5th Class

1
5th Class

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• Please collect homework quiz from folder box
• Handouts
• Slides
• Wickard v Filburn
• Start audio recording
• Marbury v. Madison
• U.S. Constitution
• Key Provisions (continued)
• Enforcement
• Civil War Amendments

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Review I Bills of Rights

• US Bill of Rights borrows many provisions from
  English Bill of Rights
• E.g. 2nd Amendment (right to bear arms), 8TH
  Amendment (cruel and unusual punishment)
• US Bill of Rights differs from English Bill of
  Rights
• English Bill of Rights is primarily about
  relationship between executive (King) and
  legislative branch (Parliament), a topic
  addressed elsewhere in the U.S. Constitution
• US Bill of Rights, together with US Constitution,
  aims to be comprehensive
• Some provisions of US Bill of Rights can be
  traced back to Magna Carta
• E.g. 5th Amendment (due process), c. 39 (law of
  land)

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Review II US Constitution

• Main goal was to establish a stronger federal
  (central) government then under the Articles of
  Confederation
• But states still had significant role
• Federal government is government of limited,
  enumerated powers
• Congress can only legislate if power to do so
  given by Constitution
• Most important provisions
• Power to tax and spend
• Power to regulate interstate commerce

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Marbury v Madison

• 1) In what way was the provision of the Judiciary
  Act of 1789 relating to writs of mandamus
  inconsistent with Article III, Section 2, Clause
  2 of the Constitution? That is, why was the
  statute unconstitutional?
• 2) Are you persuaded by Chief Justice Marshalls
  reasoning that a statute contrary to the
  Constitution is not law, and therefore should not
  be treated as law by a court? That is, was Chief
  Justice Marshall correct to assert that the
  Supreme Court could declare a statute
  unconstitutional and refuse to enforce it? Can
  you think of counterarguments to those presented
  by Chief Justice Marshall?
• 3) The Republicans were generally hostile to
  judicial power. How do you think they reacted to
  the opinion in Marbury v. Madison? As a
  strategic or political matter, assuming he was in
  favor of a powerful federal judiciary, do you
  think John Marshall acted wisely in this case?
• 4) Can you think of a way in which Chief Justice
  Marshall may have acted unethically in this case?

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Marbury v Madison II

• U.S. Constitution, Article VI, 2 The Supremacy
  Clause.
• This Constitution, and the Laws of the United
  States which shall be made in Pursuance thereof
  and all Treaties made, or which shall be made,
  under the Authority of the United States, shall
  be the supreme Law of the Land and the Judges in
  every State shall be bound thereby, any Thing in
  the Constitution or Laws of any State to the
  Contrary notwithstanding.

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Judicial Review

• Power to declare act of Congress unconstitutional
  not used again until Dred Scott
• Power increasingly common in late 20th century
• 1 statute per year invalidated in Warren Court
  (1960s)
• Two statutes per year invalidated in Rehnquist
  Court (1990s)
• Its power used more often to invalidate state
  legislation
• Power only used when case or controversy
• Person sued by government or private party
  pursuant to allegedly invalid statute must raise
  constitutional issue as defense
• Or person injured by statute can sue to enjoin
  operation of statute
• Member of Congress or public more generally
  cannot petition court to invalidate statute on
  principle
• Different in many other democracies

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Reading a Case I

• Cases usually start in federal trial court
• Plaintiff person who brings the case and who
  wants relief (e.g. money or a court order)
• Defendant person sued by the plaintiff, who
  will have to pay money or obey court order
• Case name. Plaintiff v. Defendant
• Party who lost in the trial court can usually
  appeal to the federal circuit court
• Appellant party who brings the appeal, that is,
  the party which lost in the trial court
• Appellee other party, that is, the party who
  won in the trial court
• Case name . Appellant v. Appellee
• Party who lost in the federal circuit court can
  usually appeal to the US Supreme Court
• Petitioner party appealing to the US Supreme
  Court, that is the party which lost in the
  federal circuit court
• Respondent other party, that is the party who
  won in the Federal Circuit Court
• Case name. Petitioner v Respondent

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Reading a Case II

• Exceptions
• Marbury v Madison did not start in a federal
  trial court, but rather in a US Supreme Court
• Wickard v Filburn started in a federal trial
  court, but was appealed directly to the US
  Supreme Court
• Party appealing called appellant, not petitioner.
  Other party called appellee
• Case may start in state court
• Then appealed to state intermediate court
• Then appealed to state Supreme Court
• Then appealed to US Supreme Court
• If there is a federal constitutional or statutory
  issue
• Note separate federal and state courts
• In downtown Los Angeles, there is a courthouse
  for state trial courts
• And a courthouse for federal trial courts

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U.S. Constitution Executive Power

• The executive Power shall be vested in a
  President of the United States of America.
• Source of theory of unitary executive
• The President shall be Commander in Chief of the
  Army and Navy of the United States, and of the
  Militia of the several States, when called into
  the actual Service of the United States

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U.S. Constitution Judicial Power

