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Constitutional Law I
University of South Carolina School of Law
Crocker, Thomas P.

Con Law Crocker Spring 14


Preamble: We the people of the United States, in order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Art. 1: All of the legislative powers are reserved to Congress which consist of a H.O.R. and a Senate. Section 8, Clause 3 gives Congress the power to regulate Commerce with foreign Nations, and among the several states, and with Indian tribes [Commerce Clause].

Section 10, Clause 1 denies states the powers to create any Law impairing the obligation of Contracts [Contracts Clause].

Art. 2: Executive power shall be vested in the President.

Art. 3: The judiciary power shall be vested in one Supreme Court and in any courts that Congress may want to create, power to create federal courts.

Art. 4: Full Faith and Credit Clause. Section 2, Clause 2 the Privileges & Immunities Clause, the citizen of each state shall be entitled to all privileges and immunities of citizens in the several states.

Art. 5: How to enact an amendment to the Constitution.

Art. 6: Supremacy Clause, all federal law is the supreme law of the land.

Art. 7: States ratifications makes this the Constitution.

Bill of Rights

Am. 1: Freedom of Speech and religion

Am. 2: Right to bear arms

Am. 3: No quartering of soldiers

Am. 4: No unreasonable searches and seizures of property without a warrant but upon probable cause

Am. 5: Right to a grand jury, and no taking of life, liberty, or property w/out due process of law

Am. 6: Right to speedy trial, right to counsel

Am. 7: Civil cases also have a right by jury, no double jeopardy

Am. 8: No excessive bail or cruel and unusual punishment imposed

Am. 9: Just b/c a right is not enumerated doesn’t mean it does not exist

Am. 10: Federalism (a tautology according to Crocker) powers not given to Federal gov’t are reserved for states.

Am. 11: A citizen of one state cannot sue another state.

Am. 12: Electoral College

Reconstruction Amendments

Am. 13: No slavery or involuntary servitude except as a punishment. Congress’ §2 power to enforce

Am. 14: No State shall deprive of life, liberty, or property without Due Process. Equal Protection of the laws. Congress’ §5 power to enforce.

Am. 15: Citizens rights to vote, can’t be denied by race, color, or servitude. Congress’ §2 power to enforce

Am. 16: Congress’ power to collect taxes.

Am. 17: Senate is to be two Senators from each state to be voted on by the people, not the state legislatures.

Am. 18: No Alcohol!

Am. 19: Right to vote can’t be denied on account of sex.

Am. 20: Terms of the President and legislatures. Congress must meet once a year.

Am. 21: Alcohol is back! 18th amendment repealed.

Am. 22: Can only be president twice

Am. 23: District of Columbia gets to vote for president and gets representatives.

Am. 24: Right to vote even if you haven’t paid taxes.

Am. 25: Succession of who becomes president if the president leaves office or dies.

Am. 26: Everyone can vote if they’re over 18.

Am. 27: Senators and Representatives can’t raise their salaries during a term, but the raises take effect next term.

Judicial Review

1) Civic Republicanism: the citizens could be self-governing with self-control via a constitution to be deterred from acting out of passions

a) Election of 1800à Jefferson/Adams tie, so it goes to HOR who vote for Jefferson

b) Republicans repeal Judiciary Act of 1801 (uncreating the judgeships created by the act)

c) Question: Can the SCOTUS force Madison to give Marbury his commission?

2) Marbury v. Madison

a) Created concept of judicial review

i) “It is emphatically the province and duty of the judicial department to say what the law is…”

ii) The Constitution is supreme and the judicial branch has the responsibility of interpreting the Constitution.


Does the applicant have a right to the commission that he demands?

Yes, because the president had signed the commission and the commission is initially created by CONGRESS – The Judiciary Act of 1789 – which authorized the existence of these commissions and authorized the President to appoint commissioners

The President had appointed the commission to Marbury – it was signed by the President and sealed

· This means he had a “vested right” in this commission, despite the fact that it was not delivered -Denying him this commission is a violation of this right

He has the right, and the right has been violated, do the laws of this country afford him a remedy?

