Con Law Outline!
Con Law Outline!
Con Law Outline!
Class Notes: Similarities and Differences between the Articles of Confederation and the
Constitution
Articles of Confederation almost exclusively for defense and foreign policy. These are
important in the Constitution, and that’s reflected in the broad jurisdiction of the
executive over them, but the federal government also does lots of other stuff.
Articles of Confederation leads off with 10th Amendment-like text – much more
concerned with limiting federal power
The Constitution has ACTUAL BRANCHES of government rather than one proto-
legislative mass.
o Including Judiciary – Constitution is judicially enforceable law, as is the shit
Congress comes up with.
o Bicameral legislature – more powers, so more checks and balances
Word “white” doesn’t appear in the Constitution, but does in Articles. Makes Dred Scott
even more ridiculous – Constitution separates out free and not-free (slave) people, but
doesn’t make racial distinctions between free people.
Preamble closely tracks Article III of the Articles, but the People instead of the
States are sovereign.
Constitution is much easier to amend than the Articles – why the Articles doomed
themselves to irrelevance and the Constitution didn’t.
STATES ARE NOT SOVEREIGN UNDER CONSTITUTION, WE KNOW
Federal government can coin money
Article IV looks similar
Hierarchy of laws – Supremacy Clause.
o Order of most authentically democratic
o Creates basis for other laws
GEOSTRATEGIC ARGUMENT – We’re free because for 150 years there was no
standing army in America, and the Constitution prohibited there from being one.
Most Important Constitutional Decisions:
o Ratification by the people
Including Bill of Rights that emerged from Ratification discussion –
repeatedly references the People
Wasn’t that important anyway – Sedition Act, only SCOTUS
enforcement was Dred Scott which was an epic fail
o Decision to resist succession by force of arms
o Emancipation Proclamation
o Louisiana Purchase – continuing execution of the geostrategic argument. No
more European powers in North America
o 13th Amendment
AUC Chapter 2:
OH GOD, NOT THE SPECIAL RATIFYING PROCEDURES AGAIN.
The deep meaning of how the Constitution became law shoot me now. Also how
amendments passed.
Conventions outside the confines of everyday government – superior democratic mandate
to state legislatures elected for ordinary business and not specifically for the Constitution
AMAR YOU ALREADY SAID ALL THIS.
Huge, public freedom of speech in ratification debates.
WOW DID YOU KNOW THAT THE PEOPLE ARE THE SOVEREIGN? AND THAT
IN ENGLAND PARLIAMENT WAS THE SOVEREIGN SO PEOPLE DIDN’T HAVE
THE SAME SPEECH RIGHTS THAT PARLIAMENT DID?
Free speech so central to creation of Constitution and its ratification by the
sovereign people that it’s an unwritten but intrinsic right of the Constitution – First
Amendment made it explicit but is arguably declaratory.
o First Amendment, as well as the rest of the Bill of Rights, came about
because of robust ratification debate – robust free speech
Let’s take a step back and try to defend why this isn’t insane, shall we? Argument from
enactment special type of historical argument that apparently gets textual and structural
superpowers.
o “This Constitution” as a deed as well as a text GAAAAAAAAAAAAH
Look…that’s not how law works. There’s nothing preventing them from
being hypocritical and definitely nothing which imports the enactment
procedures into the text.
Textual interpretation of “do” makes the historical argument textual…
o Structural strength – focus on the Constitution as a whole. About how entire
document came into being.
Preamble gestures toward idea that the process of Constitutional enactment is part
of the Constitution and a source of constitutional law. Are you insane?
Enactment shows importance of majority rule
o Nine states, but majority within each state
Previously, on Forming a Union: Each State is Sovereign! Yes voters
can’t bind Nos.
o Unwritten – so clear it didn’t even need to be specified. Every state used majority
rule. Generally accepted by Anti-Federalists who lost the vote. Points to idea
that majority is the default unless otherwise specified, or possibly even when
otherwise specified.
o Majority was followed even in states whose constitutions required more.
o Massachusetts – amended state constitution, outside of written amendment
process, by simple majority rule even though enactment took 2/3. Anti-
Federalists conceded because of wishes of majority of People as sovereign.
Also New Hampshire and eventually Pennsylvania.
o “Across the continent, patriots from all points on the political spectrum had
come to believe that, regardless of the specific wording of various state
constitutional clauses, the people had an inalienable legal right to alter or
abolish inadequate governmental systems, and that such a legal right could
be exercised by a simple majority of the people in any given state.”
o Virginia’s Declaration of Rights in 1776 – explicit link between popular
sovereignty and majority rule.
o Unwritten rule of majority rule can apply to House and Senate too – should
be able to change filibuster rule with simple majority.
Explain to me again why the whole idea of an unwritten Constitution isn’t insane?
o The Preamble puts the ratification process forward as the source of the
Constitution’s legal authority, as does Article VII.
o Have to look outside the text to see which actual text is the official Constitution.
Our Lord and Savior Jesus Christ
o Not actually part of the Constitution – enacted by the people, not some guys
o Actually I think this whole section is a waste of my time.
o Not ratified by 9 states
o Framers’ Christianity part of unwritten Constitution?
