Constitutional Law I – Professor Clark

Spring 2003

Stephanie Deckter

INTRODUCTION

From Confederation to Union

1776 Colonies  independent

Declaration of Independence = “free & independent states”

1781 States created Articles of Confederation

  • Charter for states to work together
  • Similar to a treaty
  • Provided for 1 branch of government
  • “Congress” or congregation of states
  • 1 vote/state
  • No legislative power
  • Only 1 court of admiralty

“Congress” not working

  • Lots of power on paper
  • E.g. to settle state boundary disputes over the western territories, collect taxes for the federal government, etc.
  • States were required to carry out the dictates of congress
  • Congress had no power to make them do it
  • Some states would comply and others would not  unfairness & complaints
  • Eventually none of the states regarded congress with any authority

1787 Constitutional Convention in Philadelphia

  • Purpose: Revise & amend Articles of Confederation
  • Articles = perpetual  big problem to overhaul them
  • Art. VII of new Constitution
  • 9/13 of states required to ratify NEW constitution & leave the Articles
  • The other 4 bought in anyway

1789 Constitution ratified/adopted by United States of America

New Constitution
  • More robust – Executive branch = method of enforcement of federal laws over people directly
  • Federalist 15: Easier to force ME to pay my taxes (sue me, toss me in jail…) than to ask NY to collect taxes from ME and hand it over to the F government
  • Major concession of sovereignty by states over their land/people
  • State CANNOT obstruct F government’s functioning
  • Three branches + checks & balances  innovation
  • Why?
  • Founders very afraid of tyranny/abuse of power (particularly by legislative branch)
  • Already beat Great Britain
  • SOP = difficult to abuse powers & easy to protect freedom
  • Hidden Checks of State on Federal government

3 Major parts of Constitution adopted at different times

  1. Constitution 1789

Created basic division of power between F/S and between branches of F

  1. Bill of Rights 1791

Many important things that just did not make it into main text

  1. Amendments 13-15 (after Civil War)

Civil War changed allocation of power between F/S governments

Did not change enumerated powers of Federal government (just created new rules under the existing powers)

Question of whether states could leave the union now answered (NO)

Congressional power to enforce

13: Prohibition of slavery

14: People are now citizens of both U.S. and a state; No state can deny due process, equal protection, privileges & immunities (civil rights), etc.

15: Voting rights for all races  Severely limited (southern) state power

Problem of integration & interpretation

Usually most recent amendments govern

Constitution CAN be amended by arduous process

Except – Equal Representation in Senate

ONLY section that CANNOT be amended without unanimous vote of the states

Federalism

Federalism = Division and allocation of powers between Federal & State government

  • States were not abolished in 1789 – Constitution presumes existence of states
  • Very unique set up of two governments operating over the same people and land at the same time
  • Then divide each government into 3 branches
  • The lines dividing branches & levels of government are VERY blurry
Federal Government

Legislative | Executive | Judicial

Legislative | Executive | Judicial

State Government

States retained all powers not relinquished to Federal government

  • If conflict between state & federal law  federal law wins!
  • Supremacy Clause – Art. VI, Clause 2
  • Judges of each state bound by the Constitution & laws (made in pursuance thereof) notwithstanding contrary state law
  • See below

FEDERAL = Enumerated Powers  mostly external

Art. I, sec 8 – Congress’ Powers

  • Tax uniformly
  • Pay off U.S. debts
  • Borrow money on credit of U.S.
  • Regulate commerce among the several states
  • Create uniform rules of naturalization and bankruptcy
  • Coin money & provide for punishment of counterfeiting
  • Establish P.O. and roads
  • Patents/Copyrights
  • Create inferior courts
  • Declare war and Grant Letters of Marque & Reprisal
  • Declaration of war  Congress can authorize private citizens to capture ships of the enemy country, bring them to admiralty court and get ½ value of the enemy ship as a prize of war
  • Only 2 years to raise $ for & support army (term of House member)
  • Theory = must review army status every time House changes over & therefore NO STANDING ARMY – not quite anymore
  • Create Navy
  • Make Rules for government & regulation of the land and naval forces
  • Provide for calling forth Militia
  • Provide for maintaining Militia
  • 10 square miles ceded by MD & VA to create capitol
  • Separate area – every state wanted capitol in their borders
  • Congress has complete legislative authority over DC
  • No state control – same at other “exclusive F enclaves” throughout country
  • Power to make all laws “Necessary & Proper” to getting the job done

