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


1) Functions of the Constitution
a) Provide framework for National Government of Separated Powers
b) Create a System of Federalism between Fed and State
c) Protect Individual Rights
2) Federalist papers
a) Federalist #10
i) Addresses about how to deal with majoritarian preferences (factions)
ii) Faction-groups of citizens with interests contrary to the rights of others or to the interest of the whole community
iii) Large republic is better suited to guard against factions than small republics
b) Federalist #51
i) Political branches can assure that the other branches don’t become too powerful
ii) Balance
(1) Being able to stop another branch when their actions are unconstitutional
a) Authority for Judicial Review
(1) Federal Action – Marbury v. Madison (1803)
(i) Sec. of St. failed to deliver the commission of a magistrate before the expiration of Adam’s term and Jefferson refused to finish delivery.
1. Issue – Must an act repugnant to the Constitution still be given the effect of law?
2. Held – No. The act is unconstitutional and thus void. Congress does not have the power to confer original jurisdiction to the SC – only original jurisdiction is that given by the Constitution and cannot be expanded by Congress.
3. Interpreting the law is the job of the SC, full constitutional review of both Congress and the Executive branches
4. Exceptions Clause allows Congress to remove cases entirely from SC’s appellate jurisdiction, but it does not permit cases to be moved from the appellate to the original jurisdiction
5. Power of judicial review; Supreme court may declare acts of congress unconstitutional
6. Gives Supreme court power to compel executive branch to follow its order; but does not exercise the power in this case
1. Court has no jurisdiction over purely political matters
2. Court has no original or appellate jurisdiction with regards to writs (not laid out in Article III)
3. The Marbury holding cannot rest on the text of the Constitution – because the judiciary cannot interpret the Constitution to increase its own power (this would cause circularity) so Marbury creates an unwritten constitutional tradition
(b) Ministerial Executive actions
(i) Typically cannot override political and policy judgments
(ii) Exception: when the duty is assigned by the law (ministerial acts; enforcement)
(c) Federal Legislative Actions–àbased on:
(i) Supremacy clause (Article 6)
(ii) “cases and Controversies” language in art. 3 section 2
(iii)Fact that it is a written Constitution
(iv)Fact that justives swear an oath
(v) Inherent judicial power
(d) Overall Rule
(i) The SC has the power implied from Article 6 §2 (supremacy clause) to review acts of congress
1. If found repugnant to the constitutionàdeclare them void
(ii) Establishes Article 3 as the limit on the power of the judiciary
1. Can’t expand original jurisdiction
(e) Point of the case
(i) Provides authority for judicial review of executive decision
(ii) Art 3 is the ceiling for power
(iii)Can review legislative acts for constitutionality
(f) Justifications for judicial review.
(i) Written Constitution
1. Is the Constitution binding on the national gov?yes
2. Are the courts authorized to enforce their interpretation of the Constitution against that of other branches of the national government?
(ii) Notions of judicial role
1. Ordinary role of courts is to interpret the law.
a. Requires judges to construe the Constitution in the ordinary course of conducting judicial business.
(iii)Supremacy clause
1. “The constitution and the laws of the US which shall be made in pursuance thereof…shall be the law of the land.
(iv)Grant of Jurisdiction
1. The constitution extends the judicial power of the US to all cases arising under the Constitution.
(v) Judges’ oath
1. Sworn to uphold the Constitution

(g) Sources
U.S. Const. art. III, Section 2 Clause 2
1. “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned [within the judicial power of the United States], the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”
2. Judiciary Act of 1789, § 13
“The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after provided for; and shall have power to issue writs of prohibition to the district courts . . . and writs of mandamus . . . to any courts appointed, or persons holding office, under the authority of the United States.”

(2) State Action – Martin v. Hunter’s Lessee (1816)
(i) Property dispute involving British heirs, US treaties, and Virginia law. SC overruled Va SC, and Va SC refused compliance.
1. Issue- Does the SC have appellate jurisdiction over the highest state courts on issues involving the federal Constitution, laws, and treaties?
2. Held- Yes. If the case comes under the Const., then it does not matter what tribunal it comes from
3. Supremacy Clause directs state judges to honor the Const. over conflicting state laws, but the SC can review such cases to ensure the supremacy and uniformity of federal law

hich is necessary and proper for furthering the enumerated powers
3. Taxing of a national bank by a state would violate the Supremacy Clause
4. The benefits of the people of the Union are more important than those of a state
(ii) Notes from class
1) Two issues
a) Does Congress have the power to create a bank
i) Our constitution enumerates certain powers to the gov and limits those powers.
(1) Any legislative act must be tethered to one of the implicit/explicit grants of power
b) Does MD have the right to tax it
2) First reason offered why the national government has power to start bank
a) Practice
i) The practice of doing something provides its own reason.
(1) Because practice has proven so.
ii) The bank had already been in operation for about 20 years
b) History
i) Little odd to now say its unConstitutional
ii) However, Court has power to overturn a practice (if it was enacted in error)
c) BUT
i) Unlike the court in Stewart, this is not a sufficient reason

3) Maryland argues that the creation of a national bank affects the sovereignty of the states
a) There is an idea that the states still have a sovereignty of some sort
i) NOT NOW, bitch.
ii) Justice Marshall says that the Constitutional Convention meant that the states had given up their sovereingty.
iii) States, through the people, gave up that sovereignty!
(1) Top of page 63
(2) The gov of the Union is truly a gov of the people. Its powers are granted by them, and are to be exercised directly on them and for their benefit
b) State officers took oath to uphold the national constitution and it is supreme law of the land.
4) What is the source of the power if Congress does have it?
a) It can act under the explicit/implicit powers as given by the Constitution
i) Implicit powers come from carrying out the explicit powers.
(1) May create national bank from explicit power to collect taxes.
(2) Can raise armies, but can’t do so without having the funds.
ii) If we were to enumerate everything, then we would have a crazy ass code of laws, not like a Constitution
iii) A Constitution lays out the framework of what the government should look like.