Unwritten Constitution shouldn’t contradict actual Constitution…
Confederation, league, sovereignty, expressly – all in Articles and intentionally
omitted from Constitution
o God expressly not in Constitution, even though it was in the Declaration,
Articles, and several state constitutions
Constitution not aggressively antireligious but religiously neutral – permits personal
professions of faith even in public
o Before incorporation, First Amendment and religious test were directed against
the federal government – states freer to favor religion/a religion. More about
states’ rights than individuals’. Speech – could prevent states from
restricting. Religion – couldn’t do anything at all.
Religiously neutral federal government alongside state freedom to prefer religious
sects – part of the unwritten Constitution even before First Amendment, which again was
largely declaratory. Absence of God in official text alongside presence in unofficial
text.
Enactment of amendments – First Reconstruction Act important part of Fourteenth
Amendment ratification – basic matrix that brought it forth. Statute therefore part of
meaning of amendment.
o Principle: federal government has authority to hold states to highest
standards of democratic inclusiveness.
New and Improved Republican Form of Government under 14th
Amendment – new interpretation.
I would argue that this principle was born from the CIVIL WAR and
manifested itself in the enactment process rather than being created from
the enactment process.
o Um…this is just called history/current events, not some special principle of
unwritten constitutionalism…
o Went beyond founding principles without violating them. New Deal anyone?
o Implications for later on – read broad reading of Republican Government clause
itself broadly to say that the government, including the judiciary, could poke non-
republican states whenever they were falling down on the job (not just when they
were breaking the entire country). Warren Court.
Apparently the Union Army occupation means that the draft is constitutional?
o Raise and Support Armies – supposed to be volunteer
o Any military conscription would take place through the militia system.
Second Amendment – militias are guarantee of freedom. Disfavors a
national draft.
o Secession generally reversed much of the federal-skepticism, state-supporting
that animated the original Constitution, bill of rights, etc. Federalist 10,
Madison was right, states can be the origin of tyranny.
National draft, rather than militia draft, now ok-ish. Taney not a fan and
had loopholes, so not total conscription.
o Fourteenth and Fifteenth Amendments made draft totally ok – necessary and
proper for maintenance of Union to command federal troops.
This begs the question! If it’s not allowed, you can’t do it! Might not be
in a gray area!
Militias no longer constitutionally preferred force to secure liberty –
actually makes some sense.
Unwritten Constitution changed, but didn’t run into any explicit textual
barriers so that’s ok.
o Selective Draft Law Cases of 1918 – Court got right result with wrong reasoning.
Raise and Support Armies, despite Founding-era volunteer expectations.
Fourteenth Amendment reaffirming federal citizenship, so federal government
can act directly on citizens – doesn’t explain earlier citizenship references, or
women. Civil rights, not political rights. Apparently, should have made
unwritten constitutional argument about enactment process of 14th Amendment
permitting the draft. THIS IS ALSO KNOWN AS A HISTORICAL
ARGUMENT.
SUMMARY:
1. Special magic historical arguments about the Constitution’s enactment are actually
unwritten constitutional textual/structural arguments because of the centrality of the
process of enactment to the “constituting” – the ACT of doing/enacting the Constitution.
2. Free Speech part of unwritten constitution because of its importance to popular
sovereignty and its importance in the ratification debates.
3. Majority rule unwritten constitution principle – how enactment happened, even when it
was explicitly supposed to be non-majority.
4. At founding, religiously neutral federal government but states could favor religions.
Changed after Civil War when we realized we should be scared of states too.
5. Republican Form of Government clause also changed when we realized we should be
scared of states too – enactment process of 14th Amendment showed federal power to
make states shape up.
6. Draft into national army also permissible – Civil War overturned earlier unwritten
constitutional gloss that made state militias the preferred instrument of liberty defense.
BLBAS 29-85 and class notes: The Bank of the U.S.A and McCulloch v. Maryland.
Had a bank during the Revolution even though there was no authority because it was
necessary.
Madison – no power under the Constitution. (Yeah, we know Marshall didn’t end up
liking that…)
o Enumerated powers. IT DOESN’T SAY A BANK.
o Not strictly NECESSARY
House disagreed, adopted broader view of federal power, and had a bank.
Attorney General Randolph – also thought it was unconstitutional. Unlimited federal
power.
Jefferson also thought it was too broad a power. Convenient, not necessary.
Hamilton – pro bank. Enumerated powers include power to use means applicable to the
ends of the execution of such powers. What Marshall says.
o Government can create corporations, and can create this one because it’s in
pursuance of a permissible end.
o Necessary = useful, conducive to
o Rationally related to specified powers – taxes, borrowing money, raising and
supporting armies
Bank failed renewal and THEN WE HAD THE WAR OF 1812 AND THE ECONOMY
WENT TO HELL. Madison ended up signing the Second Bank bill.
MODALITIES:
o Text: modern or contemporaneous words
o History
o Structural – nature and relationships of parts of the Constitution
o Precedent, especially judicial precedent
o Prudential
o Ethos – truth, justice, and the American Way
McCulloch v. Maryland
Facts: Maryland attempted to exact ruinous tank on national bank branch, bank guy
refused to pay. Chartered in 1816, Madison signed into law despite earlier opposition.
Economy was a disaster without the bank. Tax wasn’t *technically* on the bank of the
U.S., but that was the only bank that fit the statute’s description.
