Constitutional Law I Outline

CONSTITUTIONAL LAW
Prof Robertson
Fall 2012
 
HISTORY
I.     Articles of Confederation
A.     No power to tax, no federal courts, weak federal government
B.     So, they created a new governing document – The Constitution
II.     Bill of Rights
A.     The anti-federalists immediately pushed for amendments
B.     Madison’s concern was that by listing all the things the government could not do, people would think the government could do everything not listed…he may have been right
C.     He inserted Amendment 9
III.     Judiciary Act of 1789
A.     Art. III of Constitution established Supreme court but gave Congress job of making others – compromise. judicial Act 1789 created Circuit and District Courts
B.     Jud Act 1789 also created Diversity Jurisdiction. There was no Federal Question jurisdiction until late 19th c.
IV.     Jefferson v. Adams
A.     Adams was about to leave office with Jefferson coming in. House falls to Jefferson’s party and Senate to come. The Federalist party was on its way out
B.     In 1801, just before leaving office, Adams pushed through a new judicial Act abolishing the riding circuit court and creating independent circuit courts. Adams filled these courts with his Federalist judges.
C.     Appoints John Marshall as Supreme court CJ.
D.     When Jefferson got into office, he repealed the judicial Act of 1801. This is a problem, however, because federal judges are appointed for life and he can’t simply fire them. It’s unconstitutional.
V.     John Marshall
A.     Student at William & Mary for 6 weeks where he was not a serious student. He went to study under a lawyer and went into politics, where he became one of Washington’s guys.
B.     He became CJ of a fractured court He said they had to speak as one and would hold more water with one reason.
C.     Marbury v. Madison gives us the idea of Judicial review, court can review an act of another part of government and judge its constitutionality. First and last time Marshall uses judicial review against Congress. He was scared after the impeachment of Chase.
D.     He did use the Contracts clause in Art I §10 to invalidate many states’ choices.
E.     McCulloch v Maryland → used Art I §8 Necessary and Proper to allow a national bank. Federalism opinion.
F.     Gibbons v Ogden → Supremacy clause
G.     Charles River Bridge → Marshall would have given opinion but he dies.
H.     Dies in 1835
VI.     Taney Court (1836-1864)
A.     He buried Contracts clause in Charles River Bridge, opposite from what Marshall would have done.
B.     His greatest contribution was economic pragmatism → monopolies claims and contracts clause
C.     Taney is cursed by the Dred Scott decision
1.     Taney declares Missouri Compromise unconstitutional and gives states the rights. Slaves are property, allows owners to take slaves anywhere, even to states where slavery was illegal. Original intent decision.
2.     Lincoln ran for president against the Dred Scott decision with a Supreme Court hostile to his constitutional interpretation.
3.     Half the country bails
D.     Lincoln faced Constitutional and military issues – How do you get things done when you have a Supreme court contrary to your belief?
E.     Taney was not scared of Lincoln. This is one of three instances when a President battles the Supreme Court. The others are Jefferson v. Marshall and Roosevelt v. everyone
F.     Lincoln’s Constitutional Issues
1.     Maryland might secede from the Union so he has their state delegates arrested
a.     They file a writ of habeas corpus (you have the body, explain why) and Taney is sympathetic.
b.     Lincoln suspends habeas corpus under Art I § 9.2. Even though Art I is Congress’ rights, Lincoln doesn’t care. He reaches into Art I and takes the power.
c.     Taney gets the case riding circuit and orders Merryman released, saying they would have to go through normal judicial process
d.     Lincoln doesn’t care
e.     Merryman was indicted for treason but acquitted.
f.     President’s tend to sacrifice constitutionality for national safety → see PATRIOT Act
2.     Emancipation Proclamation
a.     Art II § 2.1 → “Commander in Chief” gives President quasi-legislative authority over rebel territory
b.     Abolished slavery in areas behind Confederate lines
VII.     Taney dies in 1864
A.     Under next 3 courts → Lochner (liberty of contract), EC Knight (early commerce clause case), fundamental rights cases. All of it gets erased under 1937 term when Roosevelt threatens to pack the court and Roberts bails on 4 horsemen.
B.     Salmon Chase 64-73
C.     Morrison Waite 74-88
D.     Melville Fuller 88-1910
VIII.     Reconstruction amendments after Civil War
A.     13th → end of slavery and Congressional power to enforce by appropriate legislation → addition to Art I §8
B.     14th → erases Dred Scott; citizenship and Equal Protection clause → addition to Art I §8
C.     15th → Race, servitude voting rights
D.     These amendments were big in terms of human rights
IX.     Uses of these amendments
A.     The Slaughterhouse cases: narrowed the scope of the 14th
B.     Women’s groups try to use 14th to gain right to practice law and vote
1.     Ct ruled it wasn’t about gender, only race
C.     Plessy v. Ferguson: Plessy was 7/8 white in a railcar. court says Equal Protection clause doesn’t apply if “separate but equal”
X.     Constitutional interpretation today v. then
A.     The words are so big, so ambiguous as to allow for interpretation.
B.     Thi