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Constitutional Law I
University of Kansas School of Law
McAllister, Stephen R.

A.            The Constitution- 1)look at the overall structure; 2) watch for specific things
1.             Preamble- not viewed as having any legal effect
2.             Article I- Legislative powers
                                                a.             Section 1-vests legislative powers in Congress
b.         Section 2-
(1)           House of Representatives, chosen every 2 years,
(2)           and 25 years old, 7 year citizen of US, and must be
a resident of the state
(3)           apportioned according to population, 3/5 compromise, and provides for census
(4)-          vacancies
(5)           Speaker of the house, and have power of
                                                c.             Section 3- The Senate
(1)           2 from each state, were originally chosen by the legislature- changed by the 17th amendment, serve for 6 years
                                                                (2)           division into three classes for election
                                                                (3)           must be 30
(4)           VP is president of the senate but does not vote unless it is tied
d.             Section 4- Times Places and Manner of holding Elections- States have primary control over the election process
e.             Section 5- House can decide if someone is unfit to sit in the house; decide the rules, keep a journal
f.             Section 6, clause 1- gives senators and representatives immunity from litigation, privileged from arrest during house; or prosecution for speech or debate in on the floor
                                                g.             Section 7 (1)- bills for revenue originate in the house
                                                                (2)- presidential veto power
h.             Section 8(1)- Powers of Congress- borrow money, regulate commerce, establish rules of naturalization and bankruptcy, coin money, punishment of counterfeiting, establish post offices, promote the progress of science and useful arts (patents), constitute tribunals inferior to the Supreme Court, define and punish piracies, to declare War, grant letters of Marque and Reprisal (authorized people to go after pirates in the 18th century), raise and support armies, provide and maintain a navy, call forth the militia, organizing arming and disciplining the militia (National guard); DC established in clause 17- exercises exclusive jurisdiction; 18-to make laws anything necessary and proper for carrying out the previous powers
i.              Section 9
(1)-          slavery not prohibited prior to 1808- says Congress can’t prohibit until at least 1808
(2)-          privileges of writ of habeas corpus shall not be
suspended unless the public safety requires it;
(3)           no bill of attainder or ex post facto law (laws must be general- not specific to a person or identifiable groups- attainder); or ex post facto- can’t make a law saying something is criminal after someone has already committed it;
(4)-          no capitation or direct tax shall be laid unless in proportion to the census- thought they couldn’t do an income tax unless in proportion- changed by
the 16th Amendment (8)- no titles of nobility granted;
j.              Section 10- limits on states- no treaties, alliances, confederation, coin money, etc.
3.             Article II- Executive Branch
                                                a.             Section 1- executive power vested in a president
                                                                (2)-          electoral college
(3)-          vote by ballot- problem in election of 1800- tie between Jefferson and Burr- electors vote for a president/vice-president ticket; has happened a
few times that someone can have the popular vote and still lose
(4)-          determines the time of choosing the electors and the day when they give their votes
                                                                8-            oath
b.             Section 2- power to grant reprieves and pardons; power to make treaties; vacancies that happen during the recess of the senate; nominating SCOTUS judges, ambassadors,
                                                c.             Section 3- shall give a state of the union; execute the law
4.             Article III- Judicial Power
a.             Section 1- Supreme Court and such inferior courts as Congress determines;
b.             Section 2- extends to all cases, in law and equity, arising under this constitution, the laws of the US, diversity jurisdiction, admiralty, etc.
5.             Article IV- Full faith and Credit
a.             Section 1-idea is for the states to respect each other and their respective judgments
                                                b.             Section 2- privileges and immunities;
(2)-          fugitive provision;
(3)-          fugitive slaves to be delivered up to where they escaped from
                                                c.             Section 3- New states
d.             Section 4- US guarantee to every state in this union a Republican Form of Government
6.             Article V- deals with how to Amend the constitution 2/3 of Congress; ratified by ¾ of states
7.             Article VI- clause 2- supremacy clause
8.             Article VII-
B.            Bill of Rights- first 10 amendments- originally applied only to the federal govt.; 2) one argument against the Bill of Rights is that people naturally have these rights, and listing out specific rights may later be interpreted to mean that you don’t have any additional rights
1.             1st Amendment- freedom of religion, free speech, right of assembly
2.             2nd Amendment- right to keep and bear arms
3.             3rd-
4.             4th- no unreasonable search and seizures
5.             5th- indictment by grand jury, general due process clause
6.             6th- speedy trials, right to counsel
7.             7th- if worth more than $20 right to jury
8.             8th- excessive bail, cruel and unusual punishments
