Janine’s All-Inclusive Con Law Outline Extravaganza

Weeks 1-2: McCulloch and general themes

ACAB Chapter 1: The Articles of Confederation Didn’t Work, so we needed a new, stronger
founding document about national security
 Constitution itself an act – words do what they proclaim
 Unprecedented system of self-governance and democracy over such a broad territorial
expanse – WE THE PEOPLE
 1787 – everyone met to consider amendments to the Articles except Rhode Island
because Rhode Island was a dick. That made it effectively impossible to get any
amendments through anyway because unanimity, so let’s throw the whole thing out and
start over!
o When Constitution was ready to go to conventions, only 2 states had ever brought
constitutions to be voted on by the people – MA and NH
 Enactment of Constitution truly did represent the People
o Extraordinarily inclusive
o Many states waived property qualifications and allowed a much broader class of
people to vote for delegates to ratifying conventions
o Many states also had broad eligibility to be a delegate – people could elect
ordinary people who thought like them
o Response to people who freaked out about new document rather than amendments
– it means nothing until it is ratified, and if it is ratified the people have made it
legitimate, regardless of the legitimacy of the process which formed it
o Unprecedented large-scale democratic action and experiment
 No people had ever voted on their own constitution before (as a country)
 Many state legislatures just sort of made their own right after the
Revolution – changed further away from Revolution. MA and NH.
 “Preamble-style popular sovereignty” – The People are the sovereign and have the
power to take back, reform, amend, etc. what they made.
o Virginia and New York ratifying statements recognized the People as the
sovereign (of the USA, not of Virginia/NY)
o Right to amend in practice – people had amended their state constitutions through
an excersise of popular sovereignty in ratifying the Constitution
o Only majority of sovereign/People necessary
o Right to change governance doesn’t require evidence of past tyranny, i.e.
Locke, Revolution. “The people feel like it” is good enough.
 Don’t have to do the old-school England/Church “oh look, I found this
rule in the 9th Century, it’s really tradition, not innovation!” thing.
 Tension between broadest base of democracy possible and how to structure a debate
among thousands – led to ratifying conventions as opposed to an up-or-down vote to
encourage debate
 “Constitution infused some form of democracy into each of its 7 main articles”
 Counter to modern argument, Constitution cared a lot more about democracy than
property (except, I would argue, slaves)
o Only reference to property is govn’t property
 o Many property qualifications waived to vote for delegates to ratifying conventions
 Followed precedent of Pennsylvania, Massachusetts, and New Hampshire
constitutions – seemed clear that constitutional elections required the
broadest popular foundation, as opposed to ordinary elections.
 So about women and slaves…basically, the act of popular sovereignty as it was was
already revolutionary, and no one had really ever included women and slaves in voting
(political rights tend to go together – military), so the Founders were just not being
revolutionary here.
o Constitution really fucked up about slavery – made special exceptions enshrining
it, and ultimately led to the Civil War which is the exact thing it was supposed to
prevent – geostrategic argument
 Article I – temporarily barred Congress from outlawing slave trade
 Apportionment gave states an incentive to keep slavery – representatives
and Electoral College
 Article IV – fugitive slave clause, in contravention of general choice of
law principles
 Article V – slavery temporarily immune from amendment
 The Union – was 13, post-Constitution, 1
o British North America not a single legal entity – everyone had their own founding
charter, laws, etc. and were as different from each other legally as Ireland and
India.
 Not only 13 – Floridas, British Quebec – original makeup could have been
different
 United by grievances against Britain when the Crown started enacting
annoying policies on the American colonies in general
 Ended up with 13 declaring independence – Georgia joined, but
not St. John’s, Nova Scotia, Floridas
o Legally separate from each other even during the Revolution, but bound by
security considerations in strong alliance
 Each state voted separately and had equal weight regardless of size of
delegation or population
 Declaration did not bind anyone absent their consent
 Needed to synchronize decisions to avoid vanguard states becoming
targets or lagging states helping the Crown
 States realized that they needed a mechanism for decision-making post-Revolution –
enter the Articles of Confederation! Wooo! Everyone’s sovereign!
o Like the U.N. or Switzerland – each state sovereign
o “retain sovereignty” – had been sovereign
o Had to be ratified by every state – no one bound absent own consent, and same
for amendments (unlike Constitution)
 Unanimous amendment scheme = hallmark of multilateral treaty regime
(think NATO), because the People of the collective states are not
sovereign, each state is sovereign
o Delegates to Congress beholden to states for money, direction
o It was a normal device of international law for states to coordinate foreign policy
and defense without giving up sovereignty
 o Confederacy = voluntary participation. Free to leave if they think the purposes of
the confederacy aren’t being fulfilled (BECAUSE RHODE ISLAND SUCKS)
o NO ENFORCEMENT MECHANISM. THIS IS WHY WE CAN’T HAVE NICE
THINGS/INTERNATIONAL LAW.
 No power over states because THEY WERE SOVEREIGN. Again, good
faith and voluntary participation. No lawmaking or requisitioning power.
 Had to keep requesting money for troops that no one paid. Also everyone
kept violating defense responsibilities – keeping standing armies, not
fulfilling treaty obligations with Britain or Indians.
o Article VII also shows sovereignty – no state bound absent its own consent.
 So about that perpetual union thing…
o GUYS NO ONE’S PAYING ATTENTION JUST GET OVER IT
o Everyone broke their treaty obligations, so no one else is required to fulfill theirs
