Big Theme of Constitutional Law I: Powers & Limits of Government…and the Role of Courts First Class Meant as Big Picture OVERVIEW of Powers & Limits: Essential Basics About the National Constitution Creates and organizes the Federal Government (creates branches, defines their powers, checks & balances/ separation of power) Defines & Distributes Certain Powers to National Government  design based on Federalism… balance b/w fed & state power Establishes some express and some implied limits on both National & State Governments Critical implicit limit: Fed Gov. is one of limited, enumerated powers… but supreme in its sphere Distinct set of limit created through recognition of Individual Rights  Anti-majoritarian limitation on not simply Governments but also democratic choice Class will progress through each of these in detail  powers & limits of federal branches; state vs federal power; individual rights Through it all  Disputed Role of SCOTUS & Judiciary  Unelected, unaccountable judges interpreting a meaninglessly vague text vs independent protector of individual liberties…and of states’ rights??

First Substantive Topic: Federal Judicial Power & It’s Limits Defining Federal Judicial Power….Starts With Power of Judicial Review Judicially Declared in Marbury vs Madison Final Authority on Interpretation of Constitution & Power to Declare Acts of Federal & State Governments Unconstitutional Includes: acts of public officials, all federal law and state legislation & constitutions Power of Judicial Review & Different Approaches to Interpretation The Dilemma  Ambiguous or open text….the meaning of which must be interpreted but when unconstrained by clear text = personal values of individual judges Judiciary is UNDEMOCRATIC institution (Life tenure, unelected, unaccountable) BUT: Leaving Constitutional Meaning up to Legislature & President is also problematic  swayed by public opinion & short term political interests, leaves individuals & minority groups unprotected…need for independent check on the political branches & excesses of the majority COMMON APPROACHES TO INTERPRETATION (reflecting judge’s viewpoint on proper role…but often simply disguised politics) Originalism  only if clear from text, or framer’s intent…strictly interpret from historical viewpoint Vs. Non-originalist  text interpreted in light of evolving standards, left vague on purpose (mostly stated as general principles) Factors  text, intent, history & tradition, modern social consensus (state practices) Alternatives? Bigger court, retirement, super-majority voting on Constitutionality (overturning legislation) Original spin on Colbert: A good Supreme Court justice is a Constitutional scholar first and a time traveling mind reader second. Original spin

Beyond Judicial Review: Defining Federal Judicial Power Under Art. III Article III Framework for Judicial Power (Essentially Jurisdiction…power to hear and decide)  look at text 1. Cases & Controversies…more today on this in form of “justiciability” doctrines Arising under…FEDERAL LAW (statutes, treaties, Constitution), admiralty, miscellaneous sensitive cases (ambassadors, state v. state, Fed. Gov. as party) & Diversity Cases 2. Article III as CEILING…details provided by Congress  Congress defines the jurisdiction of the federal courts within the confines of Art.III…e.g., amount in controversy for diversity cases, even original jurisdiction of SCOTUS S. Ct: Essentially all appellate …currently by statute entirely discretionary via writ for certiorari  cases come from federal circuits & state court decisions involving federal law 3. Limits on Power of Judicial Review: important distinctions  Power is as to Constitutionality (all levels of gov. action) Court has final say, authority, over what the Constitution means Otherwise: Court’s function is to apply the law as Congress intended…for ordinary legislation this means Court’s decision can be reversed by Congress

Respective Roles (POWER) of Fed versus state courts 4 points/variations: 1. FED JUDICIAL POWER & STATE LAW NB: Federal Judicial Power covers ONLY federal law, including constitutional/federal statutory issues  but not state law! STATE COURTS HAVE FINAL AUTHORITY OVER MEANING OF STATE LAW….(BUSH v. GORE!?) Note: In Diversity Cases Federal Courts must apply state law as interpreted by state courts 2. Federal Court authority over State Courts FOR PURPOSES OF FEDERAL LAW  Martin & Cohen Cases in book (note reasoning of Justice Story – need for uniformity, lower fed. Cts are optional, federal law=federal courts) And binding on all State Government Official…Ky Clerk of Court who opposes same sex marriage? (Note Cooper v. Aaron case in book…Little Rock desegregation dispute) 3. NB: FEDERAL LAW IS SUPREME AND CONTROLS OVER CONTRARY STATE LAW (in all its forms including state constitutions)….odd spectacle of state officials “rejecting” affordable care act, prohibiting application of S. Ct decisions = F in Con Law 4. State Courts & Federal Law : State Cts have final authority over state law……do state cts have to apply fed law?...must also follow and apply federal law when it is relevant to/controls disputes since it is supreme but defers to federal court interpretations Fed Constitution versus state law protections,  Special Case of individual rights …fed constitution as the floor…state constitutions can provide greater protections (potential for independent greater protections under state law and constitutions) 4 th Amendment illustrations