Select Page

Constitutional Law I
University of Mississippi School of Law
Cochran, George C.

·         LIBERTY
§  The Framers were concerned about the weakness of the several states under the Articles of Confederation
·         Could not raise a common army, interstate trade/ currency issues
·         Susceptible to influence from foreign powers
·         The federal govt. that existed was ineffective and it was decided that a limited federal government was needed
§  Federalist 10- Madison advocated for a stronger federal govt
·         Madison was concerned about factions and special interests
·         Concerned about power being used for oppression
·         Concerned that factions are motivated by self-interest
·         Concerned about people being motivated by passions, prejudices
·         Madison suggests we cannot reasonably prevent the causes of factions, so we must try to control its effects
·         He suggests controlling the effects of faction by having a broader republic
·         He suggests an extensive republic is better because more localized groups are more homogenous
·         It is more likely that minorities will be oppressed in a smaller community
·         States more likely to be tyrannical/repressive than fed govt
·         He believes this would lead to coalitions as opposed to a supermajority
·         He suggests that a representative republic is better than a true democracy because the representatives will filter and temper the passions and self-interest of the public
·         He suggests that representatives deliberating and forming coalitions will also temper self-interest and passions of factions and will lead to them considering the public interest
o    Constitution is supreme
·         The Constitution is not ordinary law- it trumps all else and cannot be altered except by amendment
o    Constitution is a loose framework
·         No separation of powers clause (implicit)
·         No federalism clause (nothing talks about the division of powers between states and the federal govt)
·         It doesn't talk much about the kind of powers the federal govt. has
·         Creates one Supreme Court and gives Congress power to create lower courts
§  No details about why SC will look like
o    Methods for Interpreting the Constitution
·         TEXT
·         STRUCTURE of the Constitution
§  Three separate articles for three separate branches- can infer separation of powers
·         PRECEDENT
·         GOALS behind clause/provision
§  HISTORY of congress/ constitutional convention/ ratification debates
§  Try to determine INTENT
·         Objective way of looking at it (Scalia): instead, we should look to see what a reasonable person would have understood the words to mean when they were written
·         How would Constitution/ amendments have been understood at the time they were drafted?
·         This is really a form of textualism
·         PRINCIPLES
§  Constitution must be read in a way that effectuates its principles
§  Partially encompassed under goals
§  What interpretation will best advance the goals & principles of the Constitution?
§  e.g. a health-insurance mandate could lead to an expansion of government power
·         General Principle
§  Powers of Government should be divided up so as to prevent the accumulation of power in the same hands and protect LIBERTY
·         It is okay for one branch to have SOME control over another
§  Federalist 47
·         The whole power of one branch can't be in the hands of the other
·         If King can appoint and remove judges, he controls the judiciary
·         If he can appoint them but not remove them, he does not control them fully
·         The STRUCTURE of the govt must be how each branch's power is checked
§  Federalist 48
·         Mere parchment barriers not enough restraint to keep branches from encroaching on each other
·         It would be pointless to try to limit the boundaries of each branch
·         Commerce Power an example of parchment barrier
·         Must structure govt to provide CHECK on power
·         He believes govt can be set up in a way to make it unlikely that one branch will overpower another
·         He thought that the legislature would be the most powerful branch and would usurp power whenever possible
·         Focus of checking and balancing should be on legislative branch in a republic
·         COMPETITION FOR POWER between the branches will check the power of each
§  Federalist 51
·         Ambition must be made to counteract ambition
·         Govt designed so that each branch is trying to increase its own power
·         When one branch encroaches on the other's turf, that branch with check them
·         Focus is on checking Congress's power
·         Recognizing the legislature is the most dangerous branch, power is divided into 2 branches
·         This promotes deliberation and makes it harder for them to act
·         Veto is principal check for president on legislative branch
·         Court's primary check is striking down laws as unconstitutional
·         The flaw in the plan is that the framers did not foresee political parties
·         This changes the dynamic of institutional loyalty
·         Congressional members of President's party will go along with him
§  Courts can declare laws unconstitutional
·         “It is emphatically the province and duty of the judicial department to say what the law is.”
·         Marbury v. Madison (1803) – Held the Judiciary Act of 1789 unconstitutional because Congress cannot allow original jurisdiction beyond the situations enumerated in the Constitution; Congress could not give S. Ct. authority to issue writ of mandamus.
·         Federal courts are courts of limited jurisdiction, and that Congress may not expand the jurisdiction in Art. 3 of the Constitution
·         This is the judicial branch's check on the other branches' power
·         Marshall argues that Congress can't judge the limits of its own power, otherwise it would have no limits
·         Therefore, it must have been intended by the Constitution that the courts would review acts of Congress for constitutionality
·         Constitution limits govt power and judicial branch must enforce these limits
·         Those limits are meaningless unless subject to judicial enforcement
·         Judicial Supremacy
·         Court claims it has final say on Constitutional questions
·         Cooper v. Aaron- upholds judicial supremacy in interpreting Constitution by upholding federal power to enforce Brown v. Bd. of Educ.
·         They cite Marbury v. Madison to support the proposition that the federal judiciary is supreme in the exposition of the law of the Constitution
·         This is the first time the SC actually says this
·         Congress can't override Court constitutional interpretation
·         Dickerson v. United States- SC decides that Congress can't override an SC decision (Miranda) since their interpretation of the Constitution is the same as the Constitution itself
·         Has been challenged over the years– still debatable
·         Judicial review standards
§  Rational relation
·         Law almost never gets struck down
§  Intermediate scrutiny
·         Is there a SUBSTANTIAL reason for difference in treatment?
·         Does discrimination bear SUBSTANTIAL relation to this state objective?
·         Less restrictive means available?
§  Strict scrutiny
·         Law almost always gets struck down
·         Does govt have COMPELLING interest?
·         Is discrimination NECESSARY to achieve this interest?
·         Is there another way to protect this interest?
·         Judicial activism v. Judicial restraint (leave it to political process)
EXAM TIP: Make arguments about the proper role of the court
·         Political Questions are not for the courts (Judicial Restraint)
·         A political question is one that would be better decided by one of the polit