FYI, state courts can declare things unconstitutional – state judges supposed to
enforce Constitution.
o State judges elected or appointed by governor, federal judges appointed by
president. State judges paid by legislature and don’t have tenure – may be less
impartial when it comes to their state.
Judicial review = always way after the fact. There are real condequences
o Paragraphs 1-5 – lowering burden of proof because of those consequences.
Deferential to bank/legislature/history.
“Express” expressly not in the Constitution. Pointed omission between
Confederation and Constitution language.
Fair construction of instrument as a whole – structural. The Constitution is supposed to
be concise because people need to understand it because they needed to ratify it.
Makes it democratic.
National defense – reason for Constitution, reason for bank. Need bank for
manifest destiny, need manifest destiny for national security.
Paragraph 1: This is a big issue and the Supreme Court gets to decide it. 2 questions,
must win on both: constitutionality of bank and lack of Maryland’s power to tax.
Paragraph 3: deferential standard of review because actual consequences
o Criminal counterfeiting cases implied constitutionality – more important because
of bodily liberty, which we’re not dealing with here.
Paragraph 4: Not great principles of bodily liberty and SO MUCH $$$$ - keep adding 0s
until it gets interesting. Relevent to post-hoc judicial review – not going to strike ti down
unless we have to.
Pargraph 5: departmentalism. More about standard of review. A MIND AS PURE
AND NOBLE AS WASHINGTON, Madison, burning capital to ground
Paragraph 6: arguing in the alternative. “And even if it were new, I would probably call
it constitutional!”
Paragraph 7-13: Constitution comes from The People, not states.
Paragraph 14: No business being there, sets up second question.
Paragraph 15: more on second question.
Paragraph 16: starts talking about case
o Implied power – INTENTIONALLY OMMITTED WORD EXPRESS SO WE
COULD DO THIS. Express under Articles didn’t work that well.
o Need to have implied powers so Constitution isn’t 2000 pages long and can be
understood by laymen. Enlightenment.
Paragraph 17: Makes case. Great powers of government for common defense
(geostrategic argument). Banks are pretty useful for national security. That’s
enough of a justification.
o Congress gets choice of means unless Constitution explicitly prohibits
something. Doesn’t prohibit creation of a corporation.
Paragraph 18: responding to counterargument
Paragraph 19: Guys, chill, a corporation is just another type of law
Paragraph 20: Shifting burden of proof to defendant because of deferential standard of
review. Again, government gets choice of means.
o The Necessary and Proper Clause is in Section 8: powers, not Section 9:
restrictions. It’s the extension cord.
Paragraph 21: multiple sovereignties. States sovereign in their sphere and federal in their
and when they conflict, federal>state. Echoes Hamilton’s response to Madison.
Paragraph 22: Argument against restrictive interpretation of Necessary & Proper Clause.
Paragraph 23: Maryland thinks it’s a restriction, even though it’s clearly in the powers.
Paragraphs 24-25: Argument that clause is there so Congress can legislate is absurd. OF
COURSE CONGRESS WOULD HAVE BEEN ABLE TO LEGISLATE IN THE
ABSENCE OF THE NECESSARY AND PROPER CLAUSE.
Paragraph 26: “nugatory” argument of N&P. Responds to Maryland’s/Jefferson’s
argument, invokes Hamilton who also thinks it’s stupid.
Paragraph 27: appeals to common usage of the word necessary.
o Necessary can take on adjectives. If we mean mathematically necessary, that
doesn’t make sense.
o Constitution says absolutely necessary elsewhere. Therefore, it doesn’t mean
that here. Intratextualism.
o FYI, language changes – important to know what it meant at time of enactment.
Paragraph 28: Reiterating Paragraph 16. It’s really important that the Constitution be
enduring and understandable by normal people.
o Very first statute Congress ever passed was Oath of Office, even though it wasn’t
mathematically necessary.
Paragraph 29&30: powers to punish. Counterfeiting cases – LIBERTY was at stake and
we did it anyway, which strongly suggests that the underlying thing is constitutional
o EVERYTHING flunks the nugatory test, so that can’t be the right test.
Paragraph 31: prudential argument
Paragraph 32: earlier argument about great principles of liberty. “Needful” is really
important
Paragraph 34-36: of course there would be choice in absence of N&P. Not limitation –
listed in powers. Syntactically, it doesn’t take anything away. Would have been worded
better if it were a restriction.
Paragraph 37: still not a minus. May or may not be a plus but that’s not important to the
argument. It’s just an elaboration.
Paragraph 38: test for constitutionality. Taken from Hamilton. Ends proper, means
not prohibited.
Paragraph 40: Corporation is needful under Article II, must be constitutional.
Paragraph 41: LOL MADISON SUCKS.
Paragraph 42: Degree of necessity – Hamilton again. Legislative decision. As long as
it’s not pretexual, it’s for the legislature to decide. Spirit.
Paragraph 43: Sovereignties, state banks
Paragraph 44: Unanimous decision.
Paragraph 45: of course you can have branches.
Paragraph 46: Bank is constitutional. If it were unconstitutional, it couldn’t claim federal
immunity from taxes, so now we have to deal with that question.
Paragraph 48: Both federal and state governments have the power to tax. However, the
Constitution can limit those powers. Textual or structural limitations.
Paragraph 49: Making a structural argument.
Paragraph 50: Structural argument, supremacy clause is textual embodiment.
