Law Outlines Constitutional Law (Duke Adler) Outlines
Professor Adler's Constitutional Law outline...
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2.2 Review state court decisions based on federal law 4
3. The Scope of National Power 4
3.4 Necessary and Proper Clause 7
3.5 National power and state government – 10th Amendment 7
4.1 14th Amendment Privileges and Immunities Clause 11
4.2 Modern SDP and Economic Liberties 11
4.3 Modern SDP and Fundamental Rights 12
4.3.3 Sexual activity and sexual orientation 13
4.4 Fundamental Rights Summary 14
Art. I: Created Congress
Sections 1-7: Set-Up Congress; elections; terms; how enact statutes
Section 8: Enumerates Congress’s Powers
Spending clause
Taxing clause
Commerce clause
Dormant commerce clause
N&P clause
Section 9: Creates various Constraints on Federal Govt.
Section 10: Created various Constraints against state Govt.
Art. II: Specifies rules for electing President
Art. III: Federal Judiciary
Art. IV: State Relations
Section 2: Privileges and Immunities limitations on states, non-discrimination clause
Art. V: Amendment Process
Art. VI: Supremacy Clause/Oaths
Bill of Rights: 1-10 amendments and amendments 13-15: limit Congress’s power (& the states).
5A due process limitation on FG
10A FG=enumerated power, commandeering.
14A: PI (narrow, against State Government as US citizen), DP limitation on State, EP
Under Marbury v. Madison, SC has the power to review the constitutionality of federal executive actions and federal statutes.
Veto power and appointment of an office are entirely within the president’s discretion and cannot be judicially reviewed.
Where the executive has a specific legal duty to act or refrain from acting, the federal judiciary can provide a remedy, including a writ of mandamus
specific, particular duty(“Safe Product Act” probably not a specific duty)
Issue: Two readings of Judicial Act
Marshall’s reading: SC has OJ in any case where P seeks writ of mandamus
SC has power to issue mandamus in cases otherwise within its Jurisdiction. Under this reading JA would not be unconstitutional
Constitutional Issue 1: Under Marshall’s reading, is JA, which gives OJ to SC to hear this case, consistent with the Constitution?
Art. III § 2 Cl. 2 SC OJ and AJ:
OJ: Trio Cases= Ambassadors, other public Ministers and Consuls, and those in which a State shall be a party
AJ: all other cases
Two reading of Cl. 2
Floor and Ceiling, Marshall’s reading: SC has OJ only over Trio Cases
Floor only: SC has OJ over Trio Cases, can also have OJ over other cases
In all cases… the SC “shall” have OJ | Reading Art. III as a whole | Public policy: Role of SC to interpret Constitution | |
---|---|---|---|
Floor and Ceiling | Marshall’s view: affirmative words are negative of other objects other than those affirmed. | Yes, Marshall’s view: If OJ can be supplemented, not necessary to enumerate OJ. | Yes, prevent SC from having too many unmeaningful cases |
Floor only | Yes, the Constitution not does not say that SC cannot have OJ over other cases. | Art. III specifies that Congress can change SC’s AJ. As for OJ it’s not clear |
Constitutional Issue 2: If not, does the court have the power of judicial review? Argument for judicial review:
Constitutional theory argument
constitution is supreme vis a vis statutes
Written constitution: Power of the legislation is limited and defined by the written constitution. These limits are meaningless unless subject to judicial review.
Counterargument: other countries with written constitution do not grant judiciary the power to invalidate conflicting statutes.
original understanding at the time of the framers
theory of popular sovereignty: people have an original right to establish fundamental principles in the Constitution
Institutional allocation: it’s the judicial duty of SC to interpret the law, to invalidate statutes as unconstitutional (even if Congress thinks otherwise)
Counterarguments:
SC can interpret the law without deciding its constitutionality.
Clear/ unclear violation: those examples (tax, duty, federal bill of attainder) are clear violation of Constitution, but JA’s violation is not as clear.
Arising under jurisdiction of SC: Art III grants SC the JP over all cases arising under the Constitution, this implied JR
Counterargument: SC’s power to decide cases under the Constitution still could have significant content without the power to invalidate federal statutes. E.g. SC can still apply federal statutes, and evaluate the constitutionality of state enactments.
Oath. Counterargument: everyone has Oath
Supremacy Clause: (Art. VI) Confirms the argument made in constitution theory
Counterargument: Constitution should control over all other laws, this does not mean judiciary has the power to invalidate laws. Congress can supervise its statutes by itself.
Under Martin v. Hunter’s Lessee, the Supreme Court may review state court opinions, but only to the extent that the decision was decided based on federal law.
Rationale:
prevent state attachments, prejudices.
Ensure uniformity
Art. III grants SC the power to review arising under “the Law of the United States”
Parity between P and D: both get to choose a court
Theory of enumerated federal power
Congress may act only when there is express or implied authority to act in the Constitution.
10th amendment: US is a government of limited power
The fact of enumeration in Art. I indicates that...
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Professor Adler's Constitutional Law outline...
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