STATES = All powers (including general police power) not granted to F government except for some proscriptions  mostly internal, i.e. lives, liberty, & property of people

Art. I, sec 10 – Complete Proscriptions on state power

  • Treaties, alliances or confederation with other countries
  • Main purpose of Constitution = link states to create 1 foreign policy
  • Grant letters of Marque & Reprisal
  • Coin money
  • Borrow on credit
  • Make anything but money of U.S. legal in payment of debts
  • Pass any Bill of Attainder, ex post facto Law, or Law impairing contracts
  • Grant title of nobility

Art. I, sec 10 – Conditional grants of power to State (need Congressional approval)

  • Tax imports/exports (except when necessary for executing inspection laws)
  • Any duties  Federal government
  • Lay any duty of Tonnage
  • Keep troops or ships of war in time of peace
  • Enter in to any agreement/compact with another state, foreign power
  • Engage in war unlessin imminent danger requiring no delay

Hidden Checks between State & Federal Governments – Political Safeguards of Federalism:

  • Can argue S.Ct. should defer to Congressional prerogatives – states can take care of themselves
  • If states have some power to control F government, less likely for abuse of power
  • States retain powers
  • Election of senators by State legislatures (direct election by 17th Amdt.)
  • Each state entitled to equal representation in Senate (big deal for smaller states)
  • State’s selection of members of electoral college

Federalism: State Law vs. Federal Law

Art. VI, cl. 2 = Supremacy Clause: “This constitution, and the laws of the United States, which small 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...”

  • Supremacy Clause tells Judges how to resolve conflicts between Federal and state law.
  • Constitution sets out detailed procedures for adoption of each source of law that may be supreme
  • Constitution
  • Art. VII = “The ratification of the conventions of nine states, shall be sufficient for the establishment of this Constitution...”
  • Art. V = 2/3 of the Senate & 2/3 of the House (OR 2/3 of the state legislatures, by application) can propose Constitutional amendments  if ratified by ¾ of the states becomes law
  • Equal suffrage in the Senate cannot be amended without consent of each state affected
  • Laws
  • Art. I, § 7 = Each bill must pass both the House & Senate and be signed by the President
  • If President vetoes  2/3 of both houses can override
  • Treaties
  • Art. II, § 8., cl. 2 = The President “shall have the power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur...”
  • Each relies on actors subject to original political safeguards to federalism
  • 17th Amendment, Senate not as responsive to state will as at framing, but still only actor required for creation of any source of law that may trump state law
  • If a source of law passes the required procedure
  • If nonjusticiable  political safeguards are the only help to the states
  • If reviewable  S.Ct. gets to ask if the law is Constitutional & only if answer = yes does it trump state law

Separation of Powers

Constitution created 3 branches of Federal Government

Legislative / Executive / Judicial

Article

/ Art. I / Art. II / Art. III
Embodiment / Congress
(House & Senate) / President / Supreme & Inferior Courts
Check / President has to sign bills that have passed both House & Senate / Senate must approve treaties and other appointments by Pres. / Congress can create
  • Each branch has a separate function/power AND each power is vested in a separate branch
  • Prohibition of commingling powers – but checks & balances do exist

For Example:

Congress & President

  • President must sign or return bill approved by both houses of Congress within 10 days (if he vetoes, he must return the bill with his objections)
  • 2/3 vote of both houses can override Presidential veto
  • President negotiates treaties with foreign countries, but 2/3 Senate must agree
  • Why no House?
  • Treaties = sovereignty-limiting measures
  • Need entire, equal representation of states to agree
  • Very secret – easier for 100 people to keep their mouths shut than 435
  • President has discretion of how/when to enforce laws passed by Congress
  • President can decide how/when to use armed forces AFTER Congress has declared war

Court & Congress

  • Courts can/do find laws unconstitutional after they have been passed
  • Congress has the power to create/destroy inferior courts
  • Congress can impeach Judges and 2/3 Senate to convict  no real tries since Jefferson
  • Congress can amend Constitution to override S.Ct. decision
  • Senate must approve Presidential nomination of Justices

Courts & President

  • President appoints Justices
  • President can pardon anyone convicted of a federal offense
  • Judiciary depends on President to enforce its decisions as law

Why SOP in general?

