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

Constitutional Law I
The Federal Judicial Power
·         The Constitution
o        Article I
§         The legislature
·         Qualifications
·         Election rules
·         Substantive powers of congress
·         Restrictions on congress
·         Restrictions on States
§         Note: The veto power is a legislative power because it deals with what will become law.
§         Framers more concerned with legislative branch because their history is with governments where the legislative branch dominates.
o        Article II – The executive branch
§         How the executive branch is supposed to do things is not listed in the constitution.
§         Implies the existence of executive departments, but does not say what they’ll be.
o        Article III-Judicial Branch
§         Make-up
·         No qualifications for officers of the judicial branch.
·         No terms for officers of the judicial branch. (appointed for life)
§         Judicial power extends to all cases in law and equity, arising under the constitution (“and nothing else” is implied)
§         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.
§         Section 2 line 3: means treaties made before this constitution still count.
§         Two Classes of Federal Jurisdiction (Judicial Power)
·         Federal Question Jurisdiction – Is it a federal question regarding laws, constitution, treaties, etc?
·         Diversity Jurisdiction – a case where parties are of diverse citizenship (different states).
§         The Supreme Court
·         Original Jurisdiction
o        Officials of foreign entities involved in case
o        Cases where states are suing states
·         Appellate Jurisdiction
o        Everything else, if congress says so.
o        If Congress doesn’t give it, courts don’t have it.
§         Article III, section 2, clause 3
·         Vicinage Power — right to have jury in state where crime was alleged to occur.
§         Article III, section 3, clause 1
·         Treason defined
o        Levying war against US by US citizen
o        Providing aid and comfort to the enemy
·         What is the purpose of a constitution? 
o        Stability, cohesiveness between the states. Creates an idea of a different national identity different form the state identity. It provides the law which helps us determine other laws. “super guide” on how the state should perform, guidance and direction. 
o        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. 
CHAPTER I: The Role of the Supreme Court:
Issue à what is the nature of the authority of the Supreme Court over Congress, President & the states? What are the sources & limits of that authority? & what devices are available to Congress and the President if they disagree with the Court?
–          The Constitution is the framework for US; binds Congress, the executive branch & state gov’t as well as Supreme Court justices.
a.      Introduction: Creating a Constitution That Binds the Future: Gov’ts should operate according to widely understood principles & rules = basis of Constitutionalism. Rules should respect individual rights.
o        Textual constitution = convenient mechanism to get gov’t up and running.
§         W/o textual cons’t, would need to be many “conventions” to develop the laws.
§         Also, is well suited to bind people thereafter.
o        Note: The Textual Constitution’s Role in Binding the Future:
1.      The Text alone as binding: text binds people from making seemingly sensible choices (i.e., substantial majority wanting a naturalized citizen to become US Prez, but cons’t requires “natural born citizen”). Methods of avoiding this “counter majoritarian” problem (countermajoritarian = against majority’s desires):
a.      Formal amendment process: Article V has difficult but possible amendme

   Brest argues against Ackerman’s argument by saying that constitution-makers were also concerned with economic, social, etc. interests and served the interests of some above others. (it is impossible to say that individuals will always act out of self-interest)
4.      Forms of constraint on public power: Constitutionalism requires public power to be limited. Mechanisms of constraint:
a.      Representation: Framers thought representative democracy is better than direct democracy; views are passed through medium of chosen body of citizens whose wisdom may best discern the true interests of the country (Madison’s view) and who are less likely to be subject to temporary or partial considerations
b.      Popular constitutionalism: Representatives are kept in line by “republican principle,” or regular elections. This gives people the tiebreaking vote in controversies via the ballot.
c.      Military force deployed by the people:2nd amendment designed to protect people against idea that nat’l gov’t would need to be checked by military force.
                                                                                                                                      i.      “Collective right interpretation” = argues that well-regulated militias are controlled by state gov’ts (today, national guard = modern day militias; some critics argue that this can’t serve the purpose – should today be interpreted to confer an individual right because there is no such thing as what Framers intended)
“Individual rights interpretation” = right to carry weapons is individual rights, relies on tradition of “civic republicanism” (active citizenship in order to resist gov’t overreaching by force of arms)