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Constitutional Law I
University of Illinois School of Law
Moore, Michael S.

Constitutional Law
What is a Constitution? Why are they written?
·         Laws on how we make laws, how to make valid laws
o   English do not have one- presuppose
·         Every state must have something that obligates citizens to follow the laws
o   Every legal system has a constitution- just different forms
·         Separates Constitutional politics from ordinary politics
o   Legislatures are allowed to deal with political issues, not constitutional questions. Our Constitution takes it away from them; why it takes a supermajority to amend.
o   Why do we want to take away from the legislature? Majorities have the right to rule, but not on some issues.
§  Consistency
§  Distrust of Power: We fear majorities- majorities can be tyrannical
·         Fear of not being in the majority
·         Or majorities being carried away by passions
·         Thus, we have a government of limited powers- government can only act in certain areas
Art. III
·         Vests the judicial power of the United States in one Supreme Court and such inferior courts as Congress may establish.
o   Necessity of inferior federal courts at issue at Constitutional Convention b/c worried State Courts would not apply federal law and guard national interests.
o   Judiciary Act of 1789 established lower federal courts
·         Federal judges are afforded life tenure during good behavior whereas state court judges are subject to electoral accountability.
·         Federal Judicial Power
o   “Cases or Controversies arising under the Constitution, treaties, or laws of the US”
o   Cases where US is a party
o   Issues affecting foreign policy: ambassadors
o   Cases affecting admiralty and maritime jurisdiction
o   Umpiring function: cases between two or more states, between a citizen and a state, between citizens of different states
·         Original jurisdiction: cases involving 1) ambassadors and 2) other public ministers and consuls, and 3) those in which a state shall be a party. In all other cases, SCOTUS has appellate jurisdiction. However, Congress can give lower courts concurrent jurisdiction in matters where SCOTUS has original jurisdiction. Practical today- o.j. when between two states.
o   If not one of enumerated, then not original jurisdiction.
·         Treason- levying war against the United States or giving comfort to the enemy
Limits on Federal Judicial Power
·         Standing, mootness, ripeness
·         Political questions doctrine
·         Federal courts may only hear a matter when it is constitutionally and statutorily authorized
o   Congress has power to create exceptions and regulations to SCOTUS’s appellate jurisd.
I. Judicial Review
Marbury v. Madison- Congress passed act creating justices of the peace to be appointed by the President. Adams before leaving office appointed Marbury. His commission was signed by current Secretary of State John Marshall, however, they were not delivered before Jefferson took the presidency and told his Secretary of State, Madison not to deliver them. Marbury sought a writ of mandamus (order for an officer to do something)
·         Established the authority of judicial review of executive and legislative acts
·         Holding: The Judiciary Act was unconstitutional b/c Congress cannot allow original jurisdiction beyond the situations enumerated in the Constitution.
o   Judiciary Act authorized mandamus under original jurisdiction. BUT Art. III enumerated the Court’s original jurisdiction and Congress could not enlarge it.
§  This is open to question b/c could be read as only being a floor that cannot be reduced- but Marbury remains law today. But Congress can grant lower courts concurrent jurisdiction.
·         Four Issues:
o   1. Does Marbury have the Right to the Commission?
§  Yes, Marbury had a right- Commission was signed, no need for delivery
o   2. Do the laws afford Marbury a remedy?
§  For every right there is a remedy
§  Our government is a government of laws, not of men- no one is above the law
o   3. Is Marbury entitled to the remedy?
§  If the Executive Branch were exercising one of its granted powers under the Constitution, Marshall thinks that this Court would have no power to do anything- Executive has complete discretion. (political acts)
·         When agents are executing the will of the President, the are equally not examinable by the Court.
·         Political Questions Doctrine
§  But this was a delegated authority. The Legislature created this power, so the Executive must carry it out according to the law- no discretion.
o   4. Is SCOTUS the right place to direct a remedy?
§  Does SCOTUS have original jurisdiction? Madison is a public officer.
§  Can the Court declare laws unconstitutional?
·         It is emphatically the province of the Court to say what the law is.
·         Power to decide “cases” arising under the Constitution implied the power to declare unconstitutional laws conflicting with the basic legal charter.
·         Judges take oath to office and they would violate this oath if they enforced unconstitutional laws.
·         The Constitution is the Supreme Law of the Land
·         Policy behind the decision:
o   Marshall knew ruling for Madison was futile, b/c Jefferson wasn’t going to listen and would undermine power
o   Knew the decision wouldn’t likely draw opposition b/c it was declaring unconstitutional a statute that enlarged judicial power.
How is the great power administered?
·         Find 1) the meaning of the statute; 2) meaning of the Constitution; 3) square them. If they contradict, you take the higher law.
o   Requires a lot of judgment.
§  How broadly do we interpret?
·         If the Constitution is read broadly, the JA squares. If Const read exclusively, then JA doesn’t square.
§  Ex. What is general welfare? How do you square this?
·         Applied to the Judiciary Act of 1789
How Does One Justify The Great Power of Judicial Review?
1.      Legalist Argument
a.       Text of the Constitution: Art. III §1, §2, Art. IV Cl. 2
                                                               i.      Art. III, §1- the power of judicial review is just an extrapolation of their power to apply the law. (makes Marshall’s argument not circular)
                                                             ii.      The Constitution says it’s the Supreme Law of the land.
1.      If higher law conflicts w/ the lower law, higher law wins.
                                                           iii.      Giving the power to the judiciary to decide cases that arise under the Constitution would make no sense if they don’t have the power to examine the Const.
                                                           iv.      Marshall read the Constitution’s grant of original jurisdiction as exhaustive; “all other cases” limits it to the three kinds enumerated.
b.      Framer’

                                    i.      The distinction between a government of limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed.
d.      Because it is higher law, it is designed to be permanent and binding. Any act contrary to it is repugnant and not law and the legislature may not alter it by ordinary means.
                                                               i.      Giving the legislature the power to make law and determine if it violates the Constitution would give the legislature a practical omnipotence.
                                                             ii.      Why cant an ordinary statute override?
1.      Only a ordinary majority vote is required- even if 100% of Congress voted for it, it still only required an ordinary majority. Versus Constitutional Convention required unanimous consent; Amendment requires a supermajority.
e.       Constitution prevails over ordinary law: the constitution and not such ordinary act must govern the case to which they both apply.
f.        The Constitution binds judges as well as legislators.
                                                               i.      Judges must determine a case in accordance with the highest law i.e. the Const.
                                                             ii.      Interpretation methods (below) show that judges are making the same kind of inquiry that legislatures are- this is the complaint.
Interpretation: How do we interpret a statute?
1.      Semantics: Meaning of the Words
a.       Behavioral Test: what would most people who speak the language say it means
b.      Paradigm: what has to be meant by the word in order for the word to have meaning
c.       Definitions
d.      Meaning as to the nature of the thing
2.      Semantic: Intentions
a.       What the Utterer actually meant
3.      Pragmatics: context of the utterance
4.      Audience Understanding
a.       How the target audience of the first generation understood it
5.      Hypothetical Intentions: what the legislature would have thought if we asked them now
a.       Even if they didn’t have an intention at the time; if they know what we know now
6.      Actual intention of the current legislature sitting now
7.      Purpose
a.       Spirit of the laws
b.      Value of the law- find the value and you will know the law; i.e. is a vehicle probation for safety or environmental protection?
8.      All things considered value judgments
a.       Common sense interpretation
b.      Don’t interpret so you get absurd results (impeding federal mail example)
9.      Tie Breaker: Law of Lenity
a.       Give citizens the benefit of the doubt/chance to know the rule- rule in their favor