9.             9th- enumeration of rights in the constitution doesn’t deny natural rights
10.          10th- powers not delegated to the US by the constitution are reserved to the States
11.          11th- States have immunity against suits based on alleged violations of federal law
12.          12th- electoral college reform
13.          13th-prohibits slavery
14.          14th-due process, equal protection- congress has power to enforce
15.          15th- right to vote
16.          16th- allows for income taxes
17.          17th- direct election of senators
18.          18th- Prohibition
19.          19th-women’s suffrage
20.          20th- terms of the President and Vice President
21.          21st- repeal of prohibition
22.          22nd- FDR’s amendment- term limits
23.          23rd- gives DC some representation
24.          24th- prohibited poll taxes
25.          25th- presidential succession if president dies, resigns
26.          26th- 18 and up right to vote
27.          27th-was proposed by Madison, but never passed until 1992- says Congress can’t vote themselves salary increases that take effect before the next election cycle
                A.            CONSTITUTIONAL BASES:
1.             Art. III, Sec. 1 power over all cases arising under the laws of the US
2.             Art. VI., cl. 2 (supremacy) it is the duty of the judicial department to say what the law is- we will decide what the constitution ultimately means, so the judiciary decides if a legislative act is constitutional
                                3.             Art. VI., cl. 3 (oath)
1.             Supreme Court can review an act of Congress
a.             Ex.          Marbury v. Madison (1803)
1)             Facts:       1801- Marshall sec. of State for Adams, leaving office on March 4th when Jefferson is taking office; Marshall appointed as Chief Justice in February and takes office- is sec. of state and chief justice for that one month; reduced SC from 6 justices to 5- created a bunch of new judgeships; Marbury was appointed and affirmed by the Senate; commission was signed by Adams but it was never delivered; Jefferson told Madison to not deliver the commissions
2)             Marbury file a suit in the Supreme Court original jurisdiction seeking mandamus
3)             Under Judiciary act of 1789 (why Marbury filed in SC under original jurisdiction)
4)             Article 3 of the constitution: very specific about what we have original jurisdiction over: cases affecting ambassadors, etc. when state is a party- in all other cases, have appellate jurisdiction
5)             Marshall- Article 3 is inconsistent with the Judiciary Act of 1789- what happens if Congress does something that the Constitution doesn’t authorize? Constitution prevails over all other law-
6)            Constitution is paramount/ supreme under article 6- it is the duty of the judicial department to say what the law is- we will decide what the constitution ultimately means, so the judiciary decides if a legislative act is constitutional
7)            Article 3- power over all cases arising under the laws of the US. What it (Congress) cannot do is go back in and alter the articles of the Constitution
8)            Article 3 section 2 clause 2 …but with respect to appellate jurisdiction with such exceptions as the congress shall make- so congress will have some power over the court’s appellate jurisdiction
9)            Importance:        
i.              Emphasizing the supremacy of the Constitution over other laws
ii.                   SCOTUS ultimately gets to decide whether that is true
                                                b.             Remaining issues: Who decides
1)            Court may be ultimate interpreter, but its power may depend on the respect it has
2)            Problem: judicial review is countermajoritarian- courts are undoing what a majority has passed
                C.            JUDICIAL Review of State Court Decisions
1.             Supreme court has the power of judicial review over state courts with respect to federal law(Martin v. Hunter’s Lessee)
a.             state criminal prosecution: if it is a federal question, have the power- doesn’t matter if it is a civil or criminal matter (Cohens v. Virginia)
b.             Have been instances of state court resistance to SC orders- tricky business as the SC can’t enforce
3.             Almost all of SC docket is now governed by Certiorari
a.             Two situations in which it is by direct appeal:
1)            Voter’s rights act- court must take on appeal
2)            Congress can fast track something to a court if they need a quick decision (ex. a rule on line item veto)
b.             Takes 4 votes to grant a case on certiorari- called Rule of 4
c.             Stay of execution/cert petition- court said we’re going to take the case- but couldn’t get the 5 votes for stay of execution
4.             Key statute- 28 USC 1257- review of state court decisions
provision- unlike the judiciary act, can also be a case where they have accepted the federal law- just federal question jurisdiction
à            There are exceptions, but generally must come from the highest court of the state and must be a final decision
5.             TYPES OF REVIEW       
1.             Federal courts- Reviewing congressional/executive act in light of federal law
                2.             Federal courts- Reviewing state act in light of federal law
                3.             State courts- Reviewing state act in light of federal law
                4.             State courts- Reviewing state act in light of state law
a.     Original- Art. III, sec. 2, cl. 2
Supreme Court will not hear issues of state law unless there is a federal question or a mixed question, and if there is an independent and adequate state law ground to answer the issue, the Supreme Court will not hear it.
b.             Appellate: Independent and adequate state ground Ex. Michigan v. Long
1)             Vehicle was searched, found marijuana in trunk of car as well as in the passenger compartment- can you expand the Terry Stop to the passenger compartment?