this info create an injury?
·         Exception: violations of Establishment Clause
·         Flast v. Cohen (1968)- allowed taxpayers to challenge a fed statute granting aid to religious schools.
·         Limitation on exception: if govt gives land, no standing
·         Valley Forge Christian College. v. Americans United (1982)- Flast held inapplicable to in-kind transfer of property.
·         What? Just because.  Standing is a game.
·         Congress can overcome generalized grievance prohibition by specifically granting standing
·         Congress can authorize citizens to bring suit if at least identifies:
·         the injury it seeks to vindicate and
·         the class of person entitled to bring suit
·         You would then have a cognizable injury in fact
·         Lujan Kennedy concurrence
·         “Citizen-suit” provision
·         Congress authorized standing by statute for citizens to bring suit due to “procedural injury”
·         Vermont Agency of Natural Resources v. U.S. (2000)- Court upholds standing in qui tam suit, where Congress specifically granted individuals standing to sue fraudulent govt contractors in the name of the fed govt.
·         Zone of interest
·         Almost never comes up; we won't talk about it
·         Congress can change or eliminate prudential elements but cannot alter Constitutional elements
·         Textual
·         Vested executive power:
·         Source: Vesting Clause, Art II Sec I: “The Executive power shall be vested in the President of the United States.”
·         Vesting clause does not vest all possible power in President
·         Why then, could Constitution need to say he has power to receive ambassadors, for instance?
·         That power would have been vested
·         Debate:
·         Essentialist model (strict separation of powers): certain actions are inherently “executive” in nature, and since Art II does not enumerate the executive powers (like Congressional powers in Art I) the President is vested exclusively/preclusively with BROAD, INHERENT & UNILATERAL Executive powers (Truman/Bush)
·         Functionalist model (functional checks and balances): no actions are inherently “executive” in nature, instead all actions/powers should be understood under a functional “checks and balances” approach. The branches are separate but share significant partial agency (eg, war powers), and the Take Care Clause imposes a limit upon Inherent/Exclusive Presidential Executive actions (Steel Seizure)
·         Commander in Chief
·         Source: Art II, Sec 2: “The President shall be Commander in Chief of the Army & Navy of the US, and of the Militia of the several states WHEN called into actual Service of the US”
·         Limit: Power limited to “theatre of war” (Steel Seizure)
·         Commander in Chief Clause not an exclusive power: Congress has the power to raise and support the military, to regulate the military, to regulate foreign commerce, and to declare war
·         Take Care (duty, not power)
·         Source: Art II, Sec 3: “The President shall take Care that the Laws be faithfully executed”
·         Duty, NOT Power: the clause does not confer an Independent Power upon the President, but instead imposes a DUTY upon the President to OPERATE UNDER THE LAW