Paragraph 51: Tips hat to lawyers who argued the case
Paragraph 52: BANK IS STILL CONSITTUTIONAL!
Paragraph 53: Heart of argument
o Power to tax is the power to destroy
o Nevertheless, taxation is an absolute power with no express limits
o Supermacy
Paragraph 54: Maryland is saying trust us. Power of taxation isn’t limited, but we’ll use
it properly. Sure.
Paragraph 55: Structural limits to power of taxation
o Taxation comes from legislatures
o Only limit to the power of taxation is elections
o No taxation without representation!
Paragraph 56: Because of legislative accountability, people can have confidence because
they can throw the bums out. However, the bank is created by the whole, and a part
shouldn’t be able to undo that.
Paragraph 57: Answers alien problem. Foreigners voluntarily bring themselves into
jurisdiction
Paragraph 59: foreigners come in with permission. Play by our rules including our taxes.
Paragraph 60: As a result of everything, states can only tax that over which they have
sovereignty. Judicial bright-line rule.
Paragraph 61: states have no right to tax the federal government.
Paragraph 63: Power to destroy = logical application of argument.
Create/preserve/destroy/repugnance/supremacy
Paragraph 64: Tahnks to sovereignty/legislative confidence argument, only Congress can
tax the bank. Also, wouldn’t let people of one state tax people of another, which is what
Maryland is doing. Horizontal federalism.
Paragraph 66: IF YOU LET THEM TAX THIS THEY CAN TAX EVERYTHING AND
DESTROY THE ENTIRE CONSTITUTION.
OK WE’RE DONE HERE
Weeks 3-4: Separation of powers. The judicial power, judicial review, and the legislative
power.
ACAB Chapter 6: Judicial Review
Constitution much less deferential to Supreme Court as chief interpreter of the
Constitution than modern world – lists judicial branch third, makes SCOTUS supreme
over other judges but not other branches, and “bicameralism” of juries
No state constitution pre-Constitution gave courts power of judicial
review/constitutional interpretation.
o Judiciary didn’t have a great reputation – loyalist almost everywhere except
Connecticut and Rhode Island, where colonists chose own judges.
Judiciary least among branches, constitutionally, conceptually, and democratically.
o Judicial review would always have to be post hoc, after the legislature and
executive already blessed a law, and only if someone decided to challenge it.
o Executive and legislature had to materialize before judiciary could happen.
o Democratic logic – first institutions most democratic, later less. Tracks
Supremacy Clause as well. People (preamble), Congress, President, Judiciary
Legislators and executives can pick other legislators and executives, but
judges don’t pick legislators and executives or other judges. Can’t judge
own members’ qualifications either. PRESIDENTS PICK JUDGES,
JUDGES DON’T PICK PRESIDENTS.
Judges don’t even pick their own leaders, like Chief Justice
o Even within judicial branch, SCOTUS has little to no authority over lower
judges – only power of precedent-setting.
However, SCOTUS judicial decision final – unlike English precedent (only remembered
to have a court separate from the House of Lords in like what, 2004?). Congress gets
only legislative power.
o Small exceptions when legislature specifically has juridical capacity –
impeachment, expulsion of members, contested elections and qualifications.
Exceptions exist because to give these cases to the judiciary would run into
democracy deficit problems.
SCOTUS supreme over state courts.
England – parliamentary sovereignty – privy council can’t strike down parliamentary
enactments. America – popular sovereignty – judicial review over acts of Congress.
o SCOTUS generally deferential pre-Civil War. Only federal statute invalidation
in Marbury.
Less judicial independence than other branch independence. Also less importance.
o Court size and shape up to Congress
o Congress decides where and when Court meets and what rules it follows
o Allows political restructuring, i.e. court packing
o Congress can grant or withhold (or dangle) judicial pay increases
o Congress can strip the Court of jurisdiction in many cases and reshape inferior
judiciary
Judiciary swung South as did EVERYTHING thanks to 3/5ths Clause
o More circuits in the South because there was just more riding to do on worse
roads, so got more judges/population than other places.
Most early constitutional questions never came before the pre-Marshall court. Biggest
deal was Congressional tax on carriages which they upheld.
Court’s absolute and relative positions both eventually rose
o Country stopped growing, so Congress didn’t need to keep adding circuits, so
they had less of a reason to mess with the composition of the judiciary or the
Court, so it because a norm that they didn’t.
o Needed more inferior courts, which gave SCOTUS sort of a bunch of officers
who saw themselves as Court’s lieutenants even if constitutionally the Court has
little to no power over them. Also bigger bureaucracy – clerks!
o Court speaks with one voice in majority opinions seen as the last word on the
Constitution. Congress speaks with 500-something stupid voices.
o Congress gave Court general appellate jurisdiction over everyone and greater
bureaucratic control over judiciary as a whole (FRCP?)
o SCOTUS gets vast discretion over own docket – near-plenary authority to define
own agenda
o Post-Watergate, judiciary looks like the guardians of liberty next to
dishonest president and dysfunctional Congress
Confirmation process supposed to produce judges who embody republican excellence –
input of Senate, representing the People (well, indirectly).
o Process is openly political and ideological and has been from the start
Judicial salaries – because of life tenure during good behavior, Congress needs
flexibility to increase whenever, but also leaves judges vulnerable to legislatures trying
to bribe/strongarm them by refusing or offering an increase.
o Uniquely protective compared to England or states
Good behavior meant what it said, unlike in England or States where
legislatures/parliament could remove a judge by special address. Unprecedented
independence.
o Adjudication of misbehavior in a judicial forum – Congress judicially sitting in
impeachment proceedings.
o Supermajority more protective than usual
o Misdemeanor = mis-demeanor = egregious misbehavior.
o Congress provided for removal in case of ordinary criminal conviction.
o Thanks to gloss of Marshall, de facto norm of life tenure – less political than it
could be and than it was before Marshall.
