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Constitutional Law I
University of Illinois School of Law
Lash, Kurt T.

Constitutional Law Lash Spring 2015



History of Constitution

· It is our Supreme Law, everything (fed, state law, city law) has to be consistent with and limited by the const

· Nothing & no govt. official is higher than the const.

· 1789 the original const, 1791 this is amend with first 10 Amend (Bill of Rights), 1860’s Reconstruction Amend (after civil war)

· 27 Amend by today’s date

· We have had 1 Const., longest functioning const in the world

· Colonies operating in 1660’s, they operate under colonial charters, all have basic organizational structure of tripartide

· Overtime political issues brew- no representation, assembly action must be approved by governor and court could still strike it down

· King George thinks they are radicals and outlaws the assemblies- BUT still convene even with no official power- so get power in the eyes of the colonists => CONVENTIONS OF THE PEOPLE

· Art 5 (pg 9) talks about how to change the Const- can be started by states or houses of Congres, to even get a proposal 2/3rd of House or States. Then sent out to conventions in the state, then to become part must have 3/4th. Convening of the People themselves (harken to outlaw assemblies)

· Outlaw assemblies lead Revolution => win => Declaration that we are “Free and Indep” states, then charters replaced with Independent State Consit- agree to work with each other => Articles of Confed (13 years)

· 1789 Articles are dumped- replace with Constit.- we need a strong front, need money for war, states have internal problems- assemblies have way more power than governors and courts, trade wars between states,

· Federalists (want ratification) vs. Anti-Federalists (no ratification)- fears of tyranny, lack of rep, fear we will have situation as before BUT tyranny is already occurring in states

· Constit is better because?- system of checks in balance, balance of powers between 3 branches- Executive, Judicial and Legislative, Const is ratified in 1787

· JUDICIAL REVIEW- courts can invalidate the policies that were passed by leg that they say are non-democratic, against the const.

· Different from Europe because European systems are set up underthe belief that Pariliment = the people. In U.S. we do not believe that govt= the people.

o The people are represented by the CONSTITUTION

o The courts enforce the will of the people themselves against govt action


Periods of Constitutional Development

· 1. Founding Period 1787 & 1791

· 2. Civil War Reconstruction 1868 – 13th/14th/15th Amend

· 3. New Deal- 1937, no new text but new interp of it.

o Prior to this the court had pretty little role

o Supreme has taken on an equal role in controlling what Constitutions interpretation is

Marbury v. Madison- John Marshall

· 1801 James Madison is withholding (at Jefferson’s command) confirmation of Marbury’s commission (he had been apt by the Prev Pres.)

· He is starting in Supreme Court Requesting Mandamus

· Jefferson is anti Federalist, he lost to Adams (Federalist) but then Adams pissed everyone off with the Alien and Sedation Acts- SO Jeff gets elected on next cycle, before he leaves Adams tries to pack government full of Federalists- Midnight Judge Episode. One of these positions is for Marbury

· Jefferson- comes in, repeals the new Judge act and stops delivery of new positions, this case comes before the court- concern about how Marshall (a Federalist) will rule

o 1. Marbury has a right to the commission- it was “God given” and then correctly affirmed by President, when signed and affixed it becomes theirs- now their property (delivery doesn’t matter)

o Difference in positions- low level vs positions that are higher (must be discretion of new President if higher- like choosing cabinet members) this is lower position

o Where there is a right, there is a rememdy => so Marbury wins! Except he doesn’t get his writ of mandamus here

· Test:

o 1. Right? –yes

o 2. Enforceable by courts of law?- yes

o 3. By this court?- no!

· They have come to wrong Court- Article 3 of Const.


Marbury v. Madison- explanation of Ruling

· Traditionally recognized as establishing the power of JUDICIAL REVIEW- power to invalidate actions of branches of govt who have acted inconsistently with the constitution, this is a unique power- they can make it LEGAGLLY INOPERATIVE

o Most other countries just get advice from their const courts

· The Supreme Court has appellate jurisdiction for this case NOT original jurisdiction

· The Supreme does have original jurisdiction for some cases BUT limited- for everything else the case must start elsewhere and work its way through

o Marbury must originate his case in the right place

· Article 3- Lays out Judical Branch

o Sect 1- Establishes Supreme Court

o Sect 2- Lists of what Supreme Court can hear- starting point for Fed govt, you don’t have power to anything until people VIA CONSTITUTION GRANT them authority

o Federal Questions OR Diversity Cases- subject matter Jurisdiction of Fed Crts.


imarily proposed due to concerns over articles. Create const lays out powers of govt. suff

· Reflects role of popular sovereignty, no branch of govt can claim to be sov. Or have ultimate power. This separates it from most others

· Const created by super majoriarian process and trumps ordinary law

· Judicial branch-> branch responsible for enforcing written const. Courts here have special power of Judicial Review, essentially they are able to invalidate govts actions when they are in conflict with the Const.

· People are constantly engaged in a debate over what is right. This will is enshired in the Const. This is why they compare every action

· Art 5- gives us mechanisms to Amend.

United States v. Klein

· After civil war, lots of property was seized. BUT when you act in treason you have no right to property BUT Pres. Johnson hands out pres. Pardons like candy

· Klein takes his case to court of claims (wins) he was a rebel but has a Pres. Pardon, Republicans are pissed! They order it reversed

· Congress can’t order courts to vaccinate the judgment, they have no authority to reverse the decisions, this would be denying pres. Pardon power

· Congress can control who GETS to the courts BUT they aren’t allowed to change after judgment has been rendered

Article III

· Sect 1-> Congress may establish lower federal courts and can limit the jurisdiction of lower fed courts. Congress may make exceptions from the Supreme Courts Appellate jurisdiction

o This gives Congress enormous authority to decide where these cases go

o You must find a FED STAT permitting the Fed court to hear this case

o Because of ability to create zero inferior Fed courts, so precedent says YES courts can be limited by Congress

o Congress has full authority to decide that lower courts cant hear something- take away authority to hear cases with a diversity claim of under $75,000- this additional authority is granted by statutes which they can repeal

o Congress would have authority to remove an ENTIRE issue from review by Federal Courts.