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

Formation of the Constitution
1776 – American Revolution: America becomes an independent entity, breaking away from England
1787 – Constitution is developed
·         Problems which needed attention:
o   Debt from the revolution
o   Protection from foreign nations
o   Trade wars
o   Enforcement of Treaty of Paris
o   Trouble between the states and overseas
o   Trouble between the states themselves
Articles of Confederation
·         Used between independence and the formation of the Constitution (13 years)
·         Formed a federal government made up of representations
·         Formed a congress and through this determined to have:
o   No president
o   No court system
o   No power to tax, regulate commerce, or amend the articles
·         Flaws:
o   No centralized control
o   Weak
o   Led to increased concerns of being overwhelmed by France/Britain
Philadelphia Constitutional Convention
·         To amend the articles and provide for some coordination to rectify the turmoil
·         Rather than amend – the articles were erased and new constitution was proposed
o   New president
o   Ability to tax
o   Pluralization of congress with the House and Senate
o   Court system – to interpret and enforce the constitutional law
Constitutional Debate
·         Ratify the proposed constitution which divided two groups:
o   1. Federalists
§  Favored new power and central government
§  Proposed division of power between national and state governments
§  Theoretically difficult to pass policy at national level
o   2. Anti-federalists
§  feared tyranny (a government that would fail to represent the actions of the people) and slavery
·         Constitution avoided tyranny through three branches and separation of powers
o   Branched Split
§  Executive – veto power
§  Legislative – division between House and Senate
§  Judicial – judicial review (power to consider whether a law conforms to the requirements of the Constitution and invalidates such if it does not)
o   Vertical Split
§  State
§  Federal
1789 – Constitution is ratified and Presidency elections are held
        I.            The Judiciary
a.        Theory: MARBURY V. MADISON
                                                               i.      Judicial review: power and exercise of that power to review a law for conformity with a more fundamental law (the Constitution) and to invalidate that law if it is found to be in conflict
1.       Highly unique power to strike down law passed by the political majority
2.       Every court has judicial review. May sit in judgment of Congress and the President.
3.       Nowhere specifically mentioned in the Constitution but is an implied power under separation of powers’ checks and balances.
4.       Acts of the people occur under certain, great conditions. It is an exhausting, rare process that exhibits the thinking of the people. The acts of building a Constitution are rare and occur at a thickness much deeper than usual.
5.       Congress doesn’t represent the people – the Constitution represents the people. The Court is in the best position to read the document fairly and not be politically influenced by transient majorities. Court in interprets the last speaking of the people.
a.        The big bet of Con Law is that the Court really will invoke the will of the people.
6.       Congress is subject to ebb and flow of political pressure. This thin, emotionally driven, political approach is not the power of the people. The Constitution is.
b.       Powers (Art. III)
                                                               i.      Art. III § 1: Judicial power is vested in the Supreme Court.  Congress may create federal courts as necessary.  Supreme Court is guaranteed.
                                                              ii.      Art. III § 2:
1.       Clause 1: Federal JDX applies to:
a.        All cases udner the Constitution, treaties, laws of the US
b.       All cases affecting ambassaors, public ministers, counsels
c.        All cases of admiralty and martimine JDX
d.       To controversies where: the US is a party, between 2 or more states, between a state and a citizen of another state, to controversies between citizens of different states, to controversies between citizens of the same state claiming land under grants of different states, a state, or its citizens, and foreign states, citizens or subjects
                                                                                                                                       i.      Federal courts are immune from political pressure and can interpret the Constitution without pressure
                                                                                                                                      ii.      Some issues must be heard in federal court rather than state to guard against political pressure for uniform interpretation.
                                                                                                                                    iii.      Federal courts are experts on federal law.  Cases may refer to issues that are so important that they need insulation.  Judicial power extends to all cases
                                                                                                                                    iv.      The cost of judicial error is much higher in Con Law questions. Common law questions have little cost: the other political branches can step in to correct the error. When you announce a fundamental norm under the Constitution, the ENTIRE SYSTEM is bound and there’s little that can be done to change the result.
