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Constitutional Law I
University of North Carolina School of Law
Muller, Eric L.

Constitutional Law Outline
 
1)      Supreme Court
a)      Rule of 4: 4 of the 9 Justices have to agree to grant certiorari
b)      Judicial Review
i)        Unique to American constitutional law in that courts have the final word on what the Constitution means
ii)       No judicial review in UK
c)      Government Structure
i)        Federalism
(1)   Balance of governing power between Federal and state government
ii)       Separation of powers
d)      Individual Rights:
i)        Equal protection
ii)       Extent to which constitution protects or does not protect
(1)   Economic freedom
(2)   Personal/privacy
2)    Sources of Constitutional Law Meaning
a)      Text
b)      Enumeration
c)      Intent
d)      Structure
e)      Evolving standards
f)        Common law method
g)      Precedent
3)    JUDICIAL REVIEW
a)      Marbury v. Madison
M v. M. declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respect by this Court and the Country as a permanent and indispensable feature of our Constitutional System. Cooper v. Aaron (1958)
i)        Countermajoritarian problem
ii)       1803 case, places Supreme Court at the center of interpreting the Constitution
iii)     Judicial review: the final power of the US Supreme Court to give legally binding meaning to the provisions of the US Constitution and to invalidate actions of the other branches of the federal government and the states when they conflict with the Constitution as interpreted by the Court.
iv)     Article 3: no mention of judicial review, power to interpret the Constitution arises from an act of interpretation
v)      Madison is leaving office, appointing loyal Federalist judges. One, William Marbury, hasn’t received his commission by the time Madison leaves office, Secretary of State James Madison directed by Jefferson not to deliver. Marbury sues Sec. Of State in its original jurisdiction for a writ of mandamus. Under Section 13 of Judiciary Act of 1789. Why sue in Supreme Court? John Marshall (chief justice) was a Federalist like Marbury.
vi)     Marbury does not get commission, Marbury was entitled to his commission and was entitled to a remedy, but mandamus was not the proper remedy as an original procedding in Supreme Court to the extend that Congre

ading of Article III
x)      5 Arguments that the Constitution gives the final word:
(1)   written constitution: emphasis as distinguished from parliamentary democracy
(a)    Muller’s response: means nothing
(2)   judicial role: judges out to have the final say
(a)    Muller’s response: judges interpret laws, doing something new, establishing pre-eminence
(3)   supremacy clause in Article VI
(a)    all agree the Constitution is supreme, who says Judiciary should get final say could be Congress or the Prez
(4)   Oath of office: sworn to fidelity of the Constitution
(a)    goofy: Congress takes the same oath
(5)   “arising under” Article III, judicial power extends to all cases arising under the Constitution
MAYBE: Constitutions text confers on us the power, obligation to say what the document means in order to decide case that arise under the Constitution, BUT does this give them the power to invalidate CONGRESSIONAL legislation