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Constitutional Law I
University of South Carolina School of Law
Brown, Josie F.

Constitutional Law Brown Spring 2017

Federal Judicial Power

Challenges of Interpreting the Constitution: 2nd Amendment

Limits on Interpretation:

Originalism – Leave it alone. If CXN is silent, let legislature rule. Solely evolve by amendment. If people want a change, then use legislature.

Non-Originalism – Important for CXN to evolve by amendment and by interpretation. Not remain static. Court should go beyond and discover what is beyond the 4 corners of the document.

D.C v. Heller, 2008 p. 13: infringing upon one’s right to possess and carry firearm

RULE = Originalism vs. Non-Originalism
How 2nd amendment is read. Individual rights vs. Collective rights.
Prefatory clause (announces purpose) and operative clause (operation)
Key = Look at how the clauses operate together

Scalia (Majority) – 2A is a pre-existing right of self-defense; personal dignity
Stevens (Dissent) – 4 Flaws (1) Gov’t prerogatives upset (2) Creates many future interpretation challenges (3) Judiciary too much power in firearm policy making (4) Framers meant militia
Breyer (Dissent) – Evaluates benefits and burdens of Gun law; says it is justified and could withstand SS even.

Judicial Review and Constitutional Fidelity

Marbury v. Madison p. 2 (Sec’y of Labor does not hand appointment to judge to be)

RULE = The Supreme Court has the power, implied from Article VI, Sect 2 of the CXN, to review acts of Congress and if they are found repugnant to the CXN, to declare them void.
Key = CXN is supreme law of the land à It is emphatically the province and duty of the judicial department to say what the law is.

***Authority to review legislative & executive acts

Must uphold the CXN as a check on the legislature.

Marbury v. Madison:

Marshall is former secretary of state under Pres. John Adams
Madison is the new secretary of state under Pres. Thomas Jefferson
Marbury sought a writ of mandamus to force the delivery of a commission appointing him as justice of peace
Marshall is chief justice of the U.S. Supreme Court


Does Marshall have a right to issue a writ of mandamus?
If he has a right, and that right has been violated, do the laws of this country give him a remedy?
If they give him a remedy, is it a writ of mandamus?

If someone has a right, there must be a remedy and place to enforce that right.

In sum, section 13 gave the United States Supreme Court jurisdiction in lawsuits involving writs of mandamus (an order from a court to an inferior govt official ordering them to fulfill their duties) involving “persons holding office under the authority of the United States” such as Secretary of State James Madison, as the defendant.

Article III: the constitution created the Supreme Court; Congress creates inferior courts

Federal judges are subject to impeachment only in resignation
Judicial power: determination of

Existence of a right
Meaning of law
Scope of judicial responsibility (authority within its defined constitutional domain)

The Constitution is seen as paramount law; if a statute conflicts with the constitution, the constitution prevails
*examining Article III about judicial practice; take special account of the nature of their own power

Federal 78

What is the nature of executive power?

Discretionary acts- appointments, power to veto, power to pardon, control over foreign affairs
Duty- Congress cannot designate roles to president; cannot legislate

How can this superior law survive when Congress can change/disregard it?

Supremacy clause (Article 6)
Judicial review preserves the initiative of limited government

Ways that Hamilton foresees improbability of abuse of judicial power:

Judiciary is the least dangerous branch because they are inevitably depending on the executive to help reinforce and legislature to fund
Restrained from becoming a super power
Cannot misuse/overuse authority because they will lose respect and legitimacy
Use power carefully; don’t want to appear to be undoing state legislatures

Constitutional Redemption (saving)? Equal Protection Clause

Classifications Based on Race and National Origin

Dred Scott v. Sanford 1857 p. 750- slave goes into free state and is ordered back

RULE = Since slaves are not “citizens” in the sense of the word used in the CXN, Negroes who were slaves in this country, or who are descendants of slaves, cannot bring suit in federal court
Former slave cannot be a “citizen”
Key = Flag in the air of Justice saying CXN must be used with “same words” and “same meaning” as it was originally written

Overruled by 14th Amendment

Consider Scott’s recognition as a free man and constitutionality about validity of end of slavery