Limited jurisdiction – state courts filled in the gaps. Congress could decide which
federal courts had final say.
Diversity suits – potentially in federal court jurisdiction, but not mandatory because
doesn’t have the word “all” like earlier parts of the clause. Top-tier cases necessarily
matters of federal law, bottom-tier cases not.
Original jurisdiction of the Supreme Court – at issue in Marbury. Can’t expand.
o Federal impartiality in sensitive cases
o Symbolically equidistant from states/heart of nation
o No power to expand – limit cases in which we can drag everyone to the capital.
Local juries. A lot harder to do trial court elsewhere than appellate court.
Local juries – BFD. Criminal juries in Article III, but not civil juries. Really
important in the Revolution so Anti-Federalists freaked out.
o Fact-finding of appellate courts? Could they disregard juries?
o Grand juries?
o Juries used to protect patriots and nullify Colonial laws just before Revolution –
important part of polity. Britain then tried to get rid of juries as much as
possible.
One of the most democratic parts of government – literally the people
voting, lower property qualifications than most other types of
government service
No constitutional civil jury requirement – not universal across states. Civil cases would
often deal with state law, so maybe states should decide how to form their juries.
o First Congress can deal with it, with grand juries, and with vicinage.
o Appellate review of fact to review lower judge in non-jury trials.
Jury rights ended up emerging from this debate – unwritten Constitution…First
Congress secured civil jury trial, limited ability of SCOTUS to overturn findings of fact,
and proposed the Fifth, Sixth, and Seventh Amendments.
o Demand in ratification statements of 3 states
Criminal jury trial and local trial not supposed to be waivable – about rights of
community as well as rights of defendant.
o Bicameralism in each branch – grand juries and prosecutors, trial juries
and judges.
Constitution doesn’t favor imprisonment. Grand and petit juries can acquit
against the evidence. No power of a judge to overrule like in civil cases.
o At the founding, juries could interpret law. Thank god we got rid of that.
Jury nullification/review – right/duty of jurors to interpret the Constitution so as
to best follow the law and refuse to enforce unconstitutional laws.
o WHY THE HELL DO WE TRUST THEM TO DO ANYTHING?!
o Only lukewarm support in the text because it’s insane to subject a duly enacted
federal law to the judgment of 12 yokels that isn’t going to be resolved by
anyone.
Like McCulloch – some parochial community undoing what the
whole country did. Screw those guys.
o Jury lost powers, at least in civil cases – directed verdict, etc.
o Retained right of grand juries to decline prosecution and trial juries to
acquit against the evidence. AMAR THINKS THAT THIS IMPLIES
CONSTITUTIONAL COMPETENCE. NOPE NOPE NOPE NOPE.
Treason clause – no exception for civil war. SUCCEESSION STILL NOT
ALLOWED.
o Has to be tried by a real court in public
o No corruption of blood
o Broad protections for speech and dissent – only clause that used the word only.
Only aid and comfort.
Proto-First Amendent
SUMMARY:
1. Judiciary least among branches. Makes sense because it’s also the least democratic. It’s
open to political restructuring by other, more democratic branches in a way the others
aren’t. Also, don’t have much power over own branch – presidents pick judges, judges
don’t pick presidents.
2. Judicial review is a thing, even over federal statutes, which is new and an outgrowth of
popular rather than parliamentary sovereignty and a written supreme Constitution.
3. Esteem of judiciary has risen as its size has stabilized (so it’s not kosher for Congress to
interfere with it anymore), it has developed lots of “lieutenant” lower judges and
bureaucracy, and the other branches have repeatedly self-immollated.
4. Juries are really really important and the lack of assurances for grand juries and civil jury
trials led to their inclusion in the Bill of Rights after everyone freaked out. Juries played
major part in Revolution. They used to have more powers including power to judge law.
Still have right/power to acquit or not indict against evidence, which may or may not be
power of jury review/nullification for constitutional questions.
Powell v. McCormack
Why doesn’t Warren mention race?
o Everyone is aware…
o Not necessary to opinion – wants to write it without playing the race card.
o Douglass disagrees = race helps to see how dangerous this power is.
Wilkes – historical argument for why excluding people is a BAD PLAN. Helped fuel the
AMERICAN REVOLUTION. How Warren talks about an unpopular speaker and race
without playing the race card.
o Framers EXPLICITLY wanted to make sure this shit didn’t happen here.
Mootness issue? Powell wants a declaratory judgment – make it known that the
Constitution was violated against him. Amar doesn’t think mootness is a thing because
SOMETHING always happened.
Standing:
o He is the rights-bearer. His rights were violated.
o Has to be your rights violated, can’t pursue suit because you were
harmed/sad by a violation of someone else’s rights. You have the right not to
seek a remedy. Most rights are alienable.
o This case is all about the constituents, but the court doesn’t decide their
standing. Should have standing though.
