Constitutional Law
Halberstam
Winter 2013
I. Article 1: Legislature
a. Section 1: Legislative power vested in bicameral Congress
b. Section 2: House of Representatives
c. Section 3: Senate
d. Section 4: Election of Congressmen and Congressional meetings
e. Section 5: Procedure
i. Each house judges qualifications of its members
ii. Houses will self-govern and record their proceedings
f. Section 6: Compensation, privileges, restrictions
i. Congressmen will be compensated and immune from arrest during sessions and when traveling to sessions, except for high crimes
ii. On conflicts of interest
g. Section 7: Bills
i. Bills for raising revenue must originate in the House
ii. Executive veto power (cl. 2-3)
1. If bill passes House and Senate, president must sign
2. If he doesn’t sign, he must return it to the house within ten days
3. It must then pass both houses with two thirds majority
h. Section S: Enumerated Powers of Congress
i. Tax power (cl. 1)
ii. Borrowing power (cl. 2)
iii. Commerce clause (cl. 3)
iv. Naturalization and bankruptcy
v. Monetary power (cl. 5) – coin money and regulate value thereof
vi. Anti-counterfeiting, post offices and post roads, intellectual property
vii. Create federal courts inferior to the Supreme Court
viii. Admiralty and international law
ix. War power (cl. 11)
x. Military powers
xi. Seat of government (D.C.)
xii. Necessary and proper clause (el. IS)
i. Section 9: Limits on Congress
i. Habeas Corpus (cl. 2)
ii. No bill of attainder or ex post facto laws (cl. 3)
j. Section 10: Limits on States
II. Article 2: Executive
a. Section 1: Executive power vested in the President
i. Details of term
ii. Election procedure
b. Section 2: Presidential Powers
i. Commander in chief and pardon power (c!. 1)
ii. Treaty clause and appointment clause (c!. 2)
c. Section 3: Presidential responsibilities
d. Section 4: Impeachment
III. Article 3: Judiciary
a. Section 1: Judicial power vested in Supreme Court; judges hold office during good behavior
b. Section 2: Jurisdiction and procedure
i. Original jurisdiction
1. Cases concerning foreign ambassadors
2. Cases to which states are a party
ii. Appellate jurisdiction, subject to exception and regulation of Congress
1. All cases arising under the Constitution, federal laws, and international treaties
2. Admiralty and maritime cases
3. Controversies to which federal government (U.S.) is a party
4. Cases between citizens of different states
5. Cases between citizens of the same state claiming lands under grants of different states
6. State citizens and foreign states, citizens, or subjects Ill. Criminal procedure
c. Section 3: Treason
IV. Article 4: States
a. Section 1: Full faith and credit
b. Section 2: Obligations of states
i. Privileges and immunities clause (cl. 1)
ii. Extradition clause (cl. 2)
iii. Slavery clause (cl. 3)
c. Section 3: Annexation
d. Section 4: Guarantee clause
i. U.S. shall guarantee to every state a republican form of government
ii. Protect them from invasion and domestic violence
V. Article 5: Amendment Process
VI. Article 6: Federal Powers
VII. Article 7: Ratification
Amendments to U.S. Constitution
I. Amendment 1: Establishment clause; free exercise clause; freedom of speech; right to petition
II. Amendment 2: Militia; state sovereignty; right to bear arms
III. Amendment 3: Quartering troops
IV. Amendment 4: Search and seizure
V. Amendment 5: Due process; double jeopardy; self-incrimination; eminent domain
VI. Amendment 6: Right to jury; speedy trial; public trial; confrontation clause; right to attorney
VII. Amendment 7: Civil trial by jury
VIII. Amendment 8: Cruel and unusual punishment
IX. Amendment 9: Rights not enumerated
X. Amendment 10: State rights
XI. Amendment II: State’s sovereign immunity
XII. Amendment 12: Electoral college
XIII. Amendment 13: No slavery
XIV. Amendment 14: Reconstruction
a. Section 1
i. Citizenship-born and naturalized in the US, then citizen
ii. Due process clause
iii. Equal protection clause
XV. Amendment 15: Voting (race)
XVI. Amendment 16: Federal income tax
XVII. Amendment 17: Representative Senate.
XVIII. Amendment 18: Prohibition of alcohol
XIX. Amendment 19: Vote (gender)
XX. Amendment 20: Lame duck amendment
XXI. Amendment 21: Repeal of prohibition
XXII. Amendment 22: Limits presidential terms
XXIII. Amendment 23: No poll taxes
XXIV. Amendment 24: Presidential succession
XXV. Amendment 25:No maximum voting age
XXVI. Amendment 26: Compensation of Congressmen
Con Law Overview
I. The Odyssey: The Constitution as a pre-commitment device
a. Alarm clocks, New Year’s resolutions, Ulysses being bound to the mast are all things which enable by constraint.