  • Slows down the government and makes it harder to get things done no rash decisions
  • Prevents tyranny – too hard for one branch to get and abuse power
  • Preserves individual liberty

Why Separate Branches?

  • No branches is bad for freedom, good for tyranny
  • No one person/group/branch gets too much power or the ability to abuse it
  • Many chances to defeat an unconstitutional law – lots of freedom-protection
  • Structure of separate branches implies SOP

Why Checks & Balances?

  • Avoid too much power in one branch
  • Avoid encroachment by one branch on another’s powers
  • Avoid interference between branches

Incompatibility Clause – Art. II, § 6, cl. 2 = Prohibition on being in the legislative and either judicial or executive branches at the same time – OK to be in the judicial and executive branch concurrently

E.g. Secretary of State & Justice Marshall

Congress and the Legislative Power

Article I

Legislative Power = lawmaking power

  • Laws are rules of conduct that regulate society
  • Constitution implies rule made by a process other than that of Art. I, sec 7 is NOT a law
  • Very General Power
  • Ex. A is BAD & is now outlawed

To pass a good law:

  • Bill must pass in both House & Senate (majority)
  • Must be signed by President OR 2/3 House/Senate must override Veto
  • Supreme Court must find it constitutional (later, if challenged)

Very inefficient

Few bills get passed = slow on purpose

 gridlock & prevents government from being too reactionary

Fewer are upheld by Supreme Court

 the bills that DO make it are REALLY good laws

Madison: legislative branch = “impetuous vortex”

 bicameralism – makes Congress weaker

 veto – prevents executive power being drawn into the vortex

 Supreme Court – prevents Constitution being drawn into vortex

Requirements/Set-Up:

House / Senate
Age Requirement / 25 years old / 30 years old
Total No. / Today 435 / 100
Must reside in / District / State
Citizenship Requirement / 7 years in U.S. / 9 years in U.S.
Original # terms allowed / Unlimited / Unlimited
Length of Term / 2 years / 6 years
Original election method / Public Election / By States – Now by Public Election
Susceptibility to Public/Political Pressure / Most – short terms very cognizant of public opinion / Least – long terms  less accountable (only Jud. less susceptible)

Size of the house/senate (& even executive branch) is analogous to age/experience level

  • Why still 30 today? Why not interpret it as 37 to compensate for longer life expectancy?
  • Framers could have said ½ life expectancy, but they did not
  • Why have any restrictions?

The President and the Executive Power

Article II

Executive Power = Enforcement & execution of the law

  • Enforcement of law over general public
  • Fairly General Power
  • Ex. Is anyone doing A? Brings X to court for doing A…

President
Age Requirement / 35 years old
Total No. / 1
Must reside in / U.S.
Citizenship Requirement / Natural born
Original # terms allowed / Unlimited – Now 2
Length of Term / 4 years

Must be natural citizen – don’t want ANY conflicting loyalties

President = 4 years per term  compromise between House & Senate

Enough time to get stuff done, but not so long that he loses accountability

Changed to only 2 terms AFTER FDR was elected to 4th term (died in the first year)

Don’t want despot situation

Election

  • Today 535 Electors
  • Electoral college – lessen popular whim (but today public really chooses, so reasons moot)
  • Electors per state = # Representatives + # Senators
  • Electors appointed in a manner specified by the state legislature
  • Today: Popular vote for the electors
  • Electors promise to vote for a candidate
  • 48 States: Candidate (really electors who promise to vote for the candidate) with most popular votes gets all electoral votes
  • Why? Want to maximize your state’s influence in the election
  • 2 States (Maine & Nebraska): Proportional electoral votes  seems better representation of public opinion
  • Electors vote for President  seal votes  Senate
  • Senate counts votes
  • Candidates with most votes & majority  President
  • Runner-up = VP

In past, Pres & VP were main opponents  didn’t work out too well

12th Amendment = VP & P on same ballot – win/lose together

Electoral College creates incentives for candidates to visit small states – easier to get all electoral votes

  • If abolished, nobody would visit Rhode Island or Delaware
  • Leads to less & less true representation
  • Want every state to matter & have candidate seriously know/consider issues of each state
  • In the age of 24 hour CNN is this really true?