Back pay – what’s the BFD? Warren uses it to avoid mootness even though that’s not
what the case is actually about.
Ripeness – standing in time. We’ll cross that bridge when we come to it (the law hasn’t
forced the clinic to shut down yet, so you’re not injured yet). Vesting moments
Speech or Debate Clause defense
o Claim – constitutional immunity from prosecution for things they do in Contress.
Well, it doesn’t apply to the doorman, so we’ll sue him. They’ll be
indemnified anyway.
Mechanism by which judicial review is carried out
Protects rights of constituents to be represented.
Exclusion vs. Expulsion
o Well, maybe they could have expelled him, but:
1. They didn’t.
2. Might not be able to expel someone for something they did in a
previous congress.
3. He didn’t get to make his case like they would have if it had been
expulsion.
4. Might not have gotten the 2/3 necessary, because only need a majority
for expulsion. They got 2/3, but might not have if they needed it because
of piling-on effect when it was clear decision would not affect the
outcome. Strategic voting.
Limits on expulsion?
Political Question Doctrine – not applicable here.
Congress has adjudicatory power only over standing qualifications (age, residency,
citizenship).
Holding: Expulsion doesn’t imply exculsion and power to judge and exclude is
limited to adjudicatory power granted in the Constitution.
o Historical arguments:
John Wilkes – important to the Revolution. Corrupt parliament, taxation
without representation for his constituents, like Americans. Also like
Powell’s constituents.
Hamilton and Madison opposed to adding qualifications to be eligible to
run due to issues of class exclusion.
Mixed record post-ratification, but for the first 100 years Congress never
excluded anyone. When they did, it was the class of Southern
congressmen elected after the Civil War when they weren’t letting black
people vote. Guarantee clause – not a Republican form of government,
and Congress is in charge of elections.
Philadelphia convention records.
Prior cases important because of framer’s intent, so earlier ones are more
important. Warren is doing originalism here.
o Structural argument: People should choose their representatives, Representative
shouldn’t choose representatives.
o Textual arguments: Article 1, Section 5. Adjudicatory powers are listed and
limited. Judging doesn’t mean making stuff up, it means applying principles
(which is why it’s so important to Warren to be originalist here).
o Textual & Structural: Expulsion requires 2/3. If you could exclude people with a
majority, that clause would be meaningless. Clauses in the Constitution are not
supposed to be meaningless. Intratextualism.
Katzenbach v. Morgan
Can’t have English literacy test – difficult, because this is NYC, not the South. But it’s
an international city, and Puerto Rico, and stuff. Congress can prohibit literacy tests in
New York even though NY doesn’t have a bad track record.
McCulloch test – broad power to enact the 14th and 15th Amendments.
Brennan’s ratchet – Congress can only be more protective of rights than courts, not
less.
o State’s rights don’t count here because the Civil War was all about states fucking
up.
U.S. v. Nixon
Everything is officially fucked.
o “The head of the freaking Justice Department is now being sued as a crook!”
Need a special prosecutor because OH GOD EVERYONE IS CORRUPT
Press blew open Watergate, everyone freaking out
Congress controlled by VERY UNHAPPY DEMOCRATS
Morrison v. Olson
Morrison – second special prosecutor in EPA case. Ted Olson refuses to hand over
documents. Reagan administration. Olson testifies to House Judiciary under oath,
allegations he lied, demand an investigation. Congress refers Olson to AG.
Scalia has it in the dissent here – unconstitutional. Executive review?
o 1. Inferior needs a superior and she has none.
Inferior must be appointed by her own superior.
o 2. Impermissibly expands power of judiciary.
o 3. Impermissibly contracts power of executive
o 4. No interbranch appointments.
Statutory interpretation & giving the AG discretionary power b/c otherwise it would be
unconstitutional.
o Not good enough for Scalia because you can’t undo a prosecution once you
started it. Still an infringement of executive power.
As long as the President is able to pardon, he can make Alexa Morrison go away.
Interbranch appointments:
o Rhenquist: judges can appoint defense attorneys. Same problem w/defense
instead of prosecution. No symmetry between defense and prosecution.
o Judges can also appoint interim prosecutors
Interim =/ permanent
Subject to control by president
Subject to Senate confirmation
Does 3-judge panel monitor Morrison?
o Yes – too much power to judiciary – unconstitutional.
o No – no superior – unconstitutional.
Scalia’s test – inferior has to have a superior. Lower court: superior can only
appoint own inferiors.
Post-Morrison
o Edmund v. US – Scalia’s dissent becomes law. Inferior has to have a
superior. Also intratextual Article III.
o Ethics in Government Act sunset – Congress didn’t adopt in 1999 b/c AG Janet
Reno says it’s unconstitutional.
Saxby Fix – Hillary can be Secretary of State, just reduce the salary again.
Precedent – Myers v. US. Congress couldn’t restrict President’s power to remove
executive officers.
Precedent – Humphry’s Executor: Roosevelt can’t fire people in FTC. Quasi-judicial
officers.
Rhenquist reinterprets these to be about the legislative veto? Huh?
ACAB Chapter 4: The President
The presidency was pretty much built around George Washington.
Absolutely no resemblance to Articles of Confederation president. Under Articles,
ordinary member of Congress and pretty much honorary.
Executive branch is now a thing!