b. Part of the notion of a constitution is that it is a set of constraints, ratified with clear heads, that will be tempting but detrimental to break during periods of excitement, bipartisanship, or duress.
c. Framework for limited collective self-governance
II. Legality of the Constitution
a. Under the Articles of Confederation, amendments were to be made unanimously by all the states.
b. In that sense, the constitution is illegal.
c. The Articles of Confederation were a treaty.
d. Several forms of “legality” at play in Articles of Confederation
i. Natural law
ii. International law
iii. Constitution of England
iv. Contract law
e. Radical constitution
i. The U.S. Constitution bases its legality in nothing other than itself.
ii. Legality is ultimately created by a political act
iii. Simultaneously, that act creates the political body.
f. Entrenched clauses of Constitution, prohibited from amendment by Article V
i. States’ equal suffrage in the Senate (Art. I, § 3)
ii. States’ right to control immigration into their state and prohibition against direct taxation (Art. I, § 9)
g. Can these rules be disregarded? Can one unconstitutionally amend the constitution? One could call it a legal revolution-a nonviolent but illegal act that alters the Constitution.
h. It may not be done, but it can be done, and it damages the credibility of the Constitution each time that it is, just like breaking New Year’ s resolution.
III. Functionality of U.S. Constitution
a. Is it democratic? Is it useful for limited collective self-governance? Does it prevent domination?
b. Allows for federal legislation, which was not allowed under Articles of Confederation
c. Salient features of Constitution
i. Separation of powers
ii. Federalism
iii. Individual rights (not until 14th Amendment)
d. Separation of powers controls factions
i. Slows down government – crude, but important
ii. Checks and balances – a government that controls itself
e. Federalism of U.S. Constitution
i. States have equal votes in Senate (repealed by 17th Amendment)
ii. Changing the Constitution requires ratification by three quarters of the states
iii. National power only has those powers enumerated (but not necessarily “expressly”) to it.
f. Circularly justified – ie. ‘the proof is in the pudding’
y
d. “Filter” – ideas go through representatives, which we know are likely to be viable
e. Separation of powers and federalism = a double security
i. The government has internal checks and balances à forces government to control gov.
ii. This is an example of the Constitution bringing the politics into the system
iii. Institutionalized pluralism
iv. Can either view Madisonian ideas as interest group pluralism or institutionalized (separations of powers, checks & balances).
Part 1: Federal Judicial Power
Part 1.1: The Authority for Judicial Review
I. Constitutional review not expressly addressed in text
a. Silence could reflect a view that the power was obviously in the federal judiciary or it could have been an oversight.
b. However, it could also have been meant that the Court would only hear civil and criminal cases, but not review constitutionality of government actions.
c. If SCOTUS lacked the authority for constitutional review, how would we ensure that the Constitution were adhered to?
II. Judicial review is the power of the federal judiciary to review the constitutionality of federal or state laws and federal or state executive actions.
MARBURY v MADISON [1803]. Would-be Justice Marbury files suit in SCOTUS against Secretary of State Madison seeking a writ of mandamus to compel the latter to deliver the former’s commission. The Judiciary Act of 1789 authorized the Court to issue writs of mandamus (an order for someone to carry out a specific task). The Court found that it had the power to “declare what the law is” and thus could not follow the act of Congress that gave the Court original jurisdiction to issue writs of mandamus because it was an unconstitutional expansion of its original jurisdiction. The questions were (1 & 2 are dicta):
1) Does Marbury have a vested legal right to the commission? (Yes)
1) The sign and seal (without delivery) is enough because otherwise Adams’ constitutional right to appoint would be infringed. It’s a right, like property, that vests upon signing and sealing because it’s an irrevocable appointment and we don’t want the prexy to be sitting on a whole shitload of appointments. Furthermore, it’s property in the sense that it’s a meal ticket.
2) If he has a right and it’s been violated, do the laws of this country afford him a remedy? (Yes)
2) Discretionary/political acts don’t have a remedy because Marshall says that they don’t involve legal rights. Venn diagram where there may be a legal right but the court won’t adjudicate it? Maybe, but Marshall says the two don’t overlap. (This is inauguration of political questions doctrine)
3) Is the remedy a writ of mandamus (yes) issuing from this court? (No)
3.1) Mandamus is appropriate because this is equity – damages (even if measured by lost income) would not repair the SOP violation. Sending a message that high officials aren’t exempt from judicial watch/reach
3.2) Because this case hasn’t been in any other court, it’s original jurisdiction (1) The Judiciary Act purports to authorize mandamus in this case and (2) Article III prohibits that, then (3) the Judiciary Act is contrary to the Constitution and it is therefore void