• Federal courts distinct from state courts
• The judicial Power of the United States shall be
  vested in one supreme Court, and in such inferior
  Courts as the Congress may from time to time
  ordain and establish.
• Judicial independence
• The Judges, both of the supreme and inferior
  Courts, shall hold their Offices during good
  Behaviour, and shall, at stated Times, receive
  for their Services a Compensation, which shall
  not be diminished during their Continuance in
  Office.
• Limited jurisdiction
• The judicial Power shall extend to all Cases, in
  Law and Equity, arising under this Constitution,
  the Laws of the United States, and Treaties made,
  or which shall be made, under their
  Authority--to all Cases affecting Ambassadors,
  other public Ministers and Consuls--to all Cases
  of admiralty and maritime Jurisdiction--to
  Controversies to which the United States shall be
  a Party--to Controversies between two or more
  States-- between a State and Citizens of another
  State--between Citizens of different
  States--between Citizens of the same State
  claiming Lands under Grants of different States,
  and between a State, or the Citizens thereof, and
  foreign States, Citizens or Subjects.

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U.S. Constitution Amendment

• Method used in all amendments so far
• Amendment approved by 2/3rds vote of both Houses
  of Congress
• AND ratified by legislatures of 3/4ths of states
• Other options
• Amendment proposed by Constitutional Convention,
  convened by 2/3rds vote of both Houses of
  Congress
• Ratification by constitutional conventions in
  3/4ths of states

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Enforcement of US Constitution

• What did the Framers think would prevent the
  Federal government from asserting powers not
  delegated in US Constitution?
• The States, See Federalist Papers, No. 28
• It may safely be received as an axiom in our
  political system, that the State governments
  will, in all possible contingencies, afford
  complete security against invasions of the public
  liberty by the national authority. Projects of
  usurpation cannot be masked under pretenses so
  likely to escape the penetration of select bodies
  of men, as of the people at large. The
  legislatures will have better means of
  information. They can discover the danger at a
  distance and possessing all the organs of civil
  power, and the confidence of the people, they can
  at once adopt a regular plan of opposition, in
  which they can combine all the resources of the
  community. They can readily communicate with each
  other in the different States, and unite their
  common forces for the protection of their common
  liberty.If the federal army should be able to
  quell the resistance of one State, the distant
  States would have it in their power to make head
  with fresh forces. The advantages obtained in one
  place must be abandoned to subdue the opposition
  in others and the moment the part which had been
  reduced to submission was left to itself, its
  efforts would be renewed, and its resistance
  revive.
• Is this mechanism likely to be effective today?

13
Civil War

• After Lincoln elected president in 1860 on a
  platform that would end the expansion of slavery
  in the territories, 11 Southern states seceded
  from the union
• See, e.g., Virginia Ordinance of Succesion (1861)
• The people of Virginia in their ratification of
  the Constitution of the United States of America,
  .. having declared that the powers granted under
  said Constitution were derived from the people of
  the United States and might be resumed whensoever
  the same should be perverted to their injury and
  oppression, and the Federal Government having
  perverted said powers not only to the injury of
  the people of Virginia, but to the oppression of
  the Southern slave-holding States
• Now, therefore, we, the people of Virginia, do
  declare and ordain, That that the union
  between the State of Virginia and the other
  States under the Constitution aforesaid is hereby
  dissolved, and that the State of Virginia is in
  the full possession and exercise of all the
  rights of sovereignty which belong and appertain
  to a free and independent State.
• This ordinance shall take effect and be an act of
  this day, when ratified by a majority of the
  votes of the people of this State cast at a poll
  to be taken thereon on the fourth Thursday in May
  next, in pursuance of a schedule hereafter to be
  enacted.
• Union won ensuing war
• Confederate states allowed back in Union, only
  after they had ratified 13th, 14th, and 15th
  amendments.
• Legal?

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Civil War Amendments

• XIII. 1. Neither slavery nor involuntary
  servitude, except as a punishment for crime
  whereof the party shall have been duly convicted,
  shall exist within the United States, or any
  place subject to their jurisdiction.
• 2. Congress shall have power to enforce this
  article by appropriate legislation.
• XIV. 1. All persons born or naturalized in the
  United States are citizens of the United States
  and of the State wherein they reside. Nor
  shall any State deprive any person of life,
  liberty, or property, without due process of law
  nor to deny to any person within its jurisdiction
  the equal protection of the laws.
• 5. The Congress shall have the power to enforce,
  by appropriate legislation, the provisions of
  this article.
• XV. 1. The right of citizens of the United
  States to vote shall not be denied or abridged by
  the United States or by any State on account of
  race, color, or previous condition of servitude.
• 2. The Congress shall have the power to enforce
  this article by appropriate legislation.

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Incorporation of Bill of Rights

• Before the Civil War,
• The Bill of Rights applied only to the federal
  government
• A state could abridge the freedom of speech or
  impose cruel and unusual punishment, without
  violating the U.S. Constitution
• Although doing so might violate the state
  constitution
• In the late 19th and early 20th century, the US
  Supreme Court interpreted the due process
  clause of the 14th Amendment as applying most of
  the Bill of Rights to the states
• So a state which abridged the freedom of speech
  or imposed cruel and unusual punishment would
  violate the U.S. Constitution
• Exceptions
• E.g. right to jury trial in civil cases (7th
  Amendment), right to grand jury (5th Amendment),
  9th and 10th Amendments.