AMERICA IS ALWAYS IN SESSION! PRESIDENT IS 24/7/365. We never go out
of session, we never go out of session…(Congress can though, which is why we need
an executive who’s always on the job. ANYONE CAN ATTACK AT ANY TIME.
AMERICA MUST BE PREPARED.)
o Immediate substitution of vice president in case of death or incapacitation of
President so AMERICA IS ALWAYS ON.
o Power to repel military invasion without asking Congress first – secrecy and
dispatch and 24/7/365 and all that.
Lincoln – suppress Southern insurrectionists. Permitted/required to act
ASAP to defend Constitution and union, but needed Congressional
approval as soon as they came back.
Executive Power – textual source of Lincoln’s power
o Not all powers enumerated in Article II – EP is general grant
Presidential titles – reinforced republican impulse against nobility.
President had much greater powers than governors:
o Veto
o Win & keep office independent of Congress (unlike prime ministers)
o Picks own cabinet.
o Commander in chief.
o Four straight years – longer than longest governor.
Presidents would be facing Senators with long terms and House members with unsually
long terms compared to states – needed a long term to hold their own. Domestic balance.
Move away from annual elections when it was proved that we didn’t need them to keep
away tyranny and we could stop overreacting.
o States then started copying when it worked in the Constitution.
Strong executive needed to stand up to other countries and monarchs. COMMON
DEFENSE. THE CONSTITUTION IS A NATIONAL SECURITY DOCUMENT.
o Short term makes it difficult to master foreign affairs issues, especially when the
other guys have life tenure.
Argument for making presidents eligble for reelection.
But in that case, needed body of electors separate from Congress,
who the President might have to oppose.
Powerful executive can check powerful legislature with authority to act directly on
people.
So, why not longer than 4, since Senate was 6?
o People were fucking terrified.
o Hopefully, the President had a national career before being the President and isn’t
starting at 0, so doesn’t need as long to learn all the foreign affairs stuff.
o Each institution had different length terms – elections staggered, providing a
rolling/more accurate picture of the democratic will.
Washington set major precedent of non-life-tenure by stepping down after 2 terms.
Unwritten Constitution – practice glossed text.
o Everyone followed this except FDR, at which point we amended the Constitution.
Realized it was in unwritten Constitution, decided to make it part of real
Constitution.
o Adams also set precedent by leaving after the bitterly contested election of 1800.
o Lincoln – held election in the middle of a civil war. Four years means four
years and elections will not be stopped for anything. Britain, WWII. (Also,
FDR – clear that there really were extenuating circumstances at work on both
sides of the Atlantic.)
o Precedent of ex-president
Ughhh Electoral College
o Framers thought that the first round – Electoral College voting – would almost
never be decisive. Top 5 would go to the House, where small states would have
an advantage (large states had an advantage in EC). This didn’t happen because
political parties.
12th Amendment once this became clear.
Geography was more important than size – North/South, mostly
because of slaves.
o Bunch of reasons why the Electoral College actually did facilitate democracy –
not an antidemocratic institution either.
Independent electors – Constitution did not permit Congressmen or
officeholders to be electors.
Populist…I know about populist…
o Why no direct elections? Idea floated at convention.
Information barriers – ordinary voters might not know enough to evaluate
candidates from far away states. Press not quite up to snuff yet. No
national information networks, but a national office created them.
Federalism – states have an incentive to boost turnout and no one knows
how to monitor/conduct an election. Voter fraud prevention? Would have
required national laws of voter eligibility.
Slavery – Slaves wouldn’t count in a direct election but could be
factored in to the electoral college vial the 3/5 clause.
Article II accommodates slavery doubly – interstate, in the Electoral College/House
allocations via 3/5ths clause, intrastate, by allowing states their own methods of
choosing electors and thus allowing SC and GA to give slave belts within their state
more weight in E.C. and House allocation.
Constitution was essentially Jacksonian – pro-democracy and pro-slavery.
Age, residency, and citizenship requirements on the Presidency:
o 35 years – same rationale as age limits for Congress. Wanted people to win on
their own merit, not sons of famous fathers. Also required dashing young military
heroes to prove themselves more.
George Washington was the natural choice for many reasons, but one is
that he had no sons.
Almost all presidents who voluntarily quit after 2 terms (rather
than losing an election) had no sons – interesting.
Keep the presidency from mutating into a hereditary office or monarchy –
had effectively been the case in many states (think prominent Yankee
families.)
o Natural born citizen (didn’t apply to foreigners already naturalized by 1787) –
afraid of some European monarch buying the American political system for fun
and ruining democracy for everyone.
Convention sessions – rampant speculation that the convention was
planning on offering a kingship to someone. Put that fear to rest,
encouraged ratification.
No European monarch had tried to take over yet, so it was fine to allow all
naturalized citizens currently to run for president.
More liberal than England, where foreign-born citizens couldn’t serve in
almost any government position.
o No religious test – influenced states to do the same.
Vice President – democratic legitimacy in the line of succession. In other places, the
take-over-guy wasn’t elected by the voters, but the VP is.
o Double balloting didn’t work when parties happened (either put your top 2
guys in a tie and threw it to the House, who might be controlled by the other
party, or opened a window for your top guy to win and their top guy to come in
second and be VP, which is dysfunction to the point of encouraging
assassinations), so the 12th Amendment got rid of it.
