Huberfeld – Con Law – Spring 2014
General Important Constitutional Sections
· Article I – powers of Congress
o Section 1 – creation of Congress
o Section 2 – 2 houses of Congress
o Section 3
§ Clause 6 – impeachment; just 1 judge required for SCt, Chief Justice (nothing in CN says you need 9 judges)
o Section 7 – procedure of how law must be passed
§ Clause 2 – veto and veto override, presentment clause (2/3rd majority, super majority rule)
o Section 8 – Congress’s positive powers
§ Clause 1 – lay and collect taxes (general welfare clause à power to tax & spend)
§ Clause 2 – power to borrow money
§ Clause 3 – Commerce Clause
§ Clause 5 – power to produce actual, physical money
§ Clause 9 – create lower federal courts (only S.Ct. is mentioned, only has to have 1)
§ Clause 11 – declare war
§ Clause 12 – 16 – maintain the military
§ clause 18 – Necessary and Proper Clause
o Section 9 – negative powers of Congress (things that CANNOT be done)
§ clause 1 – slaves can be freely imported until 1808
§ clause 2 – writ of habeas corpus, i.e. “the great writ” – very important right; government cannot detain you without reason; you cannot touch writ of HB
o Section 10 – limits on states
· Article II – powers of president
o Section 1
§ Clause 1 – sets up president and gives him executive power
o Section 2
§ Clause 1 – president is Commander in Chief of army, sole power to pardon crimes against US
§ Clause 2 – 2/3rds vote to make treaties, make appointments in government sometimes, must be approved by Senate
o Section 3 – State of the Union and shall take care that Laws be faithfully executed
o Section 4 – impeachment
· Article III – Supreme Court powers/ Judicial Branch
o Section 1 – creates Supreme Court to hear criminal and civil, federal and state, and inferior courts as Congress may establish; shall hold Offices during good behavior be paid the same salary (lifetime appointment)
o Section 2
§ Clause 1 – federal question jurisdiction (cases that Supreme Court may hear); federal judges can be impeached
· Article VI – States’ Rights
o Section 1 – states can’t ignore other states’ legal acts; full faith and credit
o Section 2 – Supremacy Clause (everything has to be in line with the CN)
o Section 3 – no religious test for office
· Article V – how to amend CN (2/3rds vote to propose Amendments to CN); states can amend CN
Amendment X – powers NOT delegated to US, are reserved to the states
Bill of Rights – individual rights defined
I. Constitutional Interpretation
i. Textualismà we will look/adhere to the words of the Constitution. The language of the Constitution rules (“four corners of the document”)
ii. Originalismàthe courts should protect rights under the Constitution only if specifically in text or intended by Framers.
iii. Interpretivism/ Supplementalism (non-originalism)à the Constitution evolves by interpretation, not just by amendment; otherwise document lacks relevance as society evolves
Article III: judicial review
· Judicial review – power of courts to determine Constitutionality and therefore validity of laws enacted by the legislative branch and enforced by executive branch and states’ laws
· Marbury v. Madison explains what the powers of judiciary are and how far its powers extend
Marbury v. Madison (super-precedent)
· Judiciary can review laws and actions of federal government. It’s the province and duty of the judicial power to say what the law is. The court never actually exercised this power here; it just established the authority for judicial review.
· Adams trying to pack courts with Federalists before his term in office ends, naming 42 justices of the peace, which is all approved, but few are not delivered, Marbury was one of them
· Marbury sues for his Commission after Jefferson (the next president) says it’s not valid; files a writ of mandamus (form of duty that requires no discretion) in US Supreme Court
· 1st question: does P have right of commission? Yes, had vested right when it was signed and sealed
· 2nd question: when can the court review executive conduct? If there’s a right, does the right have a remedy? Can the court provide a remedy for the president?
o Acts that are political acts in nature cannot be controlled by the judiciary (finding people to fill the positions, like Marbury) à not reviewable. These acts are considered discretionary. Discretionary acts cannot be controlled by the judiciary.
o Political acts of presidents are not reviewable
o Nonpolitical acts (that require no discretion) à ministerial acts are reviewable by court because they don’t require discretion
§ Actual delivery of Commission is ministerial (so the court can review it)
§ Important that court can review executive branch because of separation of powers – “we are a nation of laws, not men,” so even president is subject to laws of the country
· 3rd question: language of Act that’s contested (that SCt can issue writ of mandamus)
o Article III gives instances where SCt has original jurisdiction
§ Section 2, clause 1 – appellate jurisdiction
§ Section 2, clause 2 – SCt jurisdiction
o Article II is not compatible to Act
· Can Congress expand the CN in this way? Can the judiciary stop them?
o CN is the supreme law of the land, if Congress could change the CN, then it would become just another document like the Judiciary Act
o CN is regulatory in nature, and we must follow the terms, otherwise it would invalidate the supreme law of the land
· 4th question: Who should decide whether a law is repugnant to CN?
o The SCt. When there’s conflict between CN and state government act, SCt deci
ources of authority for J doctrines
1) Constitutional- inherent in the Constitution; cannot be overridden by Congress
2) Prudential – “wise policy” dictates court to not hear the case; may be overidden
· Every P has to meet all 5 J doctrines
· Doctrine of Constitutional avoidance:
o Court will avoid Constitutional interpretation if less weighty method of deciding the case exists (e.g. statutory interpretation)
o Court assumes Congress intends to act constitutionally
5 doctrines:
1) Prohibition against advisory opinions
2) Standing (most important)
3) Ripeness (next important)
4) Mootness (least important)
5) Political question doctrine
+ Principles of avoidance
1) Court will not pass on constitutionality of legislation in friendly proceeding
2) Can’t anticipate question of Constitutional law in advance of the necessity of deciding it
3) Don’t formulate law broader than required by facts
4) Only decide Constitutional cases even if there are other questions
5) Listen to complaint if you show you’re not injured
6) Benefitted
7) Statute may be possible without asking Constitutionality
Prohibition against advisory opinions
i. There must be an actual dispute between adverse litigants and there must be a substantial likelihood that federal court decision will bring about some change.
ii. Opinion of the Justicesà Thomas Jefferson wrote a letter to the Supreme Court asking them to help out in a conflict between England and France. The court ruled that they could not hear the opinion because there is no actual case or controversy and that it is not their job to rule on cases that the executive and legislative branches should be dealing with (separation of powers). They also said that there is no substantial likelihood that their opinion would be followed.
iii. Hayburn’s Caseà the court was asked to hear a case in which the judges were to inform the secretary of war on an issue with disability benefits. The Supreme Court must be the final word. They ruled here that they most likely wouldn’t be the last word because the secretary of war has the final say so this would have been an advisory opinion.
iv. Other justiciability doctrines implement this prohibition
