Constitutional Law I
Interpretation
Text, structure, intent, moral args, prudential args, historical text
Why do we follow?
Taught to follow it
Complicated process to adopt it likely leads to good results
Like the provisions
I. Reasons for a constitution
a. Stability
b. Legitimacy
i. fundamental rules
c. Restraint
i. protect future alterations to maintain core principles
d. Preserve Status Quo
i. Prevent disenfranchisement
II. Types of Constitution
a. Written
i. Congress cannot change by statute
b. Unwritten
i. Conventions formed over time
ii. Can be changed at any time by passing statute
III. Ways to Change Constitution
a. Article V: Amend the Const.
i. 2/3 houses in Congress approve
1. ¾ legislatures or popular conventions
2. Only congress has proposed amendments so far
ii. 2/3 States call for convention
1. Popular ratification like above
2. Protect against congress blocking amendments that limit their power
iii. There are 27 amendments
1. Const does not mention a time restraint to ratify an amendment
2. 27th pass 200 years later
b. Reinterpretation – Living Constitution
c. Scrap it
i. Articles of Confederation
1. Under the Articles of Confederation
a. Continental Congress had all three powers
b. Congress made and executed ordinances
c. Congress – exclusive power to declare war and peace, resolve disputes between states, regulate all coinage
d. No power to tax
e. No power to regulate commerce
2. 9 of 13 to adopt new const. (this violated unanimity req. of articles)
3. State legislatures are supposed to ratify changes, but this was done by Article 7: Delegates from states representing people instead
4. Decided the Articles were not law anymore and made new rules
a. States were too powerful and would not have ratified
IV. Reasons to Follow the Const
a. Fear of enforcement
V. Are non ratifying states bound?
a. No, but ratifying states are bound to all amendments
VI. Interpreting the Constitution
a. Intent
i. Framer’s intent – writers
1. Proceeded in secrecy
a. Don’t want proposals to color people’s views
b. Notes were taken and kept secret, perhaps they did not want intent followed
ii. Ratifier’s intent – adopters
1. Made it law
b. The text itself
i. The structure
1. Ex: Article I section 9 – presumes only congress can pass appropriations before money can be taken out of the treasury
c. Look at interpretations of similar provisions of the time
d. Historical practice – Previous interpretations in practice
e. What is required in the modern day (prudential considerations)
f. Judicial doctrine
g. Moral Considerations – based on a particular theory
VII. Enforcement of Constitution
a. Judiciary can reject statutes
i. Const. does not give them the right to have their opinions executed, but society has excepted the practice
ii. Judicial Supremacy
b. President has a sort of legislative review through veto power
i. Often President will sign a bill containing parts he calls unconstitutional, choosing to ignore them
1. Problem: A future president may enforce the law
ii. Article II: Take Care Clause – President must make sure all bills he signed are enforced
iii. U.S.C. or Statutes At Large: Compilations of laws, U.S.C is up to date and only contains up to date law
VIII. Marbury v. Madison
a. Facts:
i. When Adams was defeated, Federalist congress established new judgeships and Adams appointed
ii. Federalists v. Republicans, midnight appointees made by John Adams, Republicans thought it was just a way to give lifetime appointments to Federalists
iii. Madison refuses to deliver commissions
1. commis
ii. Original jurisdiction only in state v. state or dealing with dignitaries
iii. Judicial Review Arguments
1. Article VI, § 3 requires an oath, but no exact terminology to uphold the constitution and the federal and state law.
a. Contention: Everyone takes the same oath
2. Written Nature of constitution
a. This constitution is written unlike the English constitution where it changes over time. So it must be upheld.
b. Contention: Not obvious that this job belongs to the judiciary, other countries do not have judicial review
3. Judicial power extends to cases arising under the constitution.
a. Doesn’t relate to the power to regulate congress and executive
b. President and states can do unconstitutional acts not subject to review
c. Contention: Statement still has meaning even if we don’t interpret it the way this court did
4. Congress needs this as a check
a. Contention: Not obvious that this has to be the supreme court
5. Role of the Courts
6. Supremacy Clause – laws “made in pursuance therof”
a. One possibility suggests that conflicting law is not in pursuance thereof of constitution.
b. Article VI, § 2 “Made in pursuance thereof” could be to nullify past law (articles), but treaties are carried over. Meaning only law under constitution should be carried over
7. Treason Clause – This is something that the courts have to enforce in the constitution so how could it not mean they need to enforce other parts
d. Contention:
i. Other way to read the Act is that writs of mandamus can be issued when the court has original jurisdiction, there is no expansion of jurisdiction
e. Explanation:
Marshall interpreted it this way to establish the right to declare legislature unconstitutional
