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Constitutional Law I
University of North Carolina School of Law
Pucillo, Philip A.

Phil Pucillo_Constitutional Law_Spring 2010


I. Course Overview

II. The Constitution of 1787
A. Article I – “All legislative powers herein granted…”
1. Limitations on Legislative Power
a. Herein granted. — Different language from other vesting clauses.
i. “The legislative powers…” would have allowed infringement on states’ legislatures.
ii. The constitution must specifically authorize any authority or power for Congress.
b. Bicameral Congress, with turnover
i. Section 3 – Senate
a. Originally elected by state legislatures (Changed by 17th Amendment)
1. Change was a product of the Progressive Era (read: “Power to the people”) (1913)
b. Serve 6 years (staggered by thirds)
c. Vice-President is president
1. No vote unless equally divided.
d. Impeachment.
1. Senate gets to “try” impeachment.
a. When president is tried, Chief Justice provides.
i. VP would be biased, whether loyal or disloyal.
b. 2/3 of Senate must be present.
c. Power is only to remove from office, not to hang, etc.
i. Can also ensure that person never holds office again.
ii. Person could also be tried criminally or civilly.
d. Significant power, so it’s divided with the house.
i. Wanted orderliness to it — unlike the French Revolution.
ii. Section 2 – House of Representatives
a. Originally elected by the people.
1. The only officers directly elected under original constitution.
a. Different election standards to prevent the two houses from effectively merging into one body.
b. Different constituencies have different interests.
b. Can choose their own leaders. (More a comment on executive limits.)
c. Impeachment.
1. House has the sole power to impeach.
c. Presidential/Executive Limitations
i. Veto power requires 2/3 vote from Congress to override. (in both bodies)
ii. Vice-president is president of the senate.
a. At the time, VP was #2 in Presidential votes.
iii. Limitations on Presidential Oversight
a. Congress can choose own officials. (Not an “executive” power.)
2. Section 6 – Protections for Congress
a. Cannot be arrested to and from Congress except for treason, felony and breach of the police
i. Protection from the executive to effect voting.
a. Serious problem in England at the time.
b. Anything said “shall not be questioned in other place”
i. Congressmen can slander all they want insider Congress. No liability outside.
c. No appointments to other offices while serving.
i. Can’t create a new office for yourself.
3. History to Legislative Power
a. Power invites tyranny — Profound Distrust of Power
i. Framers were concerned with the uprising of the Legislature because they have the power to make the law.
a. President’s and courts’ hands are tied by the laws of Congress.
b. VP (president of senate) was also #2 in votes.
ii. Framers were also concerned with the actual people.
a. Could become tyrannical the same way any institution could.
1. The reason the people aren’t given direct elections for every federal body.
b. Before the U.S. Constitution, the states had general legislative power, which was limited by each state’s constitution.
4. Section 8 – Enumerated Powers
a. Powers best exercised at the federal level.
i. States coining their own money, restricting trade, etc. would be problematic.
b. “Necessary and proper” – Affirmative grant, not a limitation.
5. Section 9 – Specific Prohibitions

B. Article II – “The executive power…”
1. President, elected by electors, elected by the people.
2. Limitations
a. Confirmation by the Senate.
i. Not the House, because of fear that Presidents from larger states could garner votes.
a. Appointments now from small states too.
C. Article III – “The judicial power…”
1. “During good behavior” aka for life.
2. Protected from diminishing salaries.
3. Section 2 – Gives jurisdiction to the Supreme Court.
a. Court of limited jurisdiction.
i. Authors didn’t want federal courts taking cases away from state courts.