VP = “a spare”

  • President of Senate
  • Only votes on Senatorial matters if there is a tie
  • Could preside over Senate, but usually does not
  • Originally VP = part of Legislative Branch
  • Today  Executive Officer with no real function – just advisor with political power

Presidential Powers

  • Take care that laws are faithfully executed
  • Send & receive ambassadors
  • Really power to recognize and establish relations with legitimate foreign governments
  • At President’s discretion who to recognize
  • Negotiates & makes treaties with advice & consent of 2/3 Senate
  • Prosecutorial Discretion
  • Decide who/how/when to prosecute federal law violators
  • Pardon Power
  • Absolute power to pardon federal criminal offenders
  • Check on Judiciary
  • Commander-In-Chief Power
  • Head of Army, Navy, & Air Force
  • No one can override orders
  • Check on Congress’ power to declare war
  • Too inefficient for large organization to run war-effort
  • Secrecy issues
  • Responsive to both people & government  No military takeovers
  • State of the Union Address
  • Suggest legislation
  • Call on executive department heads for advise (can probably do this anyway)
  • Appointment of executive officers
  • Senate must confirm
  • Senate can vest sole appointment power in President (or Courts) of inferior officers
  • Fill vacancies occurring during Recess of Senate
  • Can convene one or both Houses in extraordinary circumstances
  • Can also adjourn them if they cannot agree

Federal Courts and the Judicial Power

Article III

Judicial Power = Decide cases/controversies under the law

  • Enforcement of law in particular cases
  • Specific Power
  • Ex. Decides if X really has done A

Constitution creates Supreme Court and such inferior courts as Congress may ordain & establish

  • District Courts & Circuit Courts of Appeal – always around
  • 1789 DC had permanent Judges
  • Circuit courts borrowed Judges from S.Ct. and DCs to sit  Justices would “ride” the circuits
  • Broke down  not good for Justice to decide case at Circuit and then re-hear appeal to S.Ct.
  • Now all courts have their own Judges

DC = Trial Court

Circuit Court = Appellate Court

S.Ct. = Uber-appellate Court

1980 = Discretionary Jurisdiction

~7000 petitions for writ of certiorari per year – only ~100 granted

Need 4 Justices to agree to take the case

If not, cert. denied

Art. III, sec 2 = Original jurisdiction of Federal Courts when case involves

  • Ambassadors
  • State as a party
  • “Arising Under” laws of the United States or treaties  Federal Question Jurisdiction
  • Admiralty/Maritime
  • U.S. is a party
  • Controversies between two states
  • Between Citizens of different states  Diversity Jurisdiction
  • Between Citizens of a state and a foreign country
  • Lands under grants of different states

Art. III, sec 2 = S.Ct. has original jurisdiction when case involves

  • Ambassadors
  • State as a party

Otherwise, S.Ct. has appellate jurisdiction

Constitutional provision suggested at Convention

  • Veto power split between S.Ct. and President
  • Puts Court in odd spot if they veto a bill, then Congress overrules, then comes to Court later on Constitutionality challenge  undermines necessary impartiality of Judges

Instead… insulate F Judges from politics

  • Why?
  • Fortitude and independence required to pass, unbiased, on Constitutionality of Laws
  • Hard to pass a law  Congress pissed if S.Ct. invalidates
  • Hamilton = Least Dangerous Branch
  • Negative power – can only decide Constitutionality if case/controversy presented + only deciding one case despite broad precedential value
  • But really? Power to interpret laws  power to make new law

Justices = life tenure during “good behavior” (really just doing your job) & salary protection

No public/political influence over their decisions

Is Supreme Court only body that rules on constitutionality of laws?

  • It seems so…
  • President can veto if he thinks law is unconstitutional, no different from any other veto –can still be overridden
  • Really: All federal officers take oath to uphold Constitution
  • Minds differ on what falls within the scope of the Constitution
  • President could sign bill  send Solicitor General to Supreme Court to argue its C.

Check against Judicial abuse: