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Constitutional Law I
University of Illinois School of Law
Hamilton, Daniel W.

–          Constitution was created to ratify the people and to limit majority rule
–          Functions that the Constitution performs:
o    Separation of Powers: Creates a strong national government that allocates the power among three branches; some things certain branches shouldn’t do (Horizontal)
o    Federalism: Allocates power between the national government and the state government (Vertical)
§ Supremacy Clause (Art. 6) – if there is a conflict, then Federal law wins.
·         However, there are enumerated powers of the federal government (Art. 1, §8)
§ Dual Sovereignty – State and Federal powers are both sovereign
o    Limits the governments power by protecting individual rights
o    Checks/Balances
o    Power of Judicial Review
–          Where Constitutional Arguments come from:
o    Text,
o    History
o    Structure
o    Inherent powers
o    Potentially policy
–          Four General Themes
o    Federalism
§ Supremacy Clause – Art. 6 – if there is a conflict, then Federal law wins. However, there are enumerated powers of the federal government (Art. 1, § 8).
·         Fed gov’t is most limited (fear of centralized tyranny). States can pass ex post facto or make money.
§ Dual Sovereignty – State and Federal Powers are both sovereign
§ Vertical
o    Checks/Balances
o    Power of Judicial Review
o    Separation of Powers
§ Some things that certain branches shouldn’t do
§ Horizontal – across federal gov’t branches
–          Types of Court Scrutiny
o    Strict Scrutiny – most rigorous (strict in theory, fatal in fact)
o    Intermediate Scrutiny
o    Rational Basis
–          Structure
Art I – Legislature
Senate (confirmation power) and House (power over money bills)
Sec. 8 – what congress can do
Art II – Creates Presidency
Sec 2. Cl. 8 – oath that pres took – swear or affirm
Art III – creates SC
Does not create any other couts – give Congress power to create any other courts
Judiciary Act –
Gives Fed Cts power over several different cases and controversies
Doesn’t say how many justices on SC – varied 5-10; Has been 9 since 1869
Art IV – grab bag
Privileges and Immunities
Slave Escape clause – The word slavery is not in constitution
Art V – ways to change the document
Changed by Bill of Rights first – 1791
Change by 2/3 vote – ¾ of States must vote for it
Been changed 27 times – last in 1992
Art VI – grab bag
Supremacy Clause – federal always trumps State
Concerned with federalism; Sovereignty of both fed and state?
Art VII – Ratification
Not unanimous
Need 9 states
 Article III:
–          Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.
–          Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;–to all cases affecting ambassadors, other public ministers and consuls;–to all cases of admiralty and maritime jurisdiction;–to controversies to which the United States shall be a party;–to controversies between two or more states;–between a state and citizens of another state;–between citizens of different states;–between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
o    In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
o    The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.
–          Section 3. Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.
–          The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.
–          The federal government is a government of limited powers.
o    For federal action to be legitimate, it must be authorized.
o    The Constitution is the instrument that authorizes the federal government to act.
o    Thus, whenever a question involves action by an entity of the federal government, the action will be valid only if authorized by the Constitution.
o    Constitution authorizes a federal court system in Article III, which provides that federal cts shall have judicial power over all “cases and controversies”:              
Authority for Judicial Review
–          Intro:
o    Judicial Review = The Power of Courts to Interpret Laws and Federal Regulations, Executive Actions, Administrative Agencies
§ Constitution silent as to whether SC (& other fed cts) have authority to engage in judicial review (framers intent not clear) and determine the constitutionality of acts of other branches of government.
·         But silence may reflect understanding that courts possess the authority for constitutional review and it was unnecessary to enumerate it OR framers had not thought about it.
§ Pros:
·         Insulated from politics (tenure/salaries) protects the possibility of unpopular, but necessary opinions
·         Unity/finality/consistency,
·         Judicial branch is the weakest branch – no power of the purse or sword. Judicial supremacy balances this.
·         Justices are supposedly experts in the law
§ Cons:
·         Countermajoritarian (9 people decide issues),
·         Text/Structure does not explicitly grant judicial supremacy to Federal Courts
·         Past v present; Threat of over-reliance, we get lazy on constitutional discussion b/c we assume SC will do it
o    Art. 3:
§ §2: “The judicial Power shall extend to (Federal cts can hear):
·         allcases in law and equity arising under this constitution,
·         the laws of the US and treaties made or which shall be made, under their authority;
·         to all cases affecting ambassadors other public ministers and consuls;
·         – to all cases of admiralty and maritime jurisdiction;-
·          to controversies to which the US shall be a party;-
·          to controversies b/w 2 or more states
o    – b/w a state and citizen of another state;
o    – b/w citizens of different states;
o    – b/w citizens of the same state claiming lands under grants of different states, and
o    b/w a state or the citizens thereof, and foreign states citizens or subjects.”
§ Creates the Supreme Court.
§ Allows Congress to create lower federal courts
–          Marbury v. Madison (1803, C.J. Marshall)
o    Establishes authority for judicial review of both executive and legislative acts – the Review of Other Branches of Federal Government
§ Power of the Federal Courts to say what the law is
§ Holding: Federal Courts are of limited jurisdiction and Congress cannot expand or limit this
·         The Constitution is “law” and it is the province and duty of the judiciary to declare what the law is.
·         Constitution imposes limits on government and these limits are meaningless unless subject to judicial enforcement
·         The power of judicial review:
o    Can review legislative acts
o    Can declare unconstitutional parts of law
·         Judges take an oath of office and they would violate it if they enforce unconstitutional laws. Every State legislator and executive and judicial officer is solemnly committed by oath to support the Constitution.
o    Art IV makes the constitution the supreme law of the land and laws must be made pursuant to it
o    Every state legislator and executive and judicial officer is solemnly committed by oath to support the Constitution
·         A law repugnant to the constitution is void
·         Role of Judiciary: Say what the law is
o    Apply and interpret the law
o    If two conflicts conflict with each other, the courts must decide on the operation of each
o    If law in opposition to the constitution, it is the very essence of judicial duty to determine if the law prevails, disregarding the constitution; or the constitution prevails, disregarding the law
·         Art III – short list of original jurisdiction for SC, is exhaustive
o    Const doesn’t say you cant add to it
o     Notes on Marbury v. Madison – Establishes a number of key propositions:
§ 1. Creates authority for judicial of executive actions
·         When individual rights involved, court can act
·         When executive has discretion as to how to act, no judicial review, only the political process is the check on the executive branch
§ 2. Art. 3 is the ceiling of federal court jurisdiction
·         Congress cannot expand the original jurisdiction of the SC
·         Art 3 authorizes the maximum jurisdiction of the federal courts
·         As a result, Congress cannot authorize federal courts to hear cases beyond what is specified in A3
·         Federal courts cannot gain jurisdiction by consent
§ 3. SC has authority for judicial review of legislative acts
·         Judiciary Act of 1789 – declared unconstitutional by Marbury b/c it authorized the SC to exercise mandamus on original jurisdiction
·         But does it? Seems to be about appellate jurisdiction
·         Chief Justice John Marshall established judicial review while declaring unconstitutional a statute that he read as expanding the Courts powers
·         Established the power of the judiciary and articulated a role for the federal courts
o    Marbury case law has been invoked in :
§  Cooper v. Aaron (1958) [NC]: (more expansive view of Marbury) SC responded to Arkansas’s refusal to obey a federal court order desegregating the Little Rock public schools by relying on the authority of Marbury. SC rejected Arkansas’s position and declared “Article IV makes the Constitution the supreme law of the land.” (Marbury declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution and the has been the principle ever since).
§  US v. Nixon (1974) [NC]: province of the judiciary is to say what the law is (authority is not given to the president)
o    Advantages of JR:
§ supposedly removed from political pressures since they’re not elected
§ tells us what the constitution means over time
§ no one group can be the judge of their own laws/conduct –i.e. legislature
§ the court acts only in concrete cases –makes judicial review a negative power
§ protect minority rights
§ keeps laws consistent and validates laws
§ legitimize a controversial issue
o    Disadvantages of JR:
§ life tenures –slow to change
§ anti-democratic –does not represent people
§ vagaries of litigation-they only hear cases and controversies
§ long, slow process
§ Not democratic, unelected judges
§ Giving unelected people the power to throw out laws
§ What if threw out laws of child labor or slavery?
