CONSTITUTIONAL LAW. Professor Ronald Turner A.A. White Professor of Law Fall 2018

Transcription

1 CONSTITUTIONAL LAW Professor Ronald Turner A.A. White Professor of Law Fall 2018

2 The United States Constitution Article I: All legislative powers shall be vested in a Congress of the United States... Article II: The executive power shall be vested in a President of the United States of America. Article III: 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. Articles V (amendments) and VI (the Supremacy Clause)

3 The United States Constitution Amendments I-X (1791): the Bill of Rights Amendments XIII (1865), XIV (1868), and XV (1870): the Civil War Amendments Amendment XIX (1920): the right to vote shall not be denied or abridged... on account of sex.

4 Interpreting And Applying The Constitution Rules; standards; principles Number of Senators per state: 2, serving six-year terms (Art. I, Sec. 3) The President: must be a natural born Citizen and have attained to the age of thirty five years (Art. II, Sec. 1, cl. 5) Conviction for treason against the U.S.: Testimony of two Witnesses to the same overt Act, or on Confession in open Court (Art. III, Sec. 3, cl. 1

5 Interpreting And Applying The Constitution Judges shall hold their Offices during good Behaviour (Art. III, Sec. 1) abridging the freedom of speech (Amend. I) due process of law (Amends. V, XIV) equal protection of the laws (Amend. XIV, Sec. 1)

6 The Basic Framework Marbury v. Madison (1803) o Facts; questions before the Court Is Marbury entitled to a writ of mandamus issued by the Court? Article III; Section 13 of the Judiciary Act of 1789 A mandamus seems not to belong to appellate, but to original jurisdiction

7 Marbury (cont.) Is the Judiciary Act contrary to the Constitution? It is emphatically the province and duty of the judicial department to say what the law is. The oath of office Holding: the Court may review and declare acts of Congress unconstitutional

8 Article VI Clause 2: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof... 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. Clause 3:... all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution...

9 The Basic Framework Martin v. Hunter s Lessee (1816) o Facts; issue Article III; the Supremacy Clause (Art. VI); Sec. 25 of the Judiciary Act It is the case, then, and not the court, that gives the jurisdiction. The Framers contemplated that cases within the judicial cognizance of the United States not only might but would arise in the state courts...

10 Hunter s Lessee (cont.) State judges are not independent with respect to the powers granted by the United States and are expressly bound to obedience by the letter of the constitution o See Art. VI, cl. 3 The necessity of uniformity Concern: plaintiffs strategic resort to state courts Holding

11 The Basic Framework Judicial review (Marbury) and judicial exclusivity (Cooper v. Aaron) Cooper: the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States... o Note Jefferson s, Lincoln s, and Meese s views on this subject

12 The Sources Of Judicial Decisions Text and original public meaning The Second Amendment: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. District of Columbia v. Heller (2008) and the Second Amendment o Justice Scalia s prefatory and operative clauses (18 th -century dictionaries and sources, etc.); limits on the right to bear arms o Dissenting: Justices Stevens and Breyer

13 Sources Of Judicial Decisions McCulloch v. Maryland (1819) Question 1: has Congress power to incorporate a bank? The Constitution emanated from the States or from the people? The enumerated powers of Congress (Art. I, Sec. 8); the Tenth Amendment (note the absence of the word expressly before delegated )

14 McCulloch (cont.) The Constitution s great outlines ; we must never forget, that it is a constitution we are expounding The Necessary and Proper Clause, Art. I, Sec. 8, cl. 18 o To make all Laws which shall be necessary and proper for carrying into execution the foregoing Powers... o Compare Art. I, Sec. 10: except that may be absolutely necessary Necessary : convenient, or useful, or essential to another

15 McCulloch (cont.) Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional. Held: the act incorporating the bank is constitutional

16 McCulloch (cont.) Question 2: whether the state may constitutionally tax the bank o See propositions, page 63 CONFIDENCE Held: the states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress. Note: permissible state taxation of the Bank of the United States