Constitutional Law I Outline

Constitutional Law Outline – Professor Hughes (Spring 2018)

3 questions:

1. Who or what is acting? (State or government action?)

-If private party, constitution does not apply

2. Does the actor have the power to act?

-If no power, what they’ve done is unconstitutional (if state, we assume they have the power to act)

3. Does it violate a prohibition/limit/negative right?

I. THE CONSTITUTION

Article 1 – Legislative

Enumerates the powers of congress
Congress cannot make a law without relying on a power in the constitution

-Section 7: veto/presentment clause

-Section 8: congressional powers

-Necessary and proper clause

Article 2 – Executive

EPA = part of executive branch
Any employee of an executive agency is part of the executive branch

Article 3 – Judiciary

Constitution establishes SCOTUS (doesn’t say how many justices)
General vs. original jurisdiction (SCOTUS original jurisdiction = Article 2 Section 2)

Bill of Rights

First 10 amendments
Only applies to states (so Hughes can fire Evan for expressing political beliefs)

-10th: powers not in the constitution are given to the states or the people

-13th: outlaws slavery

-14th: commands states to obey the bill of rights

-15th: drafted after 13 and 14 don’t work

Constitutional Interpretation

Methods of Interpreting

Original Intent: Asks what the framers wanted to do.
Textualism: Places emphasis on what the Constitution says.
Original meaning: Considers what a clause meant (or how it was understood) to those who enacted it.
Stare decisis: Looks to what courts have written about the clause.
Polling jurisdictions: Examines practices in the United States and even abroad.
Pragmatism: Considers the effect of various interpretations, suggesting that courts should adopt the one that avoids bad consequences.
Structural: Derive meaning by looking at how branches are separated and how they check and balance each other.
Fundamental values: Relates to widely held views, e.g., justice and equality.

II. THE JUDICIARY

A. Judicial Review of Federal Legislative and Executive Actions

Cases:

Marbury v. Madison

FACTS: Refusing to appoint a federal judge

Part I: discusses if the commission appoint is reviewable

Political questions he’s talking about decisions impacting people as a whole and if it’s political for president then it is political for his actors called Discretionary Actions

-Only remedy for these actions is by voting

Yet, if Congress tells somebody in Executive branch to do something then it is Non-Discretionary Actions

-But here the court can review

Equally important is that SCOTUS gets decide which actions are discretionary and non-discretionary
SCOTUS may find difficulty in legislation that tells the executive to take an act in their discretion or judgment

Part II: discusses if SCOTUS can issue this writ

Statute says yes
Art. 3 Sec. 2 Cl. 2 original jurisdiction is an exclusive list to Marshall (Article 3 is the ceiling for judicial review)

Part III: the conflict between the statute and the constitution

And if Constitution is in conflict with statute, the Constitution win

-This established Judicial Review of Legislative Acts

Criticisms of the Case

Marshall misconstrued statute b/c statute seems to show Congress intended mandamus to be an appellate jurisdiction in SCOTUS & Marshall’s view limits the power of SCOTUS
Marshall misconstrued Art. 3 Sec. 2 Cl. 2 b/c list doesn’t necessarily exclude all other forms of original jurisdiction
Whole case is technically dicta

Reasons for and Against Judicial Review

Reasons for:

Protect rights of minorities because can’t use normal democratic process
Join rights with another branch to keep third in check.
Practically, it appears to be a good idea.
Prevents subversion of political processes.

Reasons against:

Not elected; anti-democratic.
Removes need for democratic branches to cope with tough issues.
Permits Platonic guardians to veto.
Reconciling judicial review with democracy

-Perhaps can identify types of cases that we want the Court to look at carefully

Maybe minority rights
Maybe protection of political process

There are avoidance principles and justiciability doctrines
Other cases, just watch for outrageous things.

Discretionary and Non-discretionary Actions

Discretionary: thou may do x/thou in your judgment/discretion may do this (example: make whatever you want for dinner) – not reviewable by the court!!

The only check on the discretionary actions of the president, are the political actions (polis/all the people as a whole votes the person out)

Non Discretionary: thou shall do x (example: thou shall serve chop suey for dinner)

Non discretionary acts of the executive are reviewable (some are imposed by the Constitution and some by congress)

Types of Jurisdiction:

1. Original

2. Appellate

3. Exclusive

4. Concurrent

B. Judicial Review of State Court Decisions on Federal Questions

Cases:

Martin v. Hunter’s Lessee

FACTS: Martin claimed ownership of land through a will from Lord Fairfax, by treaty signed by the US that English citizens that owned land could keep it. Hunter claimed VA took the land before treaty went into effect. VA argues SCOTUS has no authority to review decision (they are a separate sovereignty)

The Supreme Court has the power to review state court judgments on federal issues
Article 1, section 8, clause 9 and Article 3, section 1, allows the court to have their federal appellate jurisdiction to be taken away for congress
Because of this, the appellate jurisdiction would have to flow from the states at this time
Also Story notes that the VA court would be biased in a case like this
Ensures uniformity in laws in all courts (ensure the same interpretation)
The people ratified the Constitution, not the states.

Cohens v. Virginia

FACTS: Men charged with selling DC lottery tickets in VA

B/c the people ratified the Constitution, the State cannot get out of being bound by the Constitution
Supreme Court can review state court criminal convictions for constitutionality.
Justice Story uses the Supremacy Clause to get to that conclusion

C. Congressional Power Over Inferior (District and Circuit) Courts

The power to create or not create lower fed courts give congress the power to control their jurisdiction (example: 1331 and 1332) – authority to do so is based on Sheldon v. Sill

Cases:

Sheldon v. Sill

FACTS: One party contended that a section of the Judiciary Act was unconstitutional because the section limited the jurisdiction of the lower federal court.

Congress may control the jurisdiction of the lower federal courts, pursuant to Article I, section 8, paragraph 9.

D. Congressional Exceptions Power

Cases:

Ex Parte McCardle

FACTS: McCardle was arrested by federal officers and found guilty. Appealed to Supreme Court under 1867 Act allowing the court to hear cases of habeas corpus (right to challenge your detainment – “to produce the body”) claims from federal and state governments

Congress may “regulate’ and make “exceptions” to the appellate jurisdiction of the Supreme Court. Article III, section 2, paragraph 2.
Congress has used the “exceptions” power to prevent the Supreme Court from ruling on Constitutional Issues. (cut off SCOTUS jx using the exceptions clause)
Today it is an open question whether Congress can use its powers over the inferior courts and exceptions power to prevent the Supreme Court from ruling on Constitutional Issues.
One way to read result: Congress may eliminate certain avenues for Supreme Court review as long as it does not eliminate all avenues. [i.e., as long as there are two ways for the Court to hear habeas corpus petitions, it’s possible to knock one down.]

Ex Parte Yerger

FACTS: Less than a year after McCardle the court heard thi