Constitutional Law Outline

Constitutional Law Outline – Abrams – Fall 2004

I. History and Text – The Power of Judicial Review A. Constitution – is a general charter and a limitation on Federal Power, 13-15th are limits on state power as well. B. 3 Parts to this Course: Judicial Review, Individual Rights, and Structure of Government C. Constitutional Framework/Outline: 1. Article I – Congress [10 Sections within this Article] a. Section 8 – [1]“The Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.”
25th – VP is 2nd in Line z. 26th – 18 to vote aa. 27th – Can’t vary $ compensation for Congressman until election 4 reps have intervened – was to be 1st Amendment but couldn’t get 3/4ths of states until 1992 – should the previous OK states still be bound by that OK from 200 years ago? D. Difference between Constitution and Statute 1. Constitution = general charter, oldest living Constitution in the world – UK doesn’t have one and France is on 5th or 6th. Written in 1787 and took effect in 1789. 1791 is when Bill of Rights took effect. 1781 – 1789 Articles of Confederation. 1) Durability (enduring) 2) Amendments (difficult to amend – only 27 since 1789 and 17 since 1791 and 3 were forced on states so really only 14). 3) Constitution is anti-majoritarian unlike statutes – “We the People” – wants to tie the hands of MAJ to keep structures of gov’t from being changed: ex: Even if say something 99 people hate, they can’t arrest you – MIN wins out from Bill of Rights. 4) Breadth – Much broader language, goes back to durability – often very vague language to stand the test of time. This leads to debate over terms – Original Intent (look to intent to decide on meaning of terms) v. Living Constitution (look to contemporary norms 2 decide
Flast v. Cohen – Washington asked for legality of things they wanted to do – SC refused, can’t answer abstract questions posed to it. If questions are outside of scope of issue, can’t answer. Case or controversy needs to be in a role consistent with a system of separated powers and which are traditionally thought to be capable of resolution through judicial process. D. Advisory Opinions bad b/c (1) Adversarial position is missing – ct will come up with better opinions and answers when 2 parties raise arguments on both sides. Hard to predict future consequences w/o adversarial and party’s briefs. (2) Cts are enforcers or implementers, that’s a check – separation of powers works best when Cts not pressed into service by other branches. The theory is premised that there is judicial review by unelected judges who are not going around looking 4 cases. Why Good? (1) may get answer quicker and w/o litigation (2) could still permit but deny in some situations. E. ERIE diversity – what if state hasn’t spoken on issue for Fed to apply state law? Generally, ban on advisory opinions in all 50 states but 45 have exceptions for states to request advisory opinion – gives state SC an oppty to speak on it b/f fed or other