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

Constitutional Law I
Spring 2005

1) The Federal Judicial Power
a) The Constitution:
i) Article I: The Legislature
(1) Qualifications
(2) Election rules
(3) Substantive powers of Congress
(4) Restrictions on Congress
(5) Restrictions on states
(6) Note à The veto power is a legislative power because it deals with what will become law.
(7) Framers more concerned with legislative branch because their history is with governments where the legislative branch dominates.
ii) Article II: The Executive Branch
(1) How the executive branch is supposed to do things is not listed in the constitution.
(2) Implies the existence of executive departments, but does not say what they’ll be.
iii) Article III: The Judicial Branch
(1) Make-up:
(a) Least talked about of the three branches in the Constitution.
(b) No qualifications for officers of the judicial branch.
(c) No terms for officers of the judicial branch (appointed for life).
(2) Judicial power extends to all cases in law and equity, arising under the constitution (“and nothing else” is implied).
(3) Framers relying on using the accepted practices of the judicial branch already in place in the states. The limitation to cases (#2) is understood because that was the nature of judicial power at the time of its writing.
(4) § 2, line 3: Means treaties made before this constitution still count.
(5) Two classes of federal jurisdiction (Judicial Power):
(a) Federal Question – Is it a federal question regarding laws, Constitution, treaties, etc?
(b) Diversity – A case where parties are of diverse citizenship (different states).
(6) The Supreme Court:
(a) Original Jurisdiction – Officials of foreign entities involved in case; cases where states are suing states.
(b) Appellate Jurisdiction – Everything else (if Congress says so); if Congress doesn’t give it, courts don’t have it.
(7) § 2, clause 3: Vicinage power
(a) Right to have jury in state where crime was alleged to occur.
(8) § 3, clause 1: Treason defined
(a) Levying war against U.S. by U.S. citizen; providing aid and comfort to the enemy.
iv) What is the purpose of a Constitution?
(1) Stability, cohesiveness between the states. Creates an idea of a different national identity different from the state identity. It provides the law which helps us determine other laws. “Super guide” on how the state should perform, guidance and direction.
(2) Reflection a certain notion against human nature. Provides checks against our weakness as individuals and when we act together. Creates a higher self. In a constitutional republic, the peoples will is embodied in the constitution. Creates a higher ideal that we seek to follow, and will remind us when we stray away.
b) The Authority for Judicial Review:
i) Judicial review involves the power of courts to review legislation to determine whether it is consistent with the Constitution. A fundamental question in constitutional law concerns why courts are authorized to exercise this power.
ii) Principle of Judicial Review:
(1) Court can declare actions of executive to be within or not within the law (statute or Constitution).
(2) Court can declare actions of Congress t

y instituted; it does not create the cause. To issue a write of mandamus ordering an executive officer to deliver a paper is to create the original action for that paper. This would be an unconstitutional exercise of original jurisdiction beyond the power of the court. It is the province and duty of the judicial department to say what the law is. And any law, including acts of the legislature, which is repugnant to the Constitution is void.
(a) Background: Set after the election of Jefferson, Adams appoints judges at last minute, namely Marbury. Appointments never get delivered. Jefferson just orders them not to get delivered. Marbury argues that he was robbed of his commission.
(i) Writ of mandamus – when you go to court and ask a governmental officer to do something
1. Battle tactic – sacrifices the little guy, Marshall knows that Jefferson has gotten rid of Marbury, but Marshall establishes judicial review which gives the Sup.Ct. great power à level playing field with other branches of government.
2. When the Sup.Ct. was first created, no one was sure what it was going to do. Marshall elevates the Sup.Ct. with the executive and the legislative branches.
(b) How Marshall accomplishes this result:
(i) Marshall had other options à K dispute, etc.