Constitutional Law – Claus
Spring 2013
1. Constitution Compared with Articles of Confederation
Differences Between Articles of Confederation and Constitution
– Legislature
o Congress vs. House of Reps and Senate
– Executive Branch
o None vs. President
– Term of Legislative Office
o 1 year vs. 2 years for Reps, 6 for Senators
– Members of Congress
o 2 to 7 per state vs. Two Senators and Reps according to population
– Voting in Congress
o One vote per state vs. one vote per Rep or Senator
– Appointment of Members
o Approved by state legislatures vs. Elected by popular vote
– Amendments
o No alteration unless every state agrees vs. 2/3 house and 2/3 congress
– Implementation of Laws
o States themselves vs. Congress
– Adjudication of Dispute Between States
o Congress vs. Supreme Court
– Congressional Pay
o Paid by States vs. Paid by the Fed. Gov.
– Bill of Rights
o Constitution
Articles of Confederation
– Very weak national government, strong commitment that state governments retain sovereignty
– No federal judiciary and no executive
– Congress had limited, noncontroversial powers
– Problem
o States adopted laws that discriminated against other states, congress powerless to stop
o No way to ensure that states would comply with laws adopted by Congress
U.S. Constitution
– Best and clearest expression of the will of the people
– Empowers and limits government
– Protection of Individual Liberties à In Bill of Rights
– Difficult to alter
– Executive Branch
o Enforces Law
– Congress
o Create / Make /Enact Law
o Power to tax states
– Judiciary
o Interpret and regulate the law and the Constitution
§ Judicial Review – Can deem laws made unconstitutional
o Settle disputes between states
2. Judicial Review / Interpreting the Constitution
Article III – The Federal Judiciary
– Creates federal judicial system
– The federal judicial power can hear
o Cases arising under Constitution or under Federal Statues
o Cases of admiralty
§ Ships / Sea
o Cases between 2 or more states
o Cases between citizens of different states
o Cases between a state or its citizens and a foreign country or foreign citizen.
Judicial Review
– Power to review the Constitutionality of Federal or State laws or Executive Actions
o Article III never expressly grants Federal Courts this power
– Two limits to the federal courts jurisdictions
o Justiciability doctrines
o Limited Jurisdiction – Can only hear a matter when there is both Constitutional and statutory authorization
– Legislature enacts law / judiciary interprets law
Marbury v. Madison
– Marbury appointed Justice of Peace, Madison told to without Marbury’s commission à Marbury brought writ of mandamus directly to Supreme Court under Judiciary Act
– Is the Supreme Court Empowered to Review Acts of Congress and Void Those That Are Inconsistent With the Constitution?
– The Court held that the Judiciary Act was unconstitutional
o Court concluded that Article III enumerated its original jurisdiction and that Congress could not enlarge it.
– Importance
o Established the power of the judiciary to review the Constitutionality of acts of Congress and Executive Actions
§ Last word on what Congress can do
o Marshall
§ The Constitution imposes limits on government powers and these limits are meaningless unless subject to judicial enforcement
§ Was able to establish judicial review while declaring unconstitutional a statue that he read as expanding the courts power
o No Judicial Review
§ System where only check on the legislature would be trying to get them out of office
§ Could create tyranny of the majority
§ A possibility that people being voted in would change the Constitution and change the entire system
o Why Did Marshal Defer to Constitution
§ General matter of laws of Constitution takes precedence over statutes
· “Best and highest expression of the people”
§ Legitimizes the original structure of system
o Too Much Power to Courts
§ In any system someone will have the last word on power
§ Government of laws and not of men
o Congress can enact legislation that the judicial branch doesn’t get to hear
§ Why don’t they do this all the time?
· Congress’s power is strongest when the Court’s are validating their authority
o States more willing to follow
Hamilton – Federalist No. 78
– Suggests support for judicial review
– Judiciary had the least amount of power of the three, and had “merely judgment”
o Judiciary has enormous power over people that aren’t parties to the dispute. They are adding to and interpreting the words of the Constitution and set precedent for all other cases on the topic will be judged
o Conceptually doing the same thing as law-making
Review of State Court Decisions
– Cooper v. Aaron
– “The Federal judiciary is supreme in the exposition of the law of the Constitution”
–
ll not intrude into areas committed to the other branches of Government
o Judicial Economy
§ Permits the judiciary to expend its political capital only when necessary
o Improve Judicial Decision Making
§ Provides the court with concrete controversies best suited for judicial resolution
o Promotes Fairness
§ Prevent the Federal courts from adjudicating the rights of those who are not parties to a lawsuit
Constutionally & Prudent Requirements – Self-Limitation
– Constitutional
o Nine categories from Article III, Section 2 à Substantial Constitutional Limit on Federal Judicial Power
– Prudential
o Not derived from the Constitution, but from “prudent judicial administration”
o Court has decided that in certain instances, wise policy prevents judicial review
Advisory Opinions
– Federal Courts may not issue opinions based on abstract or hypothetical questions
o Constitution limits the courts to “cases” and “controversies”
– Reasoning
o Disputes are live – not hypothetical situation
o Resources conserved, opinions might be requested in many instances
o Keeps courts out of legislation process
– Counter-Argument
o Because the courts are essentially lawmaking, it is functionally the same as making an advisory opinion
o Doesn’t really restrict, judges hear the cases they are interested in and advise as to the law
Standing
– Determination of whether a specific person is the proper party to bring a matter to the Court for adjudication
– What counts as a rule for a live dispute, who can bring a case
– Elements
o Threatened / Personal Injury
o Causal Connection between thing your challenging and concrete personal injuries
o Likely to be redressed by decision
§ Prevent from happening or fix it
o Can’t be a third party to the case, has to be your interest
§ Amicus Curiae expectation
o No general grievances
§ Has to be specific, not just something that effects a lot of people
§ Normal remedy for unconstitutional behavior is to vote
