Constitutional Law I
Professor Michael McDaniel
Week 1
Federal power and structure
· Structure: a federal system consisting of a national government and state government
§ Vertical federalism describes relationship between federal government and states
§ Horizontal federalism describes relationship between states as co-equal sovereigns
§ Federal law is supreme over state law (Article VI)
o Within the federal system, there is three coequal branches
§ Such branches have both independent and overlapping authority
· Article I: Legislative power – most prominently section 8
· Article II: Executive power – to enforce the laws
· Article III: Judicial power – “to say what the law is”
§ This division of authority is part of the structural separation of powers in a system of “checks and balance”
· Powers: Federal government is one of limited powers
o Expressed or implied (or inherent?) powers
o General police power belongs to states – not to federal government [10th amendment]
o Every action of the federal government must be grounded in some constitutional authority
o When does an act by one institution encroach on powers of another institution?
· Additional
o Article IV = privileges and immunities
o 11th amendment = sovereign immunity
o Powers under reconstruction amendments
§ The issue here, generally is : what can congress do to enforce these amendments?
§ 13th amendment = abolished slavery
§ ***14th amendment = due process of law and equal protection of the laws
§ 15th amendment = voting rights
· Constitutional law, at the most general level, is all about power
o Who has it?
§ Federalism: federal government versus state; one state versus another
§ Separation of powers: one branch versus another
o Who decides who has it?
§ Judicial review: the “least dangerous branch”?
A constitution we’re expounding
· Written, for most part, in general terms
o The key to its success
o Also its biggest drawback?
· How do we decide what it means? (text)
o Sometimes the text is clear:
§ Age requirement for House, Senate, or President
o Other times the text is vague or ambiguous:
§ Due process of law
§ Commerce…among the several states
· Deciding what it means
o Structure
§ Of the constitution can yield clues to its meaning
· Example: the necessary and proper clause found among enumerated legislative powers, not limitations on power
o History
§ Originalism: concerned with how the framers intended, understood, or applied a provision
§ Since it was created, how has the provision been understood and applied?
§ Precedent
· Rules of law established in prior cases
· May result in a tradition or reliance on the rule
§ Consequences of adopting a rule?
Judicial review
· Article III
o Section 1: vests judicial power
§ Judicial power of United State is vested in
· One Supreme Court
· Such inferior courts as Congress may from time to time establish
o Section 2, clause 1: enumerates cases and controversies over which judicial power extends
§ Judicial power extends to all cases in law and equity
· Arising under the Constitution and US laws and treaties
· Where US is a party
· Between two or more states
· Between citizens of different states / foreign nations
o Section 2, clause 2: outlines original and appellate jurisdiction of Supreme Court
§ Original jurisdiction is very limited
· Supreme Court has original jurisdiction when
o Case affects ambassadors, ministers, or consuls
o State is a party
§ Appellate jurisdiction over everything else
· In all other cases to which federal judicial power extends, Supreme Court appellate jurisdiction, with such exceptions and regulations as Congress shall make
· Congress may restrict Supreme Court’s appellate jurisdiction, and it has (Ex Parte McCardle)
o Could Congress completely divest?
· The federal judiciary has the POWER, under Art. III, to decide enumerated cases and controversies. The scope of this power includes the power to
o Declare the meaning of federal law
o Decide the constitutionality of federal and state laws
o Decide the constitutionality of the acts of federal and state officials
· Judiciary jurisdiction comes in one of two forms
o Original jurisdiction
o Appellate jurisdiction
§ The courts of the US can, without question, revise the proceedings of the executive and legislative authorities of the states, and if they are found to be contrary to the constitution, may declare them to be of no legal validity. Surely, the exercise of the same right over judicial tribunals … is not a more dangerous act. (Martin v. Hunter’s Lessee)
· There still needs to be a case or controversy. If it is neither, the Supreme Court has no power to review a matter
o Thus, STANDING must be present
· The scope of judicial power derives from a series of decisions
o Power to review federal laws and the acts of federal officers, and to declare the meaning of the constitution, found in Marbury v Madison (1803)
o Power to review state court decisions affirmed in Martin v Hunter’s Lessee (1816)[civil matter]
§ Reaffirmed in Cohens v Virginia (1821) [criminal matter]
o Power to review actions of state officials upheld in Martin; Cooper
· Congress may, but is not required to, create lower federal courts
o Lower courts were established in the judiciary act of 1789
o Congress has never invested lower courts with maximum jurisdiction
o Congress also has the power to limit Supreme Court appellate jurisdiction
§ Court upheld in Ex Parte McCardle (1869)
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o Marbury v. Madison
§ Facts- Marbury’s commission not delivered and Jefferson told his secretary of state James Madison not to deliver it. Marbury brought suit in Supreme Court seeking a writ of mandamus to compel Madison to deliver the commission.
§ Holding- Marshall rule that Supreme Ct. doesn’t have original jurisdiction to hear this case. Even though allowed in Judiciary Act of 1789, but that act unconstitutional because original power of the court restricted to those instances listed in the Constitution.
§ Three main questions:
· Does Marbury have the right to commission?
o All proper procedures followed and the seal of U.S. placed on the commission. So marbury has right to commission.
· If yes, do the laws of this country afford him a remedy?
o Marshall said that even the President is not above the law. There are some matters that are
to be consonant to right and justice
o still, to render the mandamus a proper remedy the officer to whom it is directed, must be one to whom such writ me be directed and the person applying for it must be w/o any other specific or legal remedy
o the province of the ct is to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have discretion
o ?s in their nature political, or which are, by the constitution and laws, submitted to the executive, can never by made in this court
· and the power of the Ct
o this case deals on whether to either deliver the commission or a copy of it from the record; AND whether it can issue from this ct
§ the act to establish the judicial cts of the US authorizes the SCt to issue writs of mandamus to any persons holding office under the auto of the US
· if ct is unable to issue writ its b/c the law is unconstitutional
· SCt has original jurisdiction in cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party
o in all other cases, the SCt shall have appellate jurisdiction
o the auto, therefore, given to the SCt, by the Act establishing the judicial cts of the US, to issue writs of mandamus to public officers, appears to be warranted by the consti. and it becomes necessary to inquire whether a jurisdiction so conferred can be exercised
§ the principles, so established, are deemed fundamental; and as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent
o the consti is either a superior paramount law, unchangeable by ordinary means, or it is on a level w/ ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it
§ Nations that establish written constitutions as the fundamental and paramount law of the nation, the theory of such government must be that an act of legislature repugnant to the consti, is void
o if 2 laws conflict w/ each other, the ct must decide the operation of each; thus if the consti and law both apply the ct must determine which governs the case = judicial duty
§ if the consti is regarded as superior then it governs and not the ordinary legislative act
§ the judicial power of the US is extended to all cases arising under the constitution
§ it is apparent that the framers of the consti contemplated that instrument as a rule for the government of courts as well as of the legislature
· thus the particular wording of the consti of the US confirms and strengthens the principle that a law repugnant to the consti is viod; and that courts as well as other departments are bound by that instrument