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Constitutional Law I
University of Kansas School of Law
Levy, Richard E.

Constitutional Law
The Constitution

a. Nature of Constitutional Law
v There is a degree of uncertainty
v There must be elaboration (interpretation)
v Con law is vague because it is so open ended
o Uncertain content
o Uncertain result
b. Written for 13 Sts under limited technology
c. The text is intact
i. It is an adapting instrument for changing times
d. Everything is value laden
i. Little issues relate to fundamental issues
EX: flag burning _a divisions of power
e. The court has changed doctrine
i. Ex: the Warren Court
ii. Thus the court operates w/in that area of Uncertainty making issues open ended
f. The Onion Methodology
i. Determine the Underlying Policy/Concept?
1. the court is always seeking a balance of sets of interest
EX: strong Gov’t v. independent Sts
2. federalism is driven by balance
ii. Basic Doctrine
1. in most areas the S.Ct. has already established a test
iii. How do the Facts plug into the test/legal frame work?
1. what really matters to the argument in the test?
iv. Factual analogy
1. critical step
v. interconnectivity
1. what ideas are repeating themselves over and over?
EX: political process failure
g. Non-democratic nature of the court must be taken into account
i. The members of the court are there for life
ii. They step in when the political process fails
h. Const.’s Historical Background
i. Articles of Confederation
1. a congress only
2. limited federal authority
3. problems
a. no taxes/taxing power
b. Sts pursued independent foreign relations policies
c. trade wars between Sts because of no national authority
ii. Constitutional Convention
1. decided to toss rather than Ame
2. limited charge
3. dramatic debates and compromise
4. ratification process for acceptance
iii. The Enlightenment/Liberal Philosophy
1. new structure was a representative democracy
iv. Structural Features
1. federalism
2. separation of powers
v. Protection Of Individual Rights
1. there were limited provisions in the text
2. Thus the Bill of Rights was inducted
3. rights were expanded w/ the Reconstruction Ames
vi. Questions to Pose
1. How do we interpret Constitutional texts?
2. Why does the Constitution bind us?
b. Marbury v. Madison and Judicial Review
a. Introduction
i. Fundamenta

ure from the decision
2. Political Vulnerability—judges were being impeached and the Federalist party was very unpopular
3. he also wants to help his party/Federalist’s cause
ii. The Solution
1. Marbury has a right to the commission
2. courts have power to order its delivery
a. officers of the country are bound by law
b. their status as officers does not exempt them from being bound
3. BUT jurisdiction in the case was impropper
d. Review of Executive Action Established
i. Rule of Law Premise—
1. executives are bound by law
ii. Negative Proof (p.3-casebook)
1. Rule of Law Required remedy for violation of rights (p.3)
2. the US is a rule of law St
3. THEREFORE if there is no remedy, the US is not a rule of law St
iii. Acts of political discretion/Political Question Doctrine (p.3and4)
1. they are distinguished from legal duties
2. It is the nature of the acts not the status of the office, which makes it necessary
e. SO