anymore. Contractual and international law.
 Even though text said perpetual, didn’t matter – each point of treaty
conditional on rest, so once Rhode Island ruined everything, don’t need to
observe perpetual mandate anymore.
 Didn’t want to finger-point loudly because that doesn’t incentivize anyone
to join, so BLAME RHODE ISLAND. RHODE ISLAND SUCKS AND
RUINS EVERYTHING.
 Also didn’t want to finger-point loudly because each state could withdraw,
but also had international law right to stay and demand full performance
 THE STATES STOPPED BEING SOVEREIGN WHEN THEY RATIFIED THE
CONSTITUTION. I CAN’T REPEAT THIS ENOUGH TIMES.
o “Constitution,” not “league,” “confederacy,” or “other international law word.”
o Modeled after prototypes from sovereign people, like Massachusetts Constitution
o Supremacy Clause
o Amendments – states could be bound without their own consent, because The
People are the sovereign, not the states. Contrary to Articles/international
treaty practice and to method of ratification
o Anti-Federalists freaked the fuck out about loss of sovereignty. Oh Patrick
Henry. <3
 Federalists stressed the importance of states in the federal system, but
agreed that succession wasn’t allowed. Argued that that was a good
thing and would make the new Constitution stronger/work.
o Parallels to incorpororate, indissoluble union of England and Scotland in
rhetoric, texts, Federalist Papers, etc. GEOSTRATEGIC ARGUMENT –
UNIFY LANDMASS FOR MILITARY AND GEOSTRATEGIC REASONS
TO ENSURE BLESSINGS OF LIBERTY
o No state ratifying convention thought of themselves as sovereign afterwards –
Virginia and NY mention the People, not the state government
 No one was successful in imposing conditions on ratification, because
they can’t, because they’re not sovereign anymore
 I.e. NY plan, which was rejected by Hamilton & co.
 Constitution does not permit unilateral succession.
 THE GEOSTRATEGIC ARGUMENT
 o Anti-Federalists scared because there was a long tradition of state colonial
democratic self-governance and literally no tradition of massive nationwide
democratic self-governance
 Small-scale democracy: representatives were part of and knew the people
rather than mutating into Londoners
 Didn’t see much difference between colonists being represented in
Parliament and American Congress – would be outvoted, massive
differences in land, tradition, culture, etc.
o Unprecedented innovation! Wooo!
 Federalist 10 – argued that a large and diverse nation would actually better
protect minority rights, and that federal governments would do it better
than states and that large districts with fewer reps would be more effective
than the reverse – turned out to be right, but no precedent and not super
popular.
o So, let’s create an island nation, a la Britain, for national security purposes
 Protect states from foreign nations and from each other, and less war =
less chance for tyranny at home
 Create an insular condition in America
 NAVY = DEFENSIVE = GOOD = NOT TYRANNY. Constitution = no
standing army, no quartering soldiers but not sailors, fine with standing
navy & don’t have to consistently redo appropriations.
 Security Dilemma – land borders create arms races that create
standing armies that are used to repress at home. Land borders
bad. Sea borders good.
 So imitate England and Scotland and unify the whole landmass so we can
be an island. (Let’s manifest destiny this later on.)
o Not having a strong government would also invite military intrigue and
adventurism by Old World powers, possibly because of states trying to gain
advantages over each other. Unity keeps Old World powers from strengthening
foothold in New World.
o Also, disputes over Western territories.
o U.S. = Britain, Atlantic Ocean = English Channel. Worked pretty damn well…
o Better position for trade with other countries as one nation, and also in a better
position for trade with each other rather than constantly arguing. Keep states
from smuggling and then everyone going to war.
o Larger landmass = FEWER ARMIES = less money for defense b/c of lower
perimeter-to-area ratio. Also obviously don’t need to guard borders between
states.
 Law of “the land” – ultimately made geostrategic considerations necessary
SUMMARY:
1. Adoption of the Constitution by The People as sovereign was an unprecedented
democratic advance.
2. States were sovereign before the Constitution under the Articles of Confederation.
3. States were not sovereign post-Constitution and succession is not allowed.
4. Geostrategic argument – Constitution is national security device.
BLBAS 17-29: Background to the Constitution
 STATES SOVEREIGN UNDER THE ARTICLES OF CONFEDERATION
o One state = one vote
o Subject to recall by state legislatures
o Paid by home states
 Confederation = international law treaty-like thing to do security and foreign affairs
 States engaged in trade wars all the time – being part of one country stopped that
 No power to tax, just request
 States had power to issue paper money, as did Congress – it was a mess
 No judiciary or real executive
 Total economic mess post-Revolution – reasonable people wanted amendments, but it
was really hard to do so Rhode Island stymied all the reasonable people
 Convention realized they were exceeding their mandate, but there was nothing else they
could do, and ratification by The People would make the irregularities go away post-hoc.
o Common argument in American history – emergencies should prevail over
strict fidelity to constitutional norms
 Representation major debate – small and large states, slavery. Great compromise – equal
in Senate, population in House, 3/5 clause.
o Representation had to be legit because of power to directly act on people rather
than just requesting things from states
 Actual workable amendment procedures so we hopefully don’t have to do this again
 Geostrategic national security argument – protect from outside, protect from each other,
protect against tyranny. Also needed to be able to raise an army rather than limited to
asking nicely.
 Slavery compromises were everywhere!
 “Dudes, you forgot the rights!”
 Constitution of Conversation – powers and rights. Generated most debates. Not just
courts.
 Constitution of Settlement – design as opposed to interpretation. Nothing to argue about,
but shape structure of government.