III. The Separation of Powers
A. Article III and the Judicial Power of the U.S. Courts
1. Judicial Review
a. Marbury v. Madison
i. Facts – Pres. Adams signs commission for Marbury to be justice of the peace and the senate confirms. Marhsall doesn’t deliver it in time before Jefferson takes office. Jefferson’s Sec. of State, Madison, refuses to deliver commission. Marbury sues Madison for a writ of mandamus in Sup. Ct. seeking original jurisdiction. (Trying to draw attention. — Afterwards could go to a lower ct.)
a. History – Jeffersonian Republicans were afraid that an independent Judiciary that could nullify acts of Congress would become a tyrant. Federalists thought judiciary was best arbitrator of peoples’ rights. Alexander Hamilton wrote in ‘The Federalist’ that judiciary was the least dangerous because it controlled ‘neither the sword nor the purse.’
ii. Chief Justice Marshall answers several questions:
a. Does Marbury have a right to the commission?
1. Yes. Became a vested right when Marshall sealed and signed it.
a. If not, case would have been over here.
b. Is the delivery a legal obligation or political decision?
1. Legal obligation. Only a political matter when there is room for discretion.
2. Delivery of a writ is a duty; not within executive discretion.
c. Does the Judiciary Act of 1789 (a law) validly expand Sup. Ct’s orig. juris.?
1. Art. III only gives Supreme Court original jurisdiction to cases involving ambassadors, etc. and states as parties.
2. The Judiciary Act expanded this to “persons holding office.”
3. Marbury argues Art. III only sets a floor for Supreme Court’s original jurisdiction.
a. Marshall says no; the constitution sets limits, not floors.
b. The statute conflicts with the constitution. There is no jurisdiction for the court to hear this case.
d. Judicial Review (Marshall’s icing on the cake)
1. This falls under Article III, “The judicial powers…”
a. Not explicitly written into the Constitution.
2. It is emphatically the province of the judiciary to say what the law is.
a. Judges interpret the meaning of the Constitution (which is not only “a law” but the “supreme law.”)
b. Judges interpret the meaning of a statute.
i. Not legislature, which would give them too much power.
ii. Read the whole law, not just to the extent it is Constitutional.
c. Judges determine where they conflict.
i. The constitution always wins.
ii. Constitution is will of the people. Laws are closer to the will of Congress.
iii. Where they conflict, the laws are null and void; not exactly “struck down.”
b. Cooper v. Aaron
i. Judicial Exclusiveness
ii. Facts – Arkansas Go

iff once had.
ii. Examples:
a. Change in law
1. For imminent injuries, now moot.
2. For actual injuries, still standing.
b. Promise of cessation of conduct
1. Does not make standing moot, unless defendant signs a consent decree
a. Also signed by Judge; penalty would be contempt of court.
c. “Capable of repetition yet evading review”
1. The case is not now moot.
2. Abortion cases; case could never occur within pregnancy period.
e. Ripeness
i. Seeks to prevent premature adjudication; insufficiently developed disputes.
a. Too remote or speculative.
b. Lujan – Intention for wrongful conduct does not give a ripe claim. Fear of wrongful action is not ripe.
f. Political Questions
i. Where a branch has been given discretion, the court cannot review.
a. Constitutional commitment of the issue to a coordinate political department.
b. Impossible judicial discovery or standards to go by. (Can’t create standards.)
c. There are times when there should be a unilateral voice.
d. Potential embarrassment from differing opinions by different branches.
ii. Baker v. Carr
a. Facts – TN voters said state’s refusal to redistrict violated their republican right of equal voting power. Defendant said this fell under the ‘Guarantee clause,’ which left the creation of state governments to Congress, making it a non-justiciable political question
b. First, not a “political question” merely because it involves politics.
c. This involves the 14th Amendment, which is within the purview of Congress and the Supreme Court.
1. The creation of state government’s is still within Congress alone, but the rights of citizens is justiciable for the court.
iii. Nixon v. US
a. Facts – A judge was found guilty of lying to a grand jury. The senate impeached him, but not by a 2/3 vote.
b. The senate has the sole power of impeachment, according to Art. I.
1. This gives them discretion. This case is non-justiciable.
c. Souter, in concurrence, asked whether this meant the senate could do it by a coin flip. (Apparently so.)

B. Article I and the Legislative Power of the U.S. Congress

1. Enacting “Necessary and Proper” Laws
a. McCulloch v. Maryland
i. Facts – US established the Second Bank, with a branch in Baltimore. MD wanted to tax the bank’s notes. Mc refused to pay the penalty for not paying the tax.
ii. Can the US create a bank? (First issue)
a. Yes, despite nothing explicitly saying so in the Constitution.
1. The bill that created it was passed by the first congress (mostly, the same people who drafted the const.) without question of constitutionality.
a. Strong evidence that it’s constitutional. Look to the drafters.