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Constitutional Law I
Villanova University School of Law
Samahon, Tuan N.

CONSTITUTIONAL LAW FALL 2009 OUTLINE
PROFESSOR SAMAHON
 
ORIGINS OF CONSTITUTIONAL LAW
I.                   State of Nature
Hobbs
1.      Attempting to justify monarchy
2.      Believes it is preferred to a pre-political state of nature
a.       Solitary, poor, nasty, harsh
3.      Recognizes no law in state of nature, no esta. prop. Rights
4.      Exit this state by uniting under a Commonwealth à Consolidate powers onto the state
Locke
1.      Distinguished Hobbs concept of license with liberty
2.      Natural law accessible by reason, there is right and wrong in SoN
3.      Inconveniences: Unsettled law, basis in adjuncation, enforcement
a.       Correlate to legislative, judicial and executive
4.      Remedy is civil gov
5.      Exit SoN: Exchange some natural rights for civil liberties to establish civil gov: We act through consent and allow ourselves to enter into civil gov
 
II.                Documents Prior to the Constitution
Declaration of Independence
1.      Dissolve political bonds to return to state of nature, yet gives reasons why they are doing this
2.      Both legal & political documents
3.      Unalienable rights: Distinction between right that can be delegated & one we always retain
4.      Consent to government to secure these rights
Articles of Confederation – Problems
1.      Required unanimous vote of the states à Impossible to get things done
2.      States represented equally (RI same as VA)
3.      Not clear this Constitution, rather Confederate of separate sovereigns
4.      National gov couldn’t control states from producing own money
5.      Executive was weak
6.      Lack of national ct. system w/ national perspective à Effected foreign appearances
 
III.             Constitution
Deliberating and Drafting
1.      3 Plans
a.       VA (Madison)
                                                                          i.      Provides 2 legislatures – Wants it done by populous states
                                                                        ii.      Appoint Pres by legislature
                                                                      iii.      National judiciary
b.      NJ (Patterson)
                                                                          i.      Wants chamber of equal vote
c.       Hamilton
Article I – Legislature
1.      HoR – From states based on population
a.       25yrs old, elected by people of the state, every 2 yrs whole body elect
2.      Senate – Elected by state leg; 2 per state
a.       6yr term, 1/3 ever 2 yrs elected
b.      Represents interest of state gov as states (keep nat gov in check)
c.       Amen 17 – Direction election of US Senator
3.      Biacameral power of impeachment: House indicts, Senate convicts
4.      Sec. 8 – Enumerated Powers
a.       Give nat gov limited powers
b.      Presumption in Con is nat gov is gov of limited and enumerated powers
5.      Sec. 9 – Restrictions on Congress
6.      Sec. 10 – Against the States
Article II – Executive
1.      Sec. 2 – Enumerated powers
a.       Appt, pardon, wage war, require opinions of writing, etc
b.      Qualification of Pres powers – Advice and consent of the Senate
2.      Sec. 3 – Take care clause à Must take care laws are faithfully executed
Article III – Judiciary
1.      Sec. 2 – Grant of power à Court limited jurisdiction
2.      Vesting: Decide to leave decision for lower fed cts. to discretion of Congress
3.      Congress only have choice to create/not create, cannot control
 
IV.              Interpretative Methods
SOMETHING
 
JUDICIAL REVIEW & CONSTITUTIONAL STRUCTURE
 
I. Judicial Review
 a. Constitutional Basis: Art III Sec. II Cl. II:
           a.    “In all cases affecting Ambassadors, other public ministers and
                  consuls, and those in which a state shall be party, the supreme court shall have                         original jurisdiction. In all other cases before mentioned, the supreme court shall                           have appellate jurisdiction, both as to law and fact, with such exceptions, and                                   under such regs. as the congress shall make.
b. Premise:
1.      the power of the courts to declare acts of government and governmental actors unconstitutional
a.       void/invalid according to Court’s interpretation of Constitution
 
1.      Marbury v. Madison
a.       Issue: can the Court issue writ demanding an exec. official do something or does that violate separation of powers?
b.      Analysis:
                                                                 i.      when Court already has original jurisdiction over a case properly before it then it can issue a writ of mandamus
                                                               ii.       Marshall: “it is emphatically the province and duty of the judicial department to say what the law is”
                                                             iii.      Constitutional Basis:
            i. Art. III Sec. 2: Courts hear cases arising under Const., then they can        look at Const. to find rights and protect them
            ii. Art VI Sec. 2: Supremacy Clause (Constitution is Supreme law of land)
            iii. Art VI: Judicial Oaths-in taking oath judges swear to uphold Const.,
                  which means they have to make sure others are upholding it too
ii. Holding: statute is unconstitutional
                  -Congress just wasn’t allowed to give the Court this additional
                  jurisdiction to hear writ matters originally, it can only hear these matters
                  on appeal according to the Constitution 
e.   Controversy:
                  -allowing judicial review puts power in undemocratic branch
                  -counterargument: Court is the least dangerous
f.    Reasons for judicial review
·         Written Constitution supposes a fixed document
·         Judges take an oath to uphold the Constitution and should be the ones to say was laws are (since cts apply the rules, they should be the ones to interpret them)
·         Federalist 78: If law is unconstitutional then court should not be bound by it
·         Argument that leg is agent of principal (“people”). Constitution ratified by a greater demoncratic majority (“we the people”) than any piece of
Legislation
 
2.      Construing the Constitution

       Prez. Truman doesn’t take contingencies
o   Labor are voters for Demo.
·         J. Black was a Senator prior to justice à Might be more protective of leg branch than allowing prez to take power
·         Arguments for Executive
o   Commander-in-Chief clause, crisis of Korean War, this is necessary
o   Take care clause that the laws be faithfully executed
o   Executive vesting clause
·         S.Ct responses
o   Not C-I-C because this is not theater of war issue, this is domestic labor dispute
o   Power to see laws faithfully executed refutes the idea that he is to be a law maker (Must faithfully enforce leg. law, not make it)
o   Executive power not withstanding legislative power is unattainable
·         Black is a textualist taking a formalist approach
2.      Concurring: Frankfurter
·         Law professor, more deferencial to prez authority
·         Rejects categorical approach of the majority
·         Cites this has not been done before by former Prez
o   If it happened in the past, maybe Congress gave implied approval
·         Frankhurter taking legal process theory with functionalist approach
3.      Concurring: Jackson (former Attn. General under FDR)
·         3 Categories of Presidential Authority
o   (1) President acts with express or implied authority from Congress
o   (2) President acts where Congress has been silent
o   (3) President was defying Congressional orders
·         Category 3 applies here
 
A.    Executive Agreements
1.      Dames & Moore v. Regan (1981)
·         Iran hostage crisis: American embassy sieged
·         Prez Carter declares national emergency; under IEEPA tries to prevent removal/transfer of Iranian assets/property
·         Executive Order
o   (1) Nullify attachments, judgments and suspends claims
o   (2) Iran-US claims tribunal
·         Deal is not by treaty, but by Executive Agreement
o   Before Agreement, D&M had attached assets ($3M) would be damaged by settlement à Argues Prez doesn’t have these powers
·         Issue: Does Prez have power to freeze and vacate all claims pending against Iranian gov’t in US courts at the time to instead be heard by a special tribunal?
·         Majority takes a functionalist approach
·         IEEPA gives Prez some powers, but no statute is on point
·         History supports these actions (Congress acquiesced – cuts across gov)
·         Falls into Category 2 from Youngstown
·         S Ct. takes idea from Jackson, but instead of categories it’s a spectrum
·         Holding: Pres actions were constitutional