Constitutional Law I Outline

 
Constitutional Law Coenen Spring 2014
 
I.        Introduction: Articles of Confederation (1781) v. Constitution (1787)
A.      Braches of Gov’t
1.       Articles: 1 branch
i.         Congress, which is unicameral
ii.        No federal courts, but congress creates admiralty court by appointing officers from states to help congress administer decisions
2.       Constitution: 3 branches
i.         Legislative (Art. I)
a.       Bicameral (house and senate)
ii.        Executive (Art. II)
iii.      Judicial (Art. III)
a.       Constitution creates supreme court, but allows for congress to make lower ones. Art. I § 1.
iv.      Separation of powers means cooperative action among different bodies of gov’t.
B.      Congressional Make-up
1.       Articles: 2 to 7 representatives per state
i.         Term is 1 year, and not able to serve more than 3 out of any 6 years
ii.        State legislature decides representatives
2.       Constitution: 2 senators/state, house decided by people
i.         No limit on # of terms: 2 year terms for house, 6 year terms for senate
ii.        Originally, senators appointed by state legislatures and house appointed by people; now both appointed by people (Amendment XVII)
C.      Passing Legislation
1.       Articles
i.         Each state gets one vote, so representatives aren’t given a vote individually, but as a group in the state.
ii.        9/13 states must agree. This is efficient, but difficult to initially pass legislation.
2.       Constitution
i.         Each representative gets his own vote.
ii.        To pass legislation, there must be house and senate majority
a.       After this, president can veto
b.       If vetoed, bill must pass 2/3 in both houses
1.       Less efficient, and more difficult to pass
D.      Amendments
1.       Articles: All 13 states must agree to amend
2.       Constitution: 2/3 of both houses and ¾ of states must agree (Art. V) or by national convention assembled by state legislatures of 2/3 of states and ¾ of states must agree to amendment (never happens)
i.         State can’t be deprived of equal suffrage in senate w/ out its’ consent
E.       Powers of gov’t
1.       All powers of gov’t created under Articles carried over to constitution, and constitution adds powers.
2.       Articles: Say in Art. II that federal gov’t only has expressly delegated powers (very limiting language) and that states have all other powers.
3.       Constitution: Amendment X says “The powers not delegated to the US by the Constitution, nor prohibited by it to the states, are reserved to the state respectively, or to the people.”—Doesn’t say “expressly” in language which insinuates that there are implied powers of fed. gov't.
F.       Big difference was that Articles were a “coalition between the states”, and Constitution developed a centralized strong federal gov’t.
G.      Problems with Articles Resolved by Constitution
1.       Interstate commerce
i.         Under Articles, states had power over trade, which caused many states to block each others’
ii.        Under Constitution, congress has control over interstate trade, so no domestic problems w/ trade
2.       Domestic affairs
i.         Constitution protects states from domestic violence
ii.        Art. I, § 8 allows congress to collect taxes to pay debts.
3.       Foreign affairs strengthened through constitution b/c unified body of states w/ similar policy
 
II.      The Supreme Court’s Authority and Role (What exactly is it?)
A.      The Power of Judicial Review (Supreme court and Congress)
1.       Art. III, § 2 cl. 1: Federal judicial power extends to all cases arising under Constitution, the laws of the U.S., and treaties made, or which shall be made, under their authority; and
2.       Art. III § 2, cl. 2: In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party, the supreme court shall have original jurisdiction. In all other cases in which judicial power extends, supreme court has appellate jurisdiction w/ such exceptions, and under such regulations as congress shall make.
i.         Marshall interpreted the enumerated circumstances of original jurisdiction as the sole cases in which the supreme court has original jurisdiction, and this can’t be expanded by congress (Marbury v. Madison)
3.       Art. VI Supremacy Clause: This constitution, and the laws of the US which shall be made in pursuance thereof; and all treaties made, or which shall be made under the authority of the US, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.
4.       Judicial Review Rule:
i.         The supreme court has the ability to review legislation by congress to determine whether it is constitutional, and if not Constitutional by the court’s interpretation, they may strike it down.
ii.        Reasoning
a.       Art. VI says constitution and laws made in pursuance are supreme law of land, and binding on courts notwithstanding state laws.
b.       Art. III says judicial power extends to all cases or controversies under constitution, laws of U.S., and Treaties.
1.       Since courts have power to apply different laws against each other, anything that is in conflict with supreme law should be overruled, including congressional acts. (Marbury v. Madison)
5.       Policy on judicial review of congressional acts (Marbury)
i.         Constitution would be undermined if legislature could just work around it—not supreme law
ii.        Congress would have enormous power to usurp Constitution
iii.      We require judges to take oath to support and enforce constitution. If they can’t strike down statutes, they would be ignoring the oath.
iv.      Policy AGAINST judicial review
a.       Legislators swear to protect Constitution as well, so we should give deference to them in interpretation when making laws
b.       Legislators accountable to people, so people should be able to determine whether or not legislature is following constitution and filter out those who aren’t through election, not courts through interpretation—Constitution is for the people anyways
 
