Constitutional Law I Outline

CONSTITUTIONAL LAW
STINNEFORD
SPRING 2012
 
I.            INTRO
DEF: the fundamental and organic law of a nation or state that ests the institutions and apparatus  of govt, defines scope of govtal sovereign powers, and guarantees individual civil rights and civil liberties.
                 I.            Constitutes (combines to form) political union
               II.            Who/how of interpretation
                                   i.            Text
                                  ii.            Structure & internal logic– how provisions relate to ea other
                                iii.            Purpose & original intention//public meaning
                                iv.            Precedent
                                 v.            Social policy
                                vi.            Departmentalism
1.        President would refuse to sign laws he thinks are unconstitutional
a.       Negative power of President is explicit in Con
2.       Congress would refuse to pass laws ((can't be judge on own case!))
3.       Courts would refuse to enforce laws
 
 
Originalism
DEF: The theory that the US Con should be interpreted according to the intent of those who drafted and adopted it
Non-originalism
Judges deciding constitutional issues should confine themselves to enforcing norms that are stated or clearly implicit in written Con
Enforce norms that cannot be discovered within 4 corners of doc
If Con is silent, it is for legislature, unconstrained by courts, to decide law
It is permissible for Court to interpret Con to protect rights that are NOT expressly stated or clearly intended
Con should evolve solely by amendment
Con's meaning can evolve by amendment && by interpretation
Strict– literal
Moderate– general purpose
 
Very nature of interpreting doc requires that its meaning be limited to its specific text && its framers' intentions
It is desirable to have Con evolve by interpretation
This approach desirable to contain the power of unelected judges in a democratic society
Meet needs of changing society
Court is justified in invalidating govt decisions ONLY when it is following values clearly stated in text or intended by framers
Process of determining framers' intent invariably is a process of interpretation affected by contemporary values
Judicial review is consistent with majority rule so long as Congress retains power to restrict J of SC
Many and conflicting reasons for adopting a particular constitutional provision
Judicial review is democratic b/c people consented to adoption of Con
Approach intended by framers– framers probably did NOT intend that their intent would govern later interpretations of Con
Nonoriginalism improperly empowers unelected judges to displace decisions of popularly elected officials && that historically, it has produced undesirable decisions
 
 
             III.            Themes:
                                   i.            Formalism– the idea that judges should decide cases in accord with conventional legal authority && NOT according to judge's own views of what result would be just, equal, efficient
                                  ii.            Popular sovereignty– if people don't like govt, they can overthrow it
                                iii.            Written c0nstitutionalism– distinctly American innovation
1.        Entrenchment– cannot be altered or suspended even by Act of Congress or President
a.       If altered once, tempted to do it again
2.       Accessible
3.       Protect from passions against temporary object of public hatred
4.      Framework for intergenerational lawmaking (stability/continuity)
                                iv.            Federalism- a political concept in which a group of members are bound together by covenant with a governing representative head; evolving relationship btw US state govts && federal govt of US
                                 v.            Separation of powers
                                vi.            Enumerated powers
                              vii.            Individual rights
                             viii.            Imperfect congruence of Con w/ “justice”  ((Slavery))
 
             IV.            Historical Background
                                   i.            Glorious Revolution of 1688
                                  ii.            English Bill of Rights of 1689
                                iii.            Colonial charters
                                iv.            DoI
                                 v.            AoC
 
 
AOC
Constitution
Levying taxes
Congress could request states to pay taxes
Congress has RIGHT to levy taxes on individuals
Federal courts
NO system of federal courts
Court system created to deal with issues btw citizens, states
Regulation of trade
NO provision to regulate interstate trade
Congress has RIGHT to regulate trade btw states
Executive
NO executive power. President merely presided over Congress
Executive branch headed by President who chooses Cabinet && has checks on power of judiciary && legislature
Amending doc
13/13 needed to amend Articles
2/3 of BOTH houses of Congress + 3/4 of state legislatures or national convention ((popular sovereignty))
Rep of States
Ea state received 1 vote regardless of size
Upper house (Senate) w/ 2 votes; lower house (House of Reps) based on poop
Raising army
Congress could NOT draft troops, dependent on states to contribute forces
Congress CAN raise army to deal w/ military situations
Interstate commerce
NO control of trade btw states
Interstate commerce controlled by Congress
Disputes btw states
Complicated system of arbitration
Federal court system to handle disputse
Sovereignty
Resides in states
Con is supreme law of land
Passing laws
9/13 needed to approve legislation
50% + 1 of both houses + signature of President
                               VI.          State constitutions
                              vii.          Philadelphia Convention of 1787
                             viii.          The Federalist Papers