Constitutional Law I

1
Constitutional Law I

• Power, Structure and Rights

2
Introduction

• Text of the Constitution
• the Current Court

3
Article I

• Creates the legislative branch
• House of Representatives
• Senate
• Defines the method through which a measure may be
  enacted into law
• Bicameralism
• Presidential signature or veto
• Veto override

4
Article I (contd)

• Enumerates the powers vested in the national
  government
• Tax Spend (general welfare common defense)
• Commerce
• Powers over War
• Necessary Proper Clause
• Imposes certain limits on the exercise of
  governmental power
• Habeas corpus (among others)
• Temporary protection of slave trade (1808)

5
Article II

• Creates the office of the President of the United
  States
• Method of election
• Term of office
• Succession
• Impeachment

6
Article II (contd)

• Defines the powers of the President
• Vesting clause (all executive powers)
• Commander in Chief
• Pardons
• Treaty Appointments (shared w/ Senate)
• Receive Ambassadors
• Take care that the laws be faithfully executed

7
Article III

• Creates the Supreme Court
• Defines Courts Original Appellate Jurisdiction
• Exceptions Clause (Appellate)
• Provides for the creation of a federal judiciary
  (power to Congress)
• Vests the judicial branch with jurisdiction over
  certain cases and controversies
• Federal Questions, Diversity, etc.
• Provides right to a jury in the trial of all
  Crimes
• Defines limits crime of treason

8
Article IV

• Full Faith and Credit
• Interstate Privileges Immunities
• Interstate rendition of fugitives
• Fugitive slave rendition
• Admission of new states
• Congressional power over territory and property
  belonging to the US
• Guaranty Clause

9
Article V

• Amendment process
• Proposed by Congress (2/3 of each House)
• Convention (on petition of 2/3 of the states)
• Temporary protection of slave trade against
  amendments
• Equal suffrage in Senate guaranteed

10
Article VI

• Acceptance of previously incurred debts
• Supremacy Clause
• Oath of office (no religious test)

11
Article VII

• Ratification process
• Nine states ratified by 1788
• All 13 states ratified by 1790

12
Bill of Rights (1791)

• First Ten Amendments (individual rights)
• Freedom of Religion, Speech, Press Assembly
  (1st Amend.)
• Right to Bear Arms (2nd Amend.)
• Quartering of Soldiers (3rd Amend.)
• Proscription of Unreasonable Searches and
  Seizures (4th Amend.)
• Indictment, Double Jeopardy, Due Process, Takings
  Clauses (5th Amend.)
• Speedy Trial, Impartial Jury, Informed of
  Charges, Confrontation, Compulsory Process,
  Assistance of Counsel (6th Amend.)
• Jury trial in certain civil proceedings,
  Re-examination Clause (7th Amend.)
• Bail Proscription against Cruel and Unusual
  Punishments (8th Amend.)
• Unenumerated Rights (9th Amend.)
• Reserved Powers (10th Amend.)

13
Other Amendments (selected)

• 13th Amendment (slavery prohibited)
• 14th Amendment (citizenship, DP, EP PI)
• 15th Amendment (race/vote)
• 16th Amendment (income tax)
• 17th Amendment (direct election of Senate)
• 19th Amendment (sex/vote)
• 25th Amendment (Presidential succession)
• 26th Amendment (age/vote)

14
Supreme Court of the United States
15
Chief Justice John Roberts
16
Justice John Paul Stevens
17
Justice Antonin Scalia
18
Justice Anthony Kennedy
19
Justice David Souter
20
Justice Clarence Thomas
21
Justice Ruth Bader Ginsburg
22
Justice Stephen Breyer
23
Justice Samuel Alito
24
Chapter I

• The Role of the Courts in Constitutional
  Interpretation

25
The Players
26
Marbury v. Madison(Three Questions)

• Has the applicant a right to the commission he
  demands?
• If he has a right, and the right has been
  violated, do the laws of his country afford him a
  remedy?
• If they do afford him a remedy, is it a mandamus
  issuing from this court?

27
Judiciary Act of 1789(Section 13)
The Supreme Court shall also have appellate
jurisdiction from the circuit courts and courts
of the several states, in the cases herein after
specially provided for and shall have power to
issue writs of prohibition to the district
courts, when proceeding as courts of admiralty or
maritime jurisdiction, and writs of mandamus, in
cases warranted by the principles and usages of
law, to any courts appointed, or persons holding
office, under the authority of the United States
28
Art. III, 2

• 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 the other
  cases before mentioned, the Supreme Court shall
  have appellate jurisdiction, both as to law and
  fact, with such exceptions, and under such
  regulations as the Congress shall make.

29
The Law of the Constitution

• Why is Art. III, 2 significant to the Chief
  Justice?
• What is the nature of constitutional law?
• What happens when a principle of constitutional
  law conflicts with statutory law?

30
Judicial Review

• It is emphatically the province and duty of
  the judicial department to say what the law is.
  Those who apply the rule to particular cases,
  must of necessity expound and interpret that
  rule. If two laws conflict with each other , the
  courts must decide on the operation of is.