1.       Gives SCOTUS enormous power but it can only be invoked in certain circumstances.
                                                                                                                                     v.      Controversies may refer to state questions and state judges are experts on state law. Federal courts may not always have the right to hear controversies.
                                                                                                                                    vi.      THE ONLY TIME CONGRESS HAS EXERCISED THE EXCEPTIONS CLAUSE WAS WRT TO CONTROVERSIES.
2.       Clause 2:
a.        Original: all cases affecting ambassadors, public ministers, counsels, and those where a state is party.
b.       Appellate: everything else as to matters of law and fact
                                                                                                                                       i.      Congress’ Exception Clause may expand appellate JDX; original JDX may not.  The original JDX is exhaustive. (Marbury v. Madison)
                                                            iii.      Federal Court Review of State Decisiosn
1.       In diversity cases, a lower federal court can hear both state and federal questions (supplemental JDX).  Can proceed all the way to SCOTUS but only if it originates in the lower federal court first.
a.        Is it on the list? If Yes, is it a federal question on appeal?
b.       Is there a congressional grant of authority?
                                                                                                                                       i.      Exception Clause: look for congressional authorization of JDX
3.       If case arises/originates in state court, appeal to SCOTUS is limited to:
a.        Improper federal claims and not a state court’s ruling on state law.
b.       Unless federal law trumps state law and therefore the state law is probably unconstitutional.  There are a minimum set of rights that states cannot violate under the Constitution.
c.        Do not argue with state law qustions unless the state law itself raises a federal question, which authorizes SCOTUS to review it.
                                                                                                                                       i.      Virginia Supreme Court and SCOTUS rare in a stand off and VASC refuses to deliver case to SCOTUS for review.  VASC says they were just as supreme as SCOTUS and that “inferior” was only to lower federal courts.  Had just as much right to determine constitutionality of treat and that § 25 abridged states’ rights and was unconstitutional
1.       SCOTUC has JDX: federal question heard on appeal involves treaties and states, with exception clause grant under §25 of Judiciary Act
2.       Art. I § 10: includes list of prohibited state intrustions

                                                             iii.      Threatened harm, if adequate and sufficiently concrete
b.       Causation:
                                                                                                                                       i.      “but for” P’s actions, I would not be injuryed/threatened with imminent danger AND
                                                                                                                                      ii.      claim is redressable – i.e. if relief is granted, I will be made whole again or threatened injury will be removed
1.       WARTH V. SELDIN:
a.        Zoning ordinances present people from moving from Rochester to Penfield.  Zoning rules restricted number of and kind of apartment buildings to keep out poorer persons
                                                                                                                                                                                                               i.      Not redressable because the buildings did not even exist.  We do not know if Rochester residents would qualify for the buildings because they are not built.  Speculative argument.
a.        Plaintiffs in this case had a real plan to build and move into a facility, however had zoning restrictions to overcome.
b.       Courts have a substantial likelihood that the requested relief would lead to redress for these Ps.
c.        General bar against third party claims: must be your own
                                                                                                                                       i.      Exceptions
1.       Statute may authorize third-party claims [congress authorization] 2.       Forced to violate third party rights not before the court
a.        CRAIG V. BOREN
                                                                                                                                                                                                               i.      Females can be sold beer earlier than men.  Female bartener challenges under equal protection clause.  Bartender has a particular injury (loss of sales) in addition to 3rd party harm. (injury even though she is not a part of the affect group —– i.e. males)
d.       No general grievance – must have a particular and unique injury
                                                                                                                                       i.      LUJAN V. DEFENDERS OF WILDLIFE
1.       Two members of association want to study animals as a part of scientific responsibility and sue for threathened harm because they would be blocked in the future.  Congressional statute gives right to sue if executive branch improperly interprets the statute.
a.        No injury in fact
b.       General grievance
                                                                                                                                                                                                               i.      There was a generalized grievance being imposed on everyone at the same time.  Congress gave everyone the right to the same claim at the same time – court cannot know who the right P is.
2.       Made their own claim saying that they were not like everyone else – they are scientists and their interest is different
a.        This harm alleged is purely speculative – no plans to study the species in the future