CONSTITUTIONAL LAW OUTLAW
I CONSTITUTIONAL HISTORY
A. Every Constitutions contains four essential components
a. Organic fundamental law of a nation or state
b. Constitution does not have to be written
1. writing constitution is a uniquely American innovation
c. Constitution establishes and organizes the government
d. Constitution will prescribe extent and manner of exercise of sovereign power
B. Two salient features
a. It does define what states can and cannot do
b. It defines how sovereign power is distributed within the government (defines organization of government and process by which it administers its power)
* Does the Constitution Regulate Private Parties?
There is only one instance in the Constitution where private parties are regulated
See Thirteenth Amendment
* Public v. Private Law
– Constitution represents public law
– Law of govt’s and prescribes what gov’t
C. Feature particular to the US Constitution: Feature particular to the US Constitution – Reflection of 2 concepts
a. DEMOCRATIC
1. In theory, Constitution is agreed to by the people and derived authority from those who are governed
b. REPUBLICAN
1. Term used in the Constitution.
2. In this course, the term means self government and representative democracy
D. Three Structural and Textual Themes of the Constitution
a. Federalism – vertical
1. Constitutional division of power between federal government and states governments
2. American revolution was a war waged against central government. Not surprising that when colons won war, they chose form of government – embodied in articles of confederation- which gave states as much autonomy as possible.
3. As result of lack of common market, there was perceived need to create stronger federal government – Philadelphia Convention. But, they still had strong sense that states needed to retain substantial power
4. Creation of dual sovereign with shared powers
1) For example: “Subject matter jurisdiction” reflects constitutional structure of Federalism. Fed courts have limited one. State courts have general one
b. Separation of Powers – horizontal
1. How power is distributed within the national government
2. Three branches
1) Legislative – makes the law – Article I
2) Executive – enforce the law – Article II
3) Judicial – adjudicates the law – Article III
3. Related theme: Checks and Balances Branches will operate to restrict power of other branches. Two kinds
1) External checks and balances
– Direct way of restricting. ex: President’s veto
2) Internal checks and balances
– Ex: bicameralism of legislature
* As the constitution was ratified – these two themes federalism and separation of powers were most important
c. Individual Rights and Liberties
1. 1791 – Bill of Rights ratified – Constitution was modified again during Reconstruction (13th, 14th, 15th)
2. Why didn’t framers include individual rights originally? The rights would not have been worth anything unless there was a way of enforcing them. The government needed to function and the structure was the best way to protect individual Rights
II Constitutional Interpretation
A. United States v. La Jeune Eugenie v. The Antelope
a. United States v. La Jeune Eugenie ( Justice Story) NATURAL LAW
1. Facts: Government is moving for forfeiture of a ship used in slave trade based on argument that use of ship for slave trade is unlawful activity. Court is looking at International law and admiralty law and finds that sources of international law are: 1. General principle of right and justice 2. Customary law 3. Conventional and positive law
2. Three source of international law
1) General principle of right and justice
2) Customary law
– Custom and usage between nation that have arisen in course of dealing with one another
3) Conventional and positive law
– Treaty
3. Holding: Court finds that there is a hierarchy – if there is a conflict between outcomes dictated by either (1) will trump (2) or (3). These general principles are to be found by using (1) revelation based on the principles of Christianity. Even if one is not Christian, every religious system has common characteristics in terms of overarching principles, or (2) reason, which includes obligations of morality.
4. Result: Slave trading is prohibited by public law because it is repugnant to general principles of justice and humanity.
b. The Antelope (Chief Justice Marshall) POSITIVISM
1. Facts: Litigation about the human cargo. US argues that it should be freed upon reaching US. Slave owners disagree.
2. Holding
1) Marshall agrees with Story in terms of outcome but he does not agree with his analysis. While he agrees that (1) (2) and (3) are the sources of international law, he reverses the hierarchy: (1) does not trump (2) or (3) but to the contrary (2) or (3) trump (1).
– So customary law, and conventional law trump general principles of right and wrong
2) Justice Marshall agrees that slave trade is against general principles of right and justice. Slave trading may violate
those rights into existence.
f. Rights are enforceable if they are recognized by the government
g. Rights only exist when they are granted by the state/government thru specifically enacted laws
h. Most dramatic form of the debate in constitutional history has been:
Whether there are some fundamental constitutional protected rights apart from the state or do all rights arise solely because the state chose to recognize those rights thru promulgated rules and textual provision of the constitution?
i. Procedure for interpreting under the positivist approach
1. Constitution is the starting and ending point
2. Judges should enforce what is in the Constitution itself and its text as touchstone.
3. If the constitution is silent then it is for the legislature to decide
4. Emphasis on the plain meaning of the text
5. Emphasis on the original understanding of the framers
6. The constitution should evolve only through amendment
7. Emphasis on the structural relationships reflected in the document
8. It does not mean that the Constitution should be read narrowly instead of broadly. But whether read narrowly or broadly, source of doctrine and policies used in judicial review must be derived ONLY from the Constitution itself.
j. Positivist have 2 techniques – textualism and originalism
1. Textualism
1) Judges should confine themselves to enforcing norms and values that are either expressly, Explicitly stated in constitutional text or that are CLEARLY IMPLICIT.
– Ex 1: Art III “need to be at least 35 year old to be president” When the language is clearly explicit and express – use textualism
– Ex 2: Textual analysis for wire tapping. 4th Amendment does not expressly and explicitly refer to tapping of phone which did not exist. No serious arguments that since phone are not referred to, they are excluded. It is clearly implicit in the 4th Amendment since the core value of the 4th Amendment protects textually “privacy.” It is equally apparent that when the government taps your phone it is an invasion of privacy