§ Slows down the political process
§ Congress makes laws, always have to worry about SC coming in and questioning the law
§ If judicialize our political questions – as a legislature, constant worry that court is going to be out of step with democratic notions of the time and impose their own will
·         If legislature, if don’t worry about the Constitution, impoverishes political discourse – big policy debates about civil rights and abortion that would have had in democratic process are avoided b/c SC will deal with it
·         Court can’t really solve these problems – they need to go through long process of the law
–          Authority for Judicial Review of State Judgments
o    Marbury v. Madison – authority for judicial review of FEDERAL executive and legislative actions
o    Review of state court decisions is the Supreme Courts exercise of its appellate jurisdiction – Art. III, §2
§ SC appellate review has been limited to federal question – (SC may not review a state court decision that merely adjudicates questions of state law)
§ Authority for judicial review of STATE court decisions – 2 cases:
o    Martin v. Hunter’s Lessee – Federal treaty trumps state law
§ SC can overrule State Court decisions
§ Two competing claims to land in Virginia, Martin claimed title based on inheritance. Hunter claimed that Virginia took the land before the treaties (protecting the rights of British citizens to own land in the US) came into effect
§ VA Ct of Appeals – ruled in favor of Hunter
·         In favor of the state’s authority to take and dispose of the land
§ USSC – writ of error – reversed. Federal treaty is controlling
·         VA Ct of Appeals – USSC lacked authority to review state court decisions
§ Supreme Court has authority to review state court decisions
·         Presumed by the Constitution. Constitution creates the Supreme Court. Congress has discretion whether to create lower federal courts
·         If Congress didn’t create lower federal courts, SC would be powerless to hear any cases except for the few within its original jurisdiction. Unless it hears state court rulings
§ Importance:
·         State judges are of the same intelligence as federal courts
·         But state prejudices, jealousies and interests may obstruct or control the regular administration of justice
·         Supreme Court review is essential to ensure uniformity in the interpretation of federal law
o    Cohens v. Virginia
§ §25 of the Judiciary Act is constitutional
§ Supreme court has authority to review state court judgments, Even criminal ones
§ Criminal defendants can seek Supreme Court review if they claim that their conviction violated the Constitution
–          Federal Review of State Acts
o    Federal review of state acts (executive, legislative or judicial) was established by the Marshall court in several decisions.
o    Clear basis exists in the Supremacy Clause of Article IV, which states that Constitution, Laws, and Trieties of the US take precedence over state laws and that the judges of the state courts must follow federal law, anything in the constitution or laws of any state to the contrary notwithstanding
Originalism v. Non-Originalism
–          Originalism
o    We are governed by the original intent of the framers. Do the best the construct their intent.
o    Must control the judicial will
o    Look to norms in the written text or the framers clear intention.
o    Dead Constitution.
–          Non-Originalism
o    Dynamic statutory interpretation
o    Living Constitution
§ Constitution changes over time.
§ Judges should be aware of social changes.
§ Should not be bound by strict view of interpretation
§ Even if have framers intent, constitution

We must think that Congress has inadvertently passed the limit which separates the legislative power from the judicial power.” The courts are required to ascertain the existence of certain facts and declare that its jurisdiction on appeal has ceased.
·         Attempts to control the appellate jurisdiction are unconstitutional if they are not neutral.
o    Restricting the appellate jurisdiction is unconstitutional under separation of powers where it is used as a “means to and end” to alter the outcome of a particular case because it would deny the court the judicial function to “say what the law is.”
