed labor standards for poultry businesses and many aspects of how such businesses could operate
Code was created by a group deligated the authority by federal law, the National Industrial Recovery Act.
National Industrial Recovery Act of 1933 authorized President to enact codes of conduct for industries, and he did so for the poultry industry in NY.
1.      the pres is required to find that the trade or industrial associations which propose a code impose no inequitable restrictions on admission to membership and are truly representative.
2.      the pres is required to find that the code is not designed to promote monopolies or to eliminate or oppress small enterprise and will not operate is discriminate against them.
The legislative undertaking, section 3 sets up no standards, aside from the statement of the general aims of rehabilitation, correction, and expansion described on section 1.
National Industrial Recovery Act section 3à conflict between the court and what the Congress and President were doing. He was running on the concept of the New Deal.
Heldà unconstitutional delegation of legislative power b/c of the scope of the powers and of the nature of the few restrictions that are imposed.