§ Depends on the nature of the executive (president’s) function being performed

§ Must determine the “nature” of the executive act that has supposedly violated the rights

· Two types of executive acts

Discretionary – the court cannot review the president’s discretionary acts =NO REMEDY

· The president has discretion if:

Position is not an “Article 3” position

Does not have a term that is FIXED by law

Legal Duties/Rights – not discretionary; if there a vested LEGAL RIGHT creating a duty then the court can review = REMEDY

· The President is given certain political powers by the Constitution which he may use at his discretion. To aid him in his duties, he is authorized to appoint certain officers to carry out his orders. Their acts as officers are his acts and are never subject to examination by the courts.

· However, where these officers are given by law specific duties on which individual rights depend, any individual injured by breach of such duty may resort to his country’s laws for a remedy. Here, Marbury (P) had a right to the commission, and Madison’s (D) refusal to deliver it violated that right.

§ Justice of the Peace is not a position of presidential discretion because it has a 5 year fixed term = SC can have control of it and order the commission be granted

· RULE: If the president is NOT acting under his own DISCRETION, then the Supreme Court has the authority to tell the president what to do under appropriate circumstances

· The SC establishes that it does have to power to tell the president what to do in this case but it does not use that power and order the commission

· In doing so, they establish a precedent and rule that the SC has authority over the president but then avoids conflict by not doing it

Is the “Writ of Mandamus” from the Supreme Court the appropriate Remedy?

§ The Judiciary Act of 1789 established and authorized United States courts to issue writs of mandamus to courts or persons holding office under U.S. authority – thus if the Supreme Court is powerless to issue the writ of mandamus to him, it must be because the ACT is unconstitutional.

· Article III, Section 2 of the Constitution provides that the Supreme Court shall have original jurisdiction in “all cases affecting ambassadors, other public ministers and consuls, and where

expand original jurisdiction but Marshall said this was unconstitutional, congress can only expand appellate jurisdiction of the Sup. Court.

i) The Constitution is a framework Congress has to work within.

ii) The Sup. Court is final and supreme.

iii) Marbury lost b/c the SC doesn’t have the power to issue a writ of mandamus

5) Stuart v. Laird

a) Congress has the authority to establish lower courts as they see fit.

i) Note: Supreme Court exhibited prudence in its decision because it did not want to disturb a historical practice that ensured the efficient process of federal gov’t.

· Two important constitutional Issues are raised by CONGRESS’ Repeal Act of 1802

The legitimacy of eliminating judgeships, as judges are presumably guaranteed their seats for a life tenure as long as they exhibit good behavior under ARTICLE III of the constitution

· This issue was not addressed directly

The constitutionality of requiring SUPREME COURT justices to “ride circuit” and serve auxiliary duty as members of “inferior trial courts”

· The court fails to address the constitutionality of taking away the circuit judges life positions

· Instead its skirts that issue by only addressing whether or not it was constitutional to make members of the Supreme Court undertake other duties, in this case, ride circuit and sit on those courts as trial judges


§ It was constitutional to make the Supreme Court justices ride circuit

§ The court based its decision on TRADITION AND PRACTICE rather than a constitutional basis or textual reading

§ The other basis was that there was NO CLEAR PROHIBITION of such requirements in the Constitution

· Court uses TRADITION and PRACTICE to uphold and CONGRESSIONAL STATUTE where there was no clear prohibition of such legislation in the Constitution

· Can court use its own understand of “Natural Law”?

· Natural Law – a universal law that is superior to all man-made laws; law that exists independent of the Government enacting it

§ The three “absolute” rights of individuals were:


· Enjoyment of life, limbs, body, health, and reputation


· The power of locomotion or moving one’s person to any place without imprisonment or restraint, unless of course by due course of law

3. The absolute right of PROPERTY

· The free use, enjoyment and disposal of all property without any control or dimunition save only by the laws of the land

· This was considered the most fundamental

· Vested Right – Once a right was vested, it belonged to that person like a property interest and could NOT be divested by the government

§ A statute that divested a vested right was considered unconstitutional based not on the constitution but on natural rights and the nature of the social compact