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

Constitutional Law – Brown – Spring 2007
The Exam:
-can bring text and outline
-essay questions on big topics, take a shotgun approach and cover everything
The Constitution
-goals of the constitution best expressed by the Federalist Papers, authored by Hamilton and Madison
1) Several compromises:
1. bicameral legislature (uniform representation in Senate, population based representation in House)
                2. three fifths clause (implicit recognition of slavery)
                3. fugitive slave clause
                4. no slave importation prohibition until 1808
-Preamble: states objectives of the constitution, some are inconsistent with the political realities that drove the compromises
2) Why a written constitution? regulates us in a practical sense and guides us in so far as it sets out our ideals
                1. stability, cohesiveness
                2. national identity
                3. provides guidance for operation of government
                4. prevent abuse of power
                5. roots the gvt in foundational commitments and also expresses aspirations/objectives
3) Why provide for separation of power among the three branches? to guard against tyranny, downside is a slow functioning government
4) How does the Constitution address the balance of power between the national government and the states? 
I. The Federal Judicial Power
Article III created the federal judiciary and defines its powers. Seven topics covered:
“The judicial Power of the United States shall be vested.”
“…in one Supreme Court and in such inferior courts as Congress may from time to time establish.”
federal judges have lifetime tenure; states have electoral review
“cases” and “controversies”
Federal courts have authority to vindicate and enforce the powers of the fed govt.
Federal courts have authority to decide controversies btw two or more states, *btw a state and citizens of another state* – 11th amendment killed this, btw citizens of different states, and btw citizens of same state claiming land in other states.
Supreme Court has original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the S.Ct. has appellate jurisdiction, subject to “such Exceptions and under such regulations as Congress shall make.”
Trial by jury
A. The Authority for Judicial Review
Marbury v. Madison – Congress tried to expand the original jurxn of SC, in violation of Art. III.
The Supreme Court has the power, implied from Article VI, §2 of the Constitution, to review acts of Congress/Executive and if they are found repugnant to the Constitution, to declare them void.
***It is emphatically the province and the duty of the judicial department to say what the law is.***
-Judiciary, not the legislature, has the final say in interpreting the Constitution with regard to review of acts of Congress.
Constitutional supremacy: any act of the legislature repugnant to the Constitution must be void.
Judicial review: where legislation conflicts w/Cxn, SC has the authority and duty to declare statute unconstitutional/unenforceable.
-Article III §2 limited SC’s original jurisdiction, putting the Constitution in conflict with the Judiciary Act of 1789, which authorized the coa brought by Marbury.
***BUT Constitution does not explicitly say that the courts shall be the final arbiter of whether a given statute conflicts w/Cxn. ***Congress could arguably perform this duty, making sure that no act promulgated by it exceed the Constitution.
***Judicial still arg. better suited to protect minority b/c federal judges are appointed for life/free from political pressure
1. Authority for Review of State Judgments
Martin v. Hunter’s Lessee
Supreme Court may review the constitutionality of decisi

ld the right to bear arms has consistently been construed as an individual right.
US v. Miller – sawed off shotguns do not constitute the kind of weapons that one has the right to bear (nature of the weapons – what kind did the framers intend to fall under “Arms”)
Silveira v. Lockyer
-Challenge to CA law (drug activity/crime in general) limiting/removing the citizens’ rights to assault rifles.
-This Court cites Emerson as an outlier.
-sticks with collective rights theory.
Holds that the collective rights view, rather than the individual rights models, reflects the proper interpretation of the Second Amendment. The Second Amendment imposes no limitation on CA’s ability to enact legislation regulating or prohibiting individual possession or use of firearms, including dangerous weapons such as assault weapons.
2. Congressional Limits
A. Exceptions and Regulations Clause
-Article III §2 part 2 says the Supreme Court has original jurisdiction for cases affecting ambassadors, other public ministers and consuls, and where a state is a party. “For all other cases 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.”
Issue: does “exceptions and regulations” clause modify “appellate jurxn” or “fact”?
-similarly, Article III §1 says that lower courts don’t even exist until Congress creates them, the federal judicial power shall vest in the SC and in such inferior courts as Congress may from time to time ordain and establish