Constitutional Law
I. Introduction
A. History and Theory of the Constitution
1. The Odyssey
a. A story about pre-commitment. We want to spell out the rule of the game in advance. Keeps us from having to make decisions as we go along.
b. What if the ship is sinking?
2. The Constitution
a. Drafted in 1787, ratified in 1789
b. Pre-commitment device – a form of higher law
c. Prevents the tyranny of the majority
d. Serves long term interests to protect personal rights and set structure for government
e. Difficult to amend – amendment process is in Article 5
f. Serves a constitutive purpose; defines us as a people
g. We make decisions in times of relative calm so that in times of crisis we stick to our original path
h. Framers of the Constitution thought the structure of the government was an important thing
i. Courts are important but not the exclusive decipherers of the Constitution
3. Tools/Modes of Constitutional interpretation
a. Text – what do the plain words mean? Textual arguments are sometimes referred to as what those words mean to an 18th century drafter
b. Parole Evidence – Things that are not in the docutmen tbut are contemporaneous to it: Federalist/Antifederalist Papers, Ratification debates, drafting conventions
c. Precedent – State decisis; previous interpretations of Constitution
d. Intent – Specific and General; history, custom
e. General Purpose
f. Needs of society
g. Context – what were the norms of the period? What has been done in times of crisis in the past.
h. Tradition/Custom – how have we treated the question before?
i. Structural – what does the organization of the government tell us?
j. Prudence – what is the right thing to do? What works? What might fulfill our higher purposes? What makes sense?
k. Conceptions of Justice
l. Values/Ethics/Morality – Justices’ or Society’s?
m. What if there’s an amendment process? Does that change our interpretation?
4. Legitimacy of the Constitution
a. What if Odysseus has said to bind the hands of his children and their children? Why should we be bound to this document that was made over 200 yrs ago by those who have nothing in common with us now?
i. Seems to work, why change it? It’s stable
ii. We think there are some moral value to the particular rules that are selected
iii. Helps hold together and define the country in the face of diversity
iv. Because there’s an exit strategy, we’ve all consented to the Constitution
v. Reverence for the founding generation
· But the founders were an elite group of white men – not at all inclusive of those around at the time
· Do we really have a right of exit? What if you are poor etc.
· What about those, like the slaves, did not come of their own accord?
· Maybe the framers were appealing to universal truths
b. Akerman: Constitutional Moments – more attention to the public good; long term project for common good. Critique of Prof. Akerman, there were Constitutional moments when things that he liked were done.
i. Founding
ii. Civil War
iii. New Deal
c. Thomas Jefferson espoused that there be a Constitutional convention every 20 yrs to bring it up to date to the current generation.
5. Declaration of Independence is not the Constitution.
a. Grievance set out in the DOI are answered in the Constitution
i. Quartering of soldiers
ii. Life tenure of the judges
iii. Jury trials
b. Tone of the DOI
i. Rebellious v. Constitution, which is more of a plan of gove
sees fit
v. Reasons for the Articles’ lack of Presidential Power
· There was strong vertical separation of powers so the need for strong horizontal separation of powers
· No need to divide powers again because there wasn’t so much power
· Time of great faith of legislatures and representation. There was little desire to create a strong checks system
i. Who authorized the Articles of Confederation? Where did the power come from?
i. They were still under the thumb of the king, so the document could be considered to be an illegal document because the source of law at the time was the king.
ii. To give it authority you have to look at the right to revolt etc.
j. Where’d the power come from to draft the Constitution?
i. They were authorized to amend the AOC but wrote a new one altogether ratified by 9 states.
II. The Institution of Judicial Review
A. The Basic Framework
1. Marbury v. Madison – 1803 Marshall
a. Founding opinion in Con Law; establishes judicial review. Should Marshall have heard the case? No – because he was really involved in the underlying acts. He ultimately decided that the SC did not have the jurisdiction over the dispute.
b. What does jurisdiction mean?
o Court has the power to decide the case. First thing that the court asks
· Personal Jurisdiction – power over the person
· Subject matter Jurisdiction – ability to decide the kind of dispute being brought to the court
o Federal courts are of limited jurisdiction – can be gotten through
· Constitutional authority
· Statutory authority
o Original Jurisdiction: The SC can be the first to hear the case
· Water rights
· Disputes between States