2)             State has its own 4th amendment like provision- mixes them together and interpreted very broadly
3)            SCOTUS- O’Connor: clarifies the independent and adequate state law provision: if it is mixed, going to assume it is based on the federal issue
4)            better make it clear that it is resting on state law
b.             Points:
1).           Many state constitutions mimic federal provisions; but they don’t necessarily interpret them the same way
2).           State constitutions often have provisions that do not exist in federal provisions
                D.            Federal Court Jurisdiction: Limitations on Federal Court Review
1.                   Has to be an actual case or controversy- doesn’t give advisory opinions (Muskrat v. United States)
2.                   Standing- must be the right plaintiff (someone who has stake)
a.             Concept:
                1)            A personal stake
                2)            concrete adverseness which
3)            sharpens the presentation of the issues (Baker v. Carr)
a.             Basic requirements for standing: 
1)            Article 3 requirements:
a)            injury in fact to this plaintiff;
b)            causation requirement- injury has to be traceable;
c)             injury can be redressed by the courts
2)            Taxpayer Standing: generally not permitted, but an exception for Establishment Clause situations (Flast v. Cohen)
                a)            Logical link between status and act

b.                   political issues, no good answer, some committed to the executive or legislative branches- some questions that do not belong in the court
c.                    Voting rights- question: what about apportionment? Is there a constitutional limit to that? Is that kind of political maneuvering even something the SC should be involved in, or is it beyond the courts
d.                    Holding: Brennan- can decide the issue; one person- one vote- states cannot draw these dramatically different districts, so districts have to be roughly the same size throughout the states
e.                    Baker v Carr factors- outline 5 factors of Justiciability in which the court will not hear cases
1)                                issues of foreign relations
2)                dates of duration of hostilities- when a war starts and ends
3)                procedural validity of enactments/Constitutional Amendments
4)                                Status of Indian tribes
5)                Guaranty Clause (art. 14, sec. 4) questions- US shall guarantee to every state a Republican form of govt.- leave that to other branches
f.             Baker v. Carr Six Conceptual Categories
            1)                                Textually demonstrable constitutional commitment of issue to                                    a coordinate political department
2)                                Lack of judicially discoverable and manageable standards
3)                                Impossibility of deciding issue without an initial policy                                   determination of a kind clearly for nonjudicial discretion
            4)                                Impossibility of a court’s undertaking independent resolution                      without expressing lack of respect due other branches of govt
            5)                                Unusual need for unquestioning adherence to a political                                decision already made
                            6)                                Potentiality for embarrassment from multifarious
                                                pronouncements by various departments on one question
g.             Ways constitutional issues arise:
a.                   through litigation when the statute is the basis of the claim or defense
b.                   Govt. brings a civil suit based on the statute and
unconstitutionality raised as a defense
c.                    raised as a defense to a govt. criminal proceeding
h.       Powell v. McCormack
i)                     3 constitutional requirements under Article I- each house shall be the judge of the qualifications of its members
ii)                   Powell- didn’t have to do with his age, citizenship, or etc. Excluded due to bad behavior- ethical issues; was re
iii)                  Article 1 sect. 2- what is required to be in the house
iv)                  Article 1 sect 5- each house shall be the judge of the qualifications of its own members
v)                   Issue:- qualifications and Congress gets to decide
vi)            Court: this is judiciable- why? It’s the qualifications as set forth in the Constitution- interpreting Art. 1 sect. 2 as being the exclusive Constitutional qualifications- say Art. 1 sect 5 means the Congress gets to decide those three things, nothing else
i.              Nixon v. United States
i)              Federal district judge who is being impeached- house brings the charges, senate conducts the trial
ii)             Article 1 sect. 3 cl. 6- Senate has the power to try all impeachments
iii)            Senate appoints a committee to hear the charges and make a report,        which after that the full Senate will vote
iv)            Nixon is convicted. Issue- whether Senate rule XI which allows a committee of Senators to hear evidence against an individual who has been impeached and to report that evidence to the full Senate, violates the Impeachment Trial Clause- Art. I sect 3 cl. 6
vi)                  Argument: this is a non-judiciable question- not for the court to decide how the senate conducts a hearing
vii)                Holding: Not a judiciable question- why different from Powell? Senate has the sole power to try- Art. 1 sect. 3 cl. 6- sole power to try all impeachments- important choice of words; suggests judicial involvement is not a good idea- would be involving judges in the process of removing judges- what the framers intended was to not have the courts involved
viii)               How does Powell fit into this context? Powell- under art. 1 sect. 5 House gets to be the judges of the qualifications, but what we did in Powell is say the only qualifications are those in art. 1 sect. 2; here, the question is
j.         Goldwater v. Carter
i)              Pres. Carter terminated a treaty with Taiwan; Congress sues him             ii)             Congress sue arguing the President can’t do this unilaterally
iii)                  Article II sect. 2- authorizes the President to make treaties by and with the advice of the Senate- Senate has to approve by a 2/3 vote; what it does not address is how you terminate a treaty
iv)                  No specific provision stating the President has to get permission from the Congress to terminate a treaty
v)                   Simply granted the cert, wrote opinions, and vacated
vi)                  GVR- Grant, vacated, and remanded- what they did here
vii)                Summary Reversal- take the case and reversing on the merits without briefing and without arguments
Court- not justiciable; Powell- says there is another problem- ripeness- there was a