Provided for power transfers in the case of presidential inability, including mental
inability, which states didn’t do.
If President and VP both die, Congress has the option of calling a special election –
reaffirmed unprecedented commitment to democracy.
o Officer of the United States to hold presidency in interim – not Speaker or
President pro tempore of Senate. Needs to be executive or judicial branch.
Structural – no one could be trusted with power to preside over
executive and legislature simultaneously. Also, incompatibility clause.
No incompatibility clause for two executive branch offices.
ACAB Chapter 5: More Presidency
Presidency is powerful. Counterpoint: restrictions to make sure he remains faithful
to the Constitution/The People.
Oath of office – religious equity and constitutional supremacy
o No religious ornamentation, and administered by Chief Justice, a secular
authority. Contrary to British.
o No religious terminology – swear or affirm (you do you, Quakers!)
o Personal choice to end with so help me God. Constitution doesn’t prescribe
religion but gives broad latitude to personal religious exercise.
o Swear to uphold the Constitution, but not every law Congress passes. Supremacy
Clause. Only laws passed in pursuance of the Constitution are valid.
Executive Review.
EXECUTIVE REVIEW
o Civil laws – decline to enforce if he truly believes they’re unconstitutional.
Can always be undone by a successor
Might need Presidential non-enforcement to give someone standing to
bring a suit
PROBABLY HAS TO LISTEN TO SCOTUS IF IT SAYS THEY’RE
CONSTITUTIONAL
o Criminal laws – absolute power of non-enforcement
Not judicially reviewable
GREATER POWER TO PARDON SUBSUMES THE LESSER
POWER TO DECLINE PROSECUTION.
No one has standing to challenge – NO RIGHT TO PROSECUTION.
Advantages to non-judicial Constitutional interpretation:
o No political questions, since President does policy too
o Unitary executive (no, literally, one person)
o Democratic accountability
GO AWAAAAAAAAY.
Fixed Presidential salary at the beginning of a term to avoid Congressional bribery or
punishment. Independence from Congress generally and specifically on the issue of
calling Congress out/vetoing for being unconstitutional.
o Having a salary made the office more republican – don’t need to be wealthy to
hold it. Also can’t decline – so no soft bribery by this guy will cost the nation
less.
Antebellum veto often about unconstitutionality rather than policy.
o Judicial invalidations very rare – Marbury and Dred Scott.
Congress – all legislative powers herein granted shall be vested. President – the
EXECUTIVE POWER shall be vested. NOT ENUMERATED. GENERAL
RESIDUUM OF EXECUTIVE POWER.
o Flexibility and creativity needed – President is 24/7/365. Constitution can’t
enumerate or foresee all the contingencies he might need to deal with.
Improv government!
o Speed, dispatch, secrecy.
President head of 3 pyramids of national power – military, administrative, and
procedural.
Military : only Commander in Chief of the state militias (which were going to be the
main army) when they were called into national service. Otherwise, governors are in
control of them. Military federalism.
However, commander in chief of army and navy all the time. Can use to repel sudden
invasions or other things that need to be done ASAP for the nation without Congressional
approval.
Military power expanded over time because history. Congress can challenge:
o Refuse to fund the military
o Enact rules, but those boundarys are difficult.
President can’t pardon in impeachments.
Pardoning as national security power – Whiskey Rebellion. Reason it shouldn’t be
subject to congressional check.
Advice and Consent – President + Senate on foreign affairs (treaties) and
nominations.
o Treaties – gave the Senate a portion of traditionally executive authority.
o Senate also needs to decide number of executive and judicial slots to be filled.
Laws – bicameralism and presentment. Treaties bypass the House, the democratic
branch, so need 2/3 of Senate and Presidential approval (no Senate veto).
o Also, arguably lower priority in Supremacy clause than regular laws. Some
things are non-self-executing, so you do need the House’s approval.
Unilateral power of President to abrograte a treaty in ways that would not
be permissible with a law – Executive Power.
o Some actions might need treaty as well as law? Cessation of land. Sectional
disparity.
o Presidential power to interpret treaties in the first instance – judicial deference.
Appointments – just need a majority of Senate, absolutely need President.
o President can unilaterally remove appointees – unitary executive. Decision
of 1789 – President can fire cabinet appointments without anyone’s consent.
Appointments without fixed terms.
Doesn’t necessarily apply to lower appointments
o Presidents given more leeway in own appointments – Executive branch –
than in Judicial appointments – Congress gets to construct judiciary too.
Also, lifetime tenure for good behavior.
Leftover residuum of powers: generalist, apply all the laws simultaneously. Recognize
countries, decide when conditions in statutes have been met
A lot of gaps in Article II left open to be filled by practice – framers didn’t really
know how to make an executive. Let Washington figure it out.
Impeachment
o Involves everyone – House is grand jury, Senate is petit jury, and Chief Justice is
presiding officer.
o Adjudicatory proceeding – res judicata
o Only political punishment, not criminal
o High crimes and misdemeanors – means not doing your job, not just (or not
even) criminal conduct. President who runs off and plays golf while the nation
is being attacked = impeachable, even though he committed no crime.
o President temporarily immune from ordinary criminal prosecution while in
office.
24/7/365. No time to go to jail.
Trumped-up local charges from a state – part shouldn’t be able to undo the
whole. McCulloch.