Constitutional Law – Outline
A Government Structure
1 Supremacy Clause – if a federal law conflicts with a state law the Federal law trumps and States have to abide by the Federal law.
2 Express Powers – Federal government can only make laws based on the powers given in the Constitution.
3 State Governments – K, tort, property, marriage family law, juvenile, estates and criminal law.
4 Residual Power – areas not delegated to the federal government in Constitution are left to the states.
5 5th Amendment – No person shall be deprived of life, liberty or property without Due Process of Law (Applies to Federal Government).
6 14th Amendment – No State shall deprive any person of life, liberty or property without Due Process of Law.
B Constitution of the U.S.
1 Articles I – VI were in the original Constitution
2 Article I -> Legislative Branch
3 Article II -> Executive Branch
4 Article III -> Judicial Branch
C Bill of Rights -> Protect Individuals and limit the new Federal Government’s powers over the people.
II Separation of Powers
A Overview of the Three Branches of Government: Powers are not truly separated but rather blended to prevent one branch from exercising too much control.
1 The Intended functions of the Constitution is two fold:
i To institute checks and balances on each branch of government to prevent tyranny and,
ii To create more efficient Government.
2 Separation of Powers usually involves whether or not the Constitution should be interpreted to give a particular branch certain inherent powers, (not explicitly described in the Constitution: non-originalism.)
i This inquiry typically involves the question of whether such a claimed inherent power would be consistent with or violate the separation of powers envisioned by the Constitution: Originalism.
3 U.S.S.C. by power of judicial review is often asked to referee separation of powers questions. Two approaches the Court might take in separation of powers cases.
i Formalistic: Label the challenged action as legislative, executive or judicial. Identify which branch is the actor. If the action and the actor don’t match up appropriately (the legislature legislates, the executive executes and the judiciary judges), the action is a violation of the Separation of powers.
a Example: Congress telling Supreme Court how to decide on a case.
ii Functionalistic: The powers of the branches largely overlap. Thus, Separation of Powers analysis asks whether the claimed action of one of the branches interferes with one of the core functions of another branch. This analysis often involves a balancing approach that takes into account the context and historical practice.
B Judicial power vis a vis (in relation to (Thank you Cahill)) the other branches:
1 The judicial power of the U.S. shall be vested in one Supreme Court and in such inferior courts as the Congress may form time to time ordain and establish.
i 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 (Congress can give or take away Appellate Jurisdiction).
2 Federal Judicial powers of original jurisdiction include. (Congress cannot take away).
i Cases arising under the Constitution or laws of the U.S.
a Cases that pose a Federal question.
ii Cases of admiralty (seas)
iii Cases between two or more states.
iv Cases between citizens of different states
v Cases between a state and its citizens and a foreign country or a foreign citizen (i.e. ambassadors).
3 Appellate Jurisdiction is given to Federal Courts by Congress so it can be taken away.
i Appellate jurisdiction cannot be expanded past the original jurisdiction of federal courts (above).
4 Congress can create lower federal courts and decide what cases they may hear, but cannot expand lower federal court jurisdiction beyond original jurisdiction (above).
a Congress cannot eliminate diversity jur?????
b Congress cannot give lower federal courts jurisdiction over 2 citizens of the same state where no federal issue is posed.
5 MARBURY v. MADISON:
i Established the authority for judicial review of executive actions and legislative acts.
a Justice Marshall: Congress does not have the po
only to the extent that the decision was based on federal law.
a If you have a related federal question and a state question and the state question has an independent and adequate ground for the state courts decision on the state question the Supreme Court may not review the case. (This would be an advisory opinion because the case has been decided).
b The Supreme Court may only review decisions of the highest state court available.
8 The federal judiciary’s inherent power of judicial review includes the power of the Court to set boundaries of its own authority vis a vis the other branches.
i Thus, the Court has declined to address the merits of cases involving “political questions” – questions that the court believes are committed to the other branches for decision.
a A controversy presents a political question where there is “a textually demonstrable constitutional commitment of the issue to a coordinate political branch; or a lack of judicially discoverable and manageable standards for resolving it.”
(1) NIXON v. U.S. (1993); The procedures that constitute an impeachment “trial” are expressly committed to the Senate’s sole discretion.
(2) GOLDWATER v. CARTER (1979): Many questions involving foreign affairs, such as the president’s unilateral withdrawal from a foreign city.
9 Limits of the Federal judicial power:
i How should the Supreme Court interpret the constitution?
a Originalism: View that judges deciding constitutional issues should confine themselves to enforcing norms that are stated or clearly implicit in the written Constitution.
b Non-Originalism: Is the view that courts should go beyond that set of references and enforce norms that cannot be discovered within the four corners of the document.