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Constitutional Law I
Villanova University School of Law
Magarian, Gregory P.

Constitutional Law Overview
·         Constitutional law is as a study of power
o   Branches of government
§ Judicial review
§ Executive vs. Legislative control
·         Federalism:
o   States are important and primary repositories of governing authority
o   Enumerated powers of federal government
§ Intra-state vs. inter-state: intra-state event may have inter-state implications
o   Congress has affirmative powers under the Constitution
o   Necessary and proper clause expands federal authority
·         Limits on government as a whole:
o   Equal Protection and the First Amendment
o   Due process clause of Fourteenth amendment
Constitutional Interpretation
·         Tribe, Lawrence- Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law
o   Textualism: Constitutional interpretation has to be interpreted using only the text of the document
o   Two basic approaches:
§ Strict textualism: Scalia
·         There is only one way to derive meaning is to read the words,
·         Look at plain meaning and look at historical context to augment,
§ Moderate textualism: Ronald Dworkin.
·         Looks at Constitutional terms
·         Meaning of words is essential but isn’t forever fixed
·         We are bound by general concepts but they can accommodate change more readily as the world changes. 
·         Chemerinsky, Erwin: Constittutional Law: Principles and Policies
o   Originalism:
§ Sources of information: Constitution and then legislature
§ Strives to answer any Constitutional question by looking at the text
§ Looks to intent of Framers to discern ambiguous terms’ meaning
§ Modern originalist
·         More willing to look at general purpose of text rather than precise wording. 
·         Can still give words broader effect, (due process clause) that the Framers intended some interpretation to occur.   
§ Strict originalist:
·         Very precise meaning of the words; strong preference for legislative determination;
·         In a democratic system, elected branches should make all decisions
o   Non-originalism:
§ Courts should go beyond the text
§ Look more to tradition and courts can interpret a case using contemporary values
Judicial Review
·         Marbury v. Madison:
·         Background/Facts:
o   In the first big power shift in American politics, the Federalist party which had been in control and is unseated by Jefferson in 1801. The Federalists want to try to maintain some authority so they just appoint justices (midnight appointments)
o   The Secretary of State was responsible for delivering pieces of paper of commissions to those judges before end of last day of Adams’ administration
o   Madison, as Jefferon’s Secretary of State wasn’t going to deliver them
o   Marbury sued Madison for delivery of the commission
o   At end of Adams’ administration, John Marshall was appointed Chief Justice
o   Marbury says this should happen as a writ of mandamus, that an order a court delivers to a government official saying they must do their duty
·         Alternatives to issuing the judicial review doctrine:
o   Should have recused himself
o   Should have just said deliver commissions
·         Key Principles:
o   KEY PRINCIPLE 1: Federal judicial power includes the power to impose a remedy if there has been a right that was violated
§ One may not sue under the Constitution because it doesn’t give you a right to a remedy if the Federal government

the statute as Court has appellate jurisdiction and power to issue writ of mandamus, in the course of its duties under the Constitution
o   Marshall said this is not properly an original jurisdiction case, only properly a case of appellate jurisdiction as original jurisdiction is plainly set out in the Constitution, which doesn’t apply to writs of mandamus
o   Congress can’t expand the Court’s original jurisdiction, which is specifically limited by the Constitution
o   KEY PRINCIPLE 6: S. Ct. must apply and interpret the Constitution
§ Written constitution embodies the will of the people
§ Have to apply law to cases and therefore must be able to know what law is and decide controversies between laws and Constitution
§ “Who watches the watchman” principle: wouldn’t have a Constitution system at all if elected branches had constraints but had the power to decide if those rules have been violated or not
§ The irony of Marbury –the court asserts the power of judicial review at the expense of other branches by saying that it does NOT have the power to judge the question before it
o   Problem judicial review poses:
§ Countermajoritarian difficult: we have a democratic system of government where elections are supposed to determine public policy
§ Judges are saying where Congress can exercise authority
§ Something wrong with unelected officials making that type of decision