Constitutional Law I Outline

 
U.S. Constitution
1. Federalism: state and federal govt coexist
a.       Powers of Fed Govt limited and enumerated in C
b.       Separation of Powers
c.        Congress’ Commerce Power: Most Important!
 
Sec 8 lays out powers congress has, 10th amendment gives states all other powers not laid out to congress. 10th amendment gives a lot of power to the states. Federal govt powers are limited to what is given in constitution (article 1). Act 1:10 is list of what states CANT do. 
 
 
2. Major Class Questions
a.        How do we interpret this document,
How do we decide what it means?
 
Modalities of Interpretation
 
1.              modalities of constitutional interpretation: (constrain justices in enforcing the constitution and not their own will)
a.                    Text (does resolve many issues)
b.                    Interpret it in line with the structure of government it sets up (3 branches of govt and state soveriegnty)
c.                    Original meaning/history (not original INTENT) is what the general public meaning was when it was adopted
                                       i.                               Problem with this: original meaning may not address a problem we have now
d.                    Precedent/Tradition (what has it come to mean in usage over time?)
e.                    Social consensus/prevailing morality (as it exists now – controversol
                                       i.                               Problems: judges are not a better judge than congress on prevailing morality
                                     ii.                               Rights in the constitution should sometimes be a shield against social consensus
f.                     Experience/Prudence
 
 
Types of Power
Ennumerated
Implied
inherent powers
 
 
Initial Questions: 
 
1.            Why would state pass this ordinance?
2.            Identify the power being invoked
3.            Explain the rule of the power being invoked
4.            Explain internal limits on the power
5.            Explain external limits of the power
Jackson Categories
6.            Explain the line drawn or questions asked to find the line
7.            Is the suit justiciabile? 
Case or controversery
Legal question
P has standing
 
Condition of the law is both the carrot and the stick (what is being offered and what is rewquired)
Purpose is overall reason for the law
Always ask what power is congress exercing in passing the law
 
 
Judicial Power
Marbury and beyond
Limits on judicial authority
 
v     Review of Acts of Congress and Executive Branch
 
Rule:
SC can declare act of congress or state unconstitutional
Judicail Review: Power to declare unconstitutional acts of the govt
 
 
ü      Marbury v. Madison (writs of mandamus)
Marshall’s Decision
1.       Overview:
1)       Right to Commission
a.       Marbury and other justices were entitled to commissions by President’s signature
b.       Marshall could have stopped cases if he’d ruled that commissions were only valid on delivery
2)       Remedy
a.       Marshall says Madison’s failure to grant commissions entitles Marbury to remedy
b.       Distinguishes between Political Acts (not reviewable by courts) and legal duties of president (are reviewable by courts)
3)       Judiciary Act allows writs of mandamus (relief Marbury sought) Mandamus demands that an official perform his mandatory duties
4)       Marshall concluded that this grant of jurisdiction(statute) was unconstitutional (Art III §2 – issue of mandamus is not in original J of SC)
5)       Supremacy of Constitution
a.       If SC sees conflict btw constitutional provision and congressional statute, court has the duty to declare the statute unconstitutional and refuse to enforce
                                                                                                               i.      Constitution is supreme:
                                                                                                             ii.      SC, not congress, is supreme interpreter
 
2.       Basic Decision Tree
Does marbury have the right to the comission? Yes
If he has the right, does he deserve remedy? 
a.                   Yes, but Marshll notes that there are cases in chich executive branches are not revieable by court (political act v. legal act). 
b.                   Political acts are only reviewable by people to vote him out of office. 
c.                    But if acts required by legal duty there can be a review by the court and court can demand performance. 
Did Marbury request the right remedy- Can this write be sent to Madison? (Most controversial)
 
Ø      What Acts of Ex branch can be reviewed by SC?
1.       Political acts
a.       Not reviewable
b.       Only reviewed by voters who vote P in and out
2.       Legal acts: acts P is required to do by legal duty
a.       Can be reviewed by SC
b.       SC can demand performance
 
 
Ø      Can one branch of govt order another branch to do something?
1.       Madison
a.       would argue (if he had shown up) that he was covered under executive powers. 
                                                         i.            And the courts can’t tell the executive branch what to do. 
                                                        ii.            It is an equal branch of govt. 
b.       would further argue that the executive branch has a lot of responsibilities and can’t be bothered with small things and needs to maintain some confidentially.
c.        System of executive branch deliberation will break down if can’t have confidential discussions with subordinates.
2.       Court/Marshall: Checks and balances
a.       If the president is acting illegally, and we don’t force him to do what is legal, we are placing the president above the law. 
b.       Marshall is holding the law above the president, not putting the SC above the president. 
c.        Marshall says this is related to individual rights, not in respect to something of national importance. How much is a burden is it for the secretary of state in this case? Pg. 4
 
Reasoning for Judicial Review of Executive Acts:
1.       Why not judicial review of executive branch:
a.       Tie up the president and his officers on small matters
b.       Impeded open discussion in the excutive branch
c.        Govt branches are equal, one doesn’t supercede
d.       congress can also decide if their acts are constitutional [the voters can police the congress]  
2.       Why its okay:
a.       Doesn’t really tie up the executive branch- its just making sure its doing what it should do
b.       If we say President can ignore legal obligations, we are saying executive branch stands above the law and the legislative branch
c.        Structural Argument: Constitution sets limits of govt
1.       Unless SC has power to call act of constitutional, it would be meaningless to have a limited govt. That govt could do what it wants. 
d.       Marshally could argue that congress violated the constitution – fox gaurding the hen house, congress could abuse its power
 
Marbury v. Madison/Sec 13 of the Judiciary Act v. Constitution in conflict? [Is JR Okay] Does SC have power to issue writ of mandamus? [Original v. Appellate Jurisdiction] Textual Interpretation
1.       Not all constitutional issue can go straight to SC.
a.       Marbury says the Judiciary Act gives SC power to see this case (bottom of pg 4). Congress authorized this act.
                                                         i.            Statutory Authority grants J:
1.       Sec 13 Judiciary Act of 1789: passed by very first congress (Sets up basic structure of federal court sytem)
b.       Marshall says Textual Authority – Art 3 constitution set a ceiling of original J which can’t be increased by Judiciary Act. §13 conflicts with C, Art III
                                                         i.            Sec 1: Judicial Power is given to SC (and inferior courts by Congress)
                                                        ii.            Sec 2. Judicial power includes listed cases
                                                      iii.            Sec 2, clause 2: breaks these cases down by which can be heard by SC by original jurisdcition and those in which a state is a party (orginial v. appellate jurisdiction)
                                                      iv.            Constitution does NOT list writs of mandamus to be original jurisdiction. 
1.       Marshall notes: shall have original jursdiction implies a negative(being that they don’t have original jurisdition in the Marbury case) e.g. you shall do your con law reading tonight – by this marshall says you shall do your con law reading but not your torts reading. Possibly you could add more areas of original jurisdiction – sets a ceiling. 
c.        Oppposing Argument: Other possible reading is that this sets a floor – a minimum mandatory amount of