Constitutional Law Outline

Intro

• Constitutional Innovations in response to AoC and to previous British rule

  • (1) People are sovereign

  • (2) Limited powers that are delegated

  • (3) Divide power so can’t abuse

• Who?

  • People are sovereign, not states, or rulers

  • Limited government for us, by us

  • “We the people” – in opposition to the king

  • We originally was white male property owners until 14A, 24A etc.

  • Slaves 3/5 people

• Structure

  • Structure of government

    • Articles I, II, III: set up three branches

      • Legislative was considered most important and powerful because represented the people

      • Today executive has become quiet powerful; and judicial more powerful

    • Article IV: sets up relationships among states

    • Article V: amendments

    • Article VI: constitution supreme

  • Amendments

    • Bill of Rights (BoR)

    • Reconstruction Amendments (13A, 14A, 15A)

    • Progressive Amendments (XXX)

• Major Relationships

  • (1) Between branches of federal government

  • (2) Between federal government and state government

  • (3) Between government and individuals

• Conflicts in drafting of the constitution

  • Big states vs. small states Article V equal suffrage in senate cannot be amended

  • Slave states vs. free states cannot end slavery until 1808

• History of the Court

  • Marshal Court period: aggrandizement of federal and SCOTUS power

  • Taney Court: (1836–64) continues aggrandizement, Dred Scott

  • Civil War: constitutionality of succession; reconstruction amendments; protection of African Americans; then becomes more conservative

  • Progressive Era: response to industrialization; Lochner Era

  • Depression/New Deal/New Deal Court: regulate economy more

  • Warren Court: civil rights, etc.

  • Berger Court: conservative court, but also expanded women’s and reproductive rights

  • Rehnquist & Roberts Court: more conservatives

Themes:

• Constitutionality considerations: three questions

  • What? – law, structure of government, just the text, rhetorical, principles

  • Who? – SCOTUS, legislative, executive, all take oaths to uphold constitution, the people, lawyers – who trumps?

  • How? – expansively, context of other clauses, structure of constitution, outside sources

• Three ways of looking at the questions:

  • Legal doctrine: (i) holdings; (ii) evolution of cases; (iii) comparison/analogous cases

  • History: the constitution is a historically contingent cultural project

  • Theory: ?? federalism, counter-majoritarianism, natural law, separation of powers, dead hand

• Types of interpretation

  • Textualism

    • Problems of indeterminacy, and even if determinant may give bad answers

  • Historical

    • Historical practice: defer to interpretations of other branches, etc.

    • Originalism: go with original intention, original public meaning; recommitment

      • Leads to stability

    • Problem of indeterminacy

    • Problem that history is conservative and privileges status quo

  • Discretion

  • Policy/Consequentialist

    • Dangerous!

    • More or less determinate

  • Document

    • Uses the “what” to answer the “how”

    • Legal principles – read expansively

  • Representation (Democracy) Reinforcement Theory / Political Process Theory

    • Courts should police the political process to make sure it is working

  • Living institution

  • Natural Rights

• Theories of striking a balance in government

  • Public virtue: trust officials to do what’s right

  • Divided power: divide power in three ways

    • (1) Checks and balances: each has particular powers, and self-interest/ambition of each branch will have them balance

    • (2) Two legislative bodies, w/ only the house popularly elected

    • (3) Federalism: between national government with enumerated power, not residual power, and states which have retained power but are not sovereign

  • Countermajoritarian virtue v. countermajoritarian difficulty

    • Non-democratically elected panel striking down laws made by democratic process?

    • Is it a good thing that justices are insulated from the political process?

    • Responses:

      • Constitution is the will of the people

        • But intertemporal difficulty: Should we be tied to the mast of a document written and ratified in the 1780s? Are precommitments good because they foster autonomy in the future (free speech during war time)?

          • But it was only white men!

          • Dead hand problem

      • Legislature isn’t that democratic

        • Agency problem

        • Public choice theory: only responsive to those who will elect them, not the majority

          • Rich v. poor; some interests easier to organize

      • Judicial isn’t that undemocratic

        • Agency problem with SCOTUS interpreting the will of the people because rarely mechanical and more often judgment call

        • Approved by senate

          • Used to reject of judiciaries appointments, now only 4 in the 20^th century

        • Impeachment possible

        • Congressional control over courts’ jurisdiction

        • Judges not representing some small geographic area like legislators

        • Judiciary must rely on others

        • Power restrained because doesn’t have the sword or the purse

• Ways to think about law

  • Formalism: law as logical, gapless, internally coherent system and answer legal questions using logical deduction

    • Law = math/science

  • Realism: most cases present hard questions by balancing interest of parties and ultimately deciding arbitrarily

I. The structure of Government

• (A) The Role of Judicial Review

  • Marbury and Martin establish constitution as interpreted by SCOTUS

    • Does these leave room for departmentalism: other branches interpreting constitution?

  • Marbury v. Madison (1803) (p. 25) CJ. Marshall

    • FACTS: TJ’s Sec. of State Madison did not deliver Marbury’s Justice of the Peace commissions from the end of Adam’s administration

    • RULE: the constitution is the supreme law of the land; and the court can interpret it even as applies to actions of other branches (judicial review)

      • Court can only provide remedies when there is a legal duty to act/not to act – court doesn’t review political decisions

    • REASONING: judicial branch says what law is;

    • POLICY: government of law, not of men, so everyone is subject to the law

    • POLICY: comes to jurisdiction question last because wants to establish judicial review first; and because didn’t...

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