Constitutionality of the Missouri Compromise

Post-Civil War amendments-

13th: prohibits slavery and involuntary servitude
14th Section 1: overrules D. Scott decision and declares all born or naturalized in the U.S. as citizens and no state shall deprive any citizen of privileges or immunities of citizenship right to life, liberty, and property

Applying the Bill of Rights to the States p. 524

Slaughterhouse Cases:

Slaughterhouse v. Crescent City New Orleans, 1872 p. 528 (LA legislature creates a monopoly – butchers claim this monopoly was infringement on rights to practice their trade)

Issue: Do the Thirteenth and Fourteenth Amendments of the Constitution make the Bill of Rights applicable to the states?
No. The amendments were designed to protect freed slaves only
Dissent: privilege or immunities clause; different rights as a citizen of state or of U.S.?

14th amendment gives blacks the same rights as whites; protects blacks in federal govt here they may not be protected in state law

RULE = 14th amendment protects the privileges and immunities of national, NOT STATE, citizenship, and neither the Equal Protection, Due Process, nor Privileges and Immunities Clauses of that amendment may be used to interfere with State control of the privileges and immunities of state citizenship.

Bill of Rights cannot be enforced upon the states
Key = 14th Amendment does NOT apply the bill of rights to the states

Applying the Bill of Rights and Constitution to private conduct;

Civil Rights Cases

Separation of Races: How much equality was the 14th amendment seeking to portray?

Civil Rights Act of 1875- prohibited racial discrimination in public conveyances, theater, places of public amusement/enjoyment; represents the entitlement of all persons

US v. Stanley(1883) p. 548 (Hotel denies privilege to use by a black person)

RULE = Civil rights guaranteed by the CXN cannot be impaired by the wrongful acts of individuals unless such acts are sanctioned or authorized by the state.
The CXN’s protection of individual liberties and requirement for equal protections applies only to the gov’t.

Private conduct doesn’t have to comply.

Key = Individual invasion of individual rights

virtually any law may have legitimate purpose

Identify the purpose
Actual or conceivable- any conceivable purpose is usually sufficient
*Over inclusive/under inclusive normally not a problem with RBT
Does not protect completely arbitrary or irrational classifications — RB with a bite can even strike down provisions that might appear to pass the test on first glance

Over-inclusive law: applies to those that don’t need to be included

Evicting all Japanese from the west coast

Under-inclusive: does not apply to individuals who are similar to those it does apply to

Japanese were removed for being potentially harmful, but other people may have fit this description as well

Less tolerance for “over” and “under” if heightened scrutiny applies b/c of a protected class or a fundamental right (See Korematsu)
Under/over inclusive does not always mean that the law is invalidated

*** It is unfair to penalize a person for characteristics that the person did not choose and that the individual cannot change

Classification based on Race and National Origin

How to determine classification:

Korematsu v. US p. 756 (WWII all Japs internment on West Coast)

RULE = Apprehension by the proper military authorities of the gravest imminent danger to the public safety can justify the curtailment of the civil rights of a single racial group

Times of war call for hardship and thus intense measures were necessary

Public necessity makes it OK, racial antagonism NOT OK.
Key = Only case of its kind where race discrimination wins
Murphy Dissent – Judicial Test for Gov’t. Immediate, imminent, impending

Grossly under inclusive – what about Germans!
Military said they couldn’t check everyone individually – But UK did!
Exclusion goes over the rim of constitutional power and falls into racism

No benefits, hearing, or facts that FBI hadn’t already had the sabotage/espionage issue under control

Later the same day that Korematsu was decided, court held that the detention of Japanese was unwarranted; court never declared the evacuation unconstitutional

RR Retirement Bd v. Fritz (1980) p. 731 (Retirement Bd creates classes to avoid BK) Rational Basis Test

RULE = Social and economic legislation enacted by Congress will be upheld under the equal protection clause if it is rationally related to a permissible government objective.
Reasonable relationship – Law is wrong if (1) display of arbitrary power (2) not an exercise of judgment.
Key = Congress is given deference with benefits when linedrawing is inevitable.
KEY Also = ANY conceivable legitimate purpose will suffice, even if not the actual motivator of the law
Brennan Dissent: No post hoc (after the event) justifications. Legislature should explicitly articulate purpose