6.       Marbury (P) v. Madison (D)—BIG CASE
i.         Facts: Marbury appointed by president Adams near end of term to be judge; Adams got approval from senate, signed, and sealed commission, but never delivered. Jefferson elected and ignored it, so Marbury asked SC to issue writ of mandamus requiring SoS Madison to deliver the commission.
ii.        First, P had legal right to commission, because commission is effective once it is signed by executive and sealed. P had legal remedy for violation of right despite executive activity b/c not a political act.
a.       Political Question: Presumably, if you have a violation of legal right, you can get a remedy. However, exception where executive is performing duties within his constitutional discretion. This is termed as a political act, and these acts cannot be remedied in court against president.
1.       This extends to all executive-appointed officials who are acting on behalf of executive.
b.       This is not a political act of presidential discretion. Congress passed statute that says anything on public record must be delivered to citizen for payment. Here, it was on record, so non-delivery is remediable and can’t be usurped by executive.
iii.      Even though P had right that was remediable by court, court doesn’t issue the writ:
a.       Judiciary Act of 1789 grants Supreme Court power to issue writ of mandamus, but Marshall says provision of Act invalid under Constitution.
1.       Marshall reads judiciary act as saying that SC has original jurisdiction for writ of mandamus
2.       Interprets Art. III, § 2’s enumerated grant of situations where SC has original jurisdiction conclusive, and appellate extends to all others.
i.         D says enumerated power is baseline. Marshall: if we didn’t deem Constitution as conclusively stating original jurisdiction, it would not make sense from language.
3.       Act is attempt by congress to expand power of SC beyond what is enumerated in constitution, which is unconstitutional.
iv.      Marshall Creates and Justifies Judicial Review—Reasons
a.       Pointless to have written constitution if courts unable to enforce it.
b.       Text implies judicial review:
1.       Art. VI says constitution and laws made in pursuance are supreme law of land, and binding notwithstanding state laws.
2.       Art. III says judicial power extends to all cases or controversies under constitution, laws of U.S., and Treaties. Since courts have power to apply laws against each other, anything in conflict w/ supreme law should be overruled.
v.       Marshall did a masterful thing. He fooled everyone and critics by refusing to give the judiciary power in this narrow situation, but extended the court’s power greatly.
vi.      What Marshall could have done to avoid this decision
a.       Could have recused since he was part of events (secretary of state under Adams)
b.       Could have acknowledged Act didn’t say it was giving court original jurisdiction, and interpreted as appellate jurisdiction and dismissed for lack of appellate jurisdiction
c.        Could have read Art. III more broadly as allowing congress to expand jurisdiction.
 
B.      Supreme Court Authority to Review State Court Judgments
1.       Rule:
i.         Supreme Court has ability to review state court determinations from the highest state courts on issues of federal or constitutional law on appeal under their appellate jurisdiction power under Art. III § 2, cl. 2 (Martin v. Hunter’s Lessee)
2.       Criminal Cases
i.         Difficulties arise in cases such as criminal cases when state is named (Cohens v. Virginia).
a.       In these cases, under Art. III Supreme Court has original jurisdiction, so by reading Art. III, § 2 under Marbury v. Madison, it would appear that they wouldn’t have appellate jurisdiction. Marbury v. Madison says court only has enumerated original jurisdiction OR appellate jurisdiction
ii.        In Cohens, court held that it had appellate power over state criminal case involving federal law.
a.       Court has both original and appellate jurisdiction in some cases
3.       Policy
i.         If court were to limit its’ judicial power to avoid appellate review of state court judgments:
a.       Judgments in state courts may be affected by politicians, since judges are re-elected and salaried by legislature
b.       Possibility of inconsistent applications of constitution and federal laws both:
1.       Between state courts in different states; and
2.       W/ in states because of federal and state courts residing there
4.       Cases
i.         Martin v. Hunter’s Lessee
a.       Virginia state court refuses to honor Supreme Court’s mandate on federal question of land acquisition and title.
b.       Held:  Supreme Court can hear an appeal and issue a ruling contrary to a state supreme court based upon Art. VI supremacy clause (which binds state to constitution) and Art. III, § 2 (giving appellate power to Supreme Court).
1.       Here, supreme court was the only federal court existing, and Constitution stated only that they “may” establish lower courts, so correct reading was made in determining that supreme court had appellate power.
2.       Upheld § 25 of the Judiciary Act of 1789 which allowed SC to review final decisions of the highest state courts rejecting claims based on federal law—including federal constitutional law
ii.        Cohens v. Virginia
a.       Supreme Court appellate review extends to state criminal law cases, despite fact that Art. III, § 2 gives Supreme Court original jurisdiction over cases in which state is named party.
 
C.      Judicial Exclusivity in Constitutional Determinations (Judicial Supremacy)
1.       Rule:
i.         Supreme court has judicial supremacy—Supreme court decisions interpreting the Constitution are binding on all state courts, regardless of whether they themselves were involved in a case interpreting the Constitution. (Cooper v. Aaron)
a.       Art. VI states that Constitution is supreme law of the land, and is binding on all states notwithstanding their own statutes
b.       Marbury v. Madison establishes that Supreme Court is the highest interpreter of the Constitution, so supreme court decisions are supreme the law of t