Constitutional Law I Outline

Constitutional Law
Prof. Dimino
Fall 2009

1) HISTORY, THE COURT, AND THE JUSTICES
a) History
i) Consider 3 different eras
(1) Initial document→ 1789
(a) Concerned with constituting the national government
(i) Overwhelmingly questions→
1. What institutions make up the national government?
a. What are their powers?
2. How do we select those people to fill those positions?
(2) Addition of first 10 amendments→ 1791
(a) Purpose is not to just constitute a government but to place limitations on the powers of the government
1. To establish individual rights to potential excesses of the government
(b) Placed hardly any limits on the states
(3) Ratification of the 14th amendment→ 1868
(a) From that point to the present
(i) Protecting individual liberty on its own
1. Regardless of which governmental body was infringing on those
(ii) Charter of liberty
1. I have a constitutional right of free speech as against all governments of the US b/c of the constitution
a. Not always the way it was seen
(b) Constitutional Purpose
(i) Not to protect individual rights on all potential infringers – ONLY governmental infringers can violate the constitution
1. Ex. Employer places limits on freedom of speech→ he has not violated the constitution unless your employer is a government entity
a. Work for a private employer→ just like any other private entity is incapable of violating the constitution. Private persons are not charged with any obligations against the constitution
2. You as a private citizen discriminate b/c of race →you are not violating the equal protection clause→ Only the state can violate this.
a. Local governments are considered to be the state
i. If city of Harrisburg discriminates→ then it violates
3. Private citizen can violate statutory law & common law [equal employment act: can’t discriminate on basis of race] so if a private employer refuses to hire blacks→ then it’s violating state statutory law but it’s not violating the constitution
ii) The Court
(1) Basic question: Who decides?
(a) Often less important as to what the constitution means but more important as to who decides the case and how they interpret it
(b) Who has authority to give effect to constitutional interpretations?
(i) Supreme Court has the ultimate decision
iii) Justices
(1) See excel chart
2) JUDICIAL REVIEW
a) Marbury v. Madison
i) What is a writ of mandamus
(1) Issued by a court tell someone to do something
(a) Marbury wanted the SC to do this to Madison to give up the commission
ii) The court says that Marbury does deserve it, however the Judiciary Act of 1789 is unconstitutional and thus cannot grant the jurisdiction of the claim
(1) Meaning that Marbury tried to say that this Act said he could go to SC for remedy but the court decided that this Act was invalid and thus Marbury couldn’t use it
iii) SC is supreme on federal law
(1) Not on state law
(a) That is determined by the highest court of that state
(2) Therefore if a state law is in questions they will use the state courts interpretation and base constitutionality on that
(3) If question is federal→ SC get to interpret and decide constitutionality
(a) This was a federal statute
iv) Why is it that Marshall says that 1789 gives him this power [not yet discussing constitutionality]?
(1) “ The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after provided for; and shall have power to issue writs of prohibition to the district courts […] and writs of mandamus […] to any courts appointed, or persons holding office, under the authority of the United States. ”
(a) Seems to only be giving them appellate jurisdiction over such writs
(2) Marshall read it to give original jurisdiction
(a) This is also a possible reading, but there is argument over it
(3) Today the court will seek to avoid raising constitutional questions when interpreting fed stat
(a) Meaning that if one interpretation will create a constitutional issue they court will pick the other construction [interpretation] v) With that settled, the next question is why is this unconstitutional?
(1) This is the form above substance argument
(a) If congress can just add or subtract jurisdiction when the court says otherwise then what is the point of having a constitution at all?
(2) Art 3 has a list of cases where jurisdiction extends to
(a) Then it says as to some of these types of cases and cases in which a state is a party then there is Original jurisdiction
(i) And then and only then congress can add appellate jurisdiction
(3) Congress cannot expand the jurisdiction
(a) Cannot grant original jurisdiction
vi) Why can the court do this?
(1) Because this is in the context of a legal case!
(a) How else should it be done?
(i) To give the stat more affect than the constitution would be contrary to the point
b) Why we should stick with the meaning of the constitution instead of leg stats
i) This is the dead hand argument
(1) Why should we care what the framers want
(a) They are dead, no claim to how we live our lives
(2) Why not allow congress to do what it wants
(a) We elected the people and to have our modern day preferences rejected because of the policies of dead people is silly
ii) Why should we all the SC interpretation of the constitution win?
(1) Constitutional cases are never black and white instead they are grey and fuzzy
(a) Makes coming to a consensus very difficult
(2) If a state leg says one thing and a judge thinks it says another thing why should the judges win?
(a) What is Marshall’s reasoning on this issue?
(i) Argues that if it weren’t that way then the constitution bec