§ Facts: Congress adopted Statute – individuals could recover property seized during the Civil War if they could offer proof that they had not offered aid or comfort to the enemy during the war. SC held – presidential pardon fulfilled the statutory requirement of demonstrating that an individual was not a supporter of a rebellion. Congress adopted a statute providing that a pardon was inadmissible as evidence in a claim for return of seized property. As a result of this statute, cts have to dismiss cases if use pardon as evidence b/c pardon is evidence of guilt. Strips court of jurisdiction
§ Holding:
·         Congress invaded power of judicial branch b/c telling it how to rule. Passes line b/c passing legislature that tells judicial branch how to rule. Giving Rules of Decisions that SC must apply – determining outcome of particular cases
·         Congress can’t invade separation of powers by deciding the judicial branches rulings. Cant direct the outcome
§ Rules:
·         Congress can make exceptions and prescribe regulation to the appellate power of the SC – EXCEPT when Congress tries to violates the Separation of Powers
o    3 Spheres of Government – must be independent of each other
·         Legislature cant prescribe rules of decision to the Judicial Department. Can’t tell the Supreme Court how to rule.
·         If Congress tries to invalidate the Separation of Powers by an Act. If this is done, the Act is unconstitutional and void.
·         Narrow v. Broad Reading of Klein:
o    Narrow – Cant direct the outcome of a particular case providing a rule of decision
o    Broad – separation of powers – Congress cant use the exceptions clause to cripple the other branches of government.
§ General sep of powers principles that stop you from crippling Constitutional right to review
o    Arguments against majority: Klein only established that Congress may not restrict SC jurisdiction in a manner that violates other constitutional provisions.
·         Diff from McCardle b/c here giving an actual rule of decision. Saying this kind of P wins and this kind of P loses – that crosses the line
o    Being Tested in War on Terror – Hamdun v. Rumfeld (2006)
§ Habeas b/c military combatants held in military prison.
§ Ruled: Pres overstepped his authority when creating military commissions.
§ Then Congress passed the Military Commission Act w/ eliminated the Fed Ct jurisdiction to hear habeas petitions for detainees in Gitmo.
·         Stripped jurisdiction from fed cts  
§ Should cts uphold or strike down the Military Commission Act?
·         Uphold – McCardle argument: Congress has very broad powers to restrict jurisdiction
o    Textualists – bound by the Exceptions and Regulation clause
o    Since SC is largely unchecked body, jurisdiction stripping acts as a check on the SC and Fed Cts
·         Strike – Klein argument: should be ruled unconstitutional b/c particularized and violates based separation of powers principles (broad). Argue against broad jurisdiction stripping power. Judiciary is being stripped of basis Constitutional Rights and shouldn’t be able to do this by statute – by amendment only.
o    – Other argument – violates substantive due process b/c whatever power Congress has under the Exceptions and Regulations Clause, it cannot do something repugnant to the Constitution
§ Holding: Overturned. Congress can’t strip jurisdiction of right to hear habeas cases. Habeas is a constitutional right and this encroaches on the judiciary’s boundaries
Justiciability Limits
–          Art III, §2 – authorizes federal courts to hear several types of cases and controversies
o    SC – this means there are limits on the federal judicial power
§ These limits are known as Justiciability Doctrines
o    Fed Cts impose limits on themselves. Can refuse to hear the case
–          Justiciability Doctrines:
o    Judicially created limits on the matters that can be heard in federal courts
o    Some are “constitutional” – meaning that Congress cannot override them by statute
o    Some are “prudential” – meaning they are based on prudent judicial administration and can be overridden by Congress since they are not constitutional requirements
o    All raise basic policy questions about proper role of federal judiciary in democratic society
§ Want to ensure that federal courts do not intrude into areas committed to other branches of government
o    Intended to improve judicial decision making
§ By providing federal courts with concrete controversies best suited for judicial resolution
–          Cases and Controversies
o    Whether the court will hear the case (i.e. whether the case is justiciable) depends on whether a “case or controversy” is involved, and on whether other limitations on jurisdiction are present.
§ This requirement limits the business of the federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process
–          “Principles of Avoidance” – followed by SC to ensure that it will reach constitutional questions only when necessary
o    Article – Justice Brandeis
§ SC should refrain from passing on the constitutionality of an act of Congress unless obliged to do so, only when necessary
·         When the question is raised by a party who interests entitle him to raise it
§ Series of rules for when SC avoids ruling on constitutional questions:
·         In a friendly, nonadversary proceeding
·         Will not ‘anticipate’ a question of constitutional law
·         Will not formulate a rule of constitutional law broader than is required by the precise facts