31
Cooper v. Aaron
The Authoritativeness of Judicial Interpretations
of the Constitution
32
Cooper v. Aaron Prologue

• May 17, 1954 Brown I (Little Rock not a party)
• May 20 23, 1954 LRDSB announces intent to
  comply with Brown I, commencing at Central High
  in 1957 school year
• May 31, 1955 Brown II (prompt and reasonable
  start all deliberate speed)
• DC and CA uphold the LRDSBs staged plan to
  desegregate

33
Governor Orval Faubus
34
Cooper v. Aaron Controversy

• September 2, 1957 Governor dispatches NG to
  prevent black students from entering school
  LRDSB asks students not to attend until matter
  resolved
• September 3, 1957 LRDSB asks for guidance from
  DC DC instructs board to go ahead with plan

35
Cooper v. Aaron Confrontation

• September 4, 1957 Nine students attempt to
  enter, but are prevented by NG this continues
  for three weeks
• September 7, 1957 DC denies boards petition to
  suspend the plan
• September 20, 1957 at the behest of the US AG,
  DC enjoins Gov NG are withdrawn
• September 23, 1957 students enter the HS, but
  are removed because of unruly crowd

36
The Little Rock Nine
37
(No Transcript)
38
(No Transcript)
39
Cooper v. Aaron Federal Intervention

• September 25, 1957 President Eisenhower
  dispatches federal troops students enter
  troops remain until Nov. 27, 1957 were then
  replaced by federalized NG that remained for the
  year 8 African-American students complete the
  year under highly stressful circumstances.

40
(No Transcript)
41
(No Transcript)
42
Cooper v. Aaron The Case

• February 28, 1958 board files petition with DC
  to postpone plan for 2.5 years
• June 20, 1958 DC grants the relief
• August 18, 1958 CA reverses DC, but stays its
  mandate
• September 11, 1958 Cert granted case argued
• September 12, 1958 affirmed CA (with opinion to
  follow)

43
Cooper v. Aaron The Decision

• Note the signing line.
• What legal principles are at stake?
• Narrow Issue?
• Elements
• Broad Issue?
• Principles

44
Cooper v. Aaron The Assertion of Judicial
Supremacy
The decision in Marbury v. Madison declared
the basic principle that the federal judiciary is
supreme in the exposition of the law of the
Constitution, and that principle has ever since
been respected by this Court and the Country as a
permanent and indispensable feature of our
constitutional system.
45
Judicial Authoritativeness

• The Parties
• Other Courts
• Other Governmental Actors
• Government a party bound
• Government not a party cant interfere with
  execution of judgment
• Government not a party act in conformity w/
  S.Ct. judgment
• Cf. Independent interpretive authority of
  coordinate branches within eachs respective
  spheres of authority
• E.g., Jeffersons pardons Jacksons veto

46
US Judicial Hierarchy
US Supreme Court
USCA
St High Courts
St Appellate Courts
USDC
St Trial Courts
47
Martin v. Hunters Lessee

• Does the Constitution grant Congress the power
  to vest the Supreme Court with the authority to
  review state court judgments?
• (involves predecessor to current 28 USC 1257)

• Text of the Constitution Art. III Supremacy
  Clause
• History (Originalism) Judiciary Compromise
• Structural Avoid state court bias need for
  uniformity

48
The Adequate and Independent State Grounds
Doctrine

• Applies only in the context of the review of
  state court judgments ( 1257)
• Section 1257 review is limited to the FQ decided
  by the state court
• Federal courts may not issue advisory opinions
  (case or controversy requirement)
• Therefore the SCt may not review a state court
  judgment that rests solely on state court grounds

49
Adequacy
An adequate state ground fully sustains the
result and does not itself violate and provision
of the Constitution or federal law.
50
Independence
An independent state ground is one that is not
based on the state courts understanding of
federal law.
Note Michigan v. Long
51
AISG Hypothetical

• State police search Xs curbside trashcan find
  incriminating evidence.
• X seeks to suppress that evidence in a criminal
  proceeding brought by the state against her.
• State high court suppresses the evidence, relying
  on both the federal and state constitutions.
• May the US SCt review that judgment?
• Same conclusion if the state court had concluded
  that neither the federal nor the state
  constitution had been violated?

52
The Supreme CourtsAppellate Jurisdiction

• Appeals from three-judge courts
• 28 U.S.C. 1253
• By certiorari or certification over cases in the
  federal courts of appeals
• 28 U.S.C. 1254
• By certiorari over final judgments or decrees by
  the highest court of a State in which a decision
  could be had
• 28 U.S.C. 1257

53
The Process

• Petition for a Writ of Certiorari
• Questions Presented
• Purpose convince the Court to take the case
• Significance of the issues
• Conflict among lower courts
• Opposition Reply
• Cert Memo CJs Discuss List
• Automatic denials
• Conference the Rule of Four
• Consequence of a Grant, Denial
• Grants as to specific questions
• Dissents from denial

54
Cert Granted

• Clerks Office sets a briefing argument
  schedule
• Briefs filed arguing the merits
• Petitioners Opening Brief, Respondents Brief in
  Opposition, Petitioners Reply
• Amicus Briefs
• Solicitor General
• Briefs circulate among the chambers
• Bench Memos
• Oral Argument
• Conference Assignment
• Drafting Circulating
• Concurrence Dissents

55
The Counter-Majoritarian Difficulty

• Is the practice of judicial review
  anti-democratic?
• Judges are appointed (i.e., not elected)
• Serve life terms
• Judicial review obstructs the will of the people
  and their democratically elected representatives

56
The Counter-Majoritarian Difficulty

• Is the Constitution anti-democratic?

57
Constitutional Interpretation

• Interpretivism v. Noninterpretivism
• Textualism, Originalism Nonoriginalism
• Techniques Sources
• Text
• Original Intent or Understanding
• Constitutional Structure
• History Tradition
• Fairness Justice
• Political Theory Social Policy
• Precedent
• Foreign, International State Law

58
Levels of Scrutiny

• Strict Scrutiny
• Compelling Government Interest
• Narrowly Tailored
• Mid-Level Scrutiny
• Substantial Government Interest
• Substantial Relationship
• Rational Basis
• Legitimate Government Interest
• Rational Justification (Loose Fit)