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

ACAB Chapter 2: Congress

 New Congress – it could make laws! Woah!
 Old Congress was an executive council when it did anything (strongest in foreign affairs
and defense) – new Congress was legislative and Executive was executive.
 NOT JUST WHAT IT DIRECTLY SAYS IN THE TEXT. YOU CAN HAVE A BANK,
GOD DAMN IT. Implied as well as express powers.
 Specific powers to do stuff the Articles couldn’t manage, like have taxes and raise an
army.
 Bicameral – House direct democracy, Senate more represented interests of states but was
still independent – Congressional salaries paid by federal government, states couldn’t
recall Senators at will.
 New Congress more dangerous, because it could actually pass laws (specifically on
individuals). Wider scope, increased independence from states – needed checks &
balances borrowed from other places like the Massachusetts constitution when state
legislatures ran amok.
o Powerful and independent executive and judicial branches
o Bicameralism
 Limits in Constitution’s structure supposed to reinforce Constitutional powers – keep the
branches doing what they’re supposed to do and safeguard rights.
 Amar’s departmentalism – Constitution obliges each branch to defend against
unconstitutional actions within certain spheres. Not just judicial review.
o Congress – don’t vote for something unconstitutional. Oath. Each house.
o President – veto if it’s unconstitutional. Don’t prosecute if it’s
unconstitutional. Pardon if people are convicted/charged under an
unconstitutional law.
o Judiciary – grand juries shouldn’t indict if the law is unconstitutional. Trial
juries can decline to convict if it’s unconstitutional. Also judicial review.
o GAAAAAAAAAH.
 Constitution not designed to make laws unable to pass, designed to make arguably
unconstitutional laws unable to pass. (Yeah right – have you seen Congress lately?)
o System outlined in bold above, driven by two springs:
 Everyone swears oaths to the Constitution
 Congress and President need to compromise, so driven by
whichever house/President has the more scruplulous view of the
Constitution when writing legislation.
 General popularity of Constitution/constitutional fidelity
 Separation of powers helped enshrine the rule of law so Congress couldn’t be selective
dicks – laws have to be general and prospective.
o Branches other than Congress apply the laws, so they need to be good generally,
not just for them or their friends.
o Banned ex post facto laws and bills of attainder
o Congress has to apply generally, President can only prosecute under existing
laws, judiciary has to follow written laws and treat like cases alike (mostly).
o Problems in practice – Constitutional structure kept Congress from punishing
enemies, but less good at keeping it from helping friends.
 Separation of powers = specialization of labor.
 Different electoral/selection procedures at different times = arguably better picture of
electorate than picking everybody all at once regularly.
 House of Representatives – SO MUCH DEMOCRACY!
o Confederation – states could make rules for electing representatives, and
generally the state legislatures picked them.
o Constitution – direct election every 2 years. Constitutional rule – all those
eligible to vote for the most numerous branch of the state legislature = widest
popular base (without just saying everyone…so why didn’t they?). Widest
franchise in states.
 “Everyone” would have gone further than any state. Enforcement
difficulties.
 Far surpassed House of Commons.
o Democratic mandate for direct legislation on people (as opposed to Articles.)
o Legislative membership rules extremely liberal.
 No property rules and neither Congress nor states could add any
qualifications.
 Age, residency, and citizenship. Again, beat Commons.
  Also beat most state legislatures.
 Senate – no property qualifications. Beat EVERY state legislature. Beat VOTING
requirements for many state legislatures.
 Extremely liberal franchise ultimately prevailed – wanted people to like the Constitution,
and they might not vote for something that disenfranchised them.
o Influence of The People even in closed-door debates. “Often gave a decided
advantage to more democratically defensible ideas.” “The drafters’ need to win
one extraordinarily democratic round of elections in the late 1780s disposed them
to democratize subsequent Articles and subsequent elections.”
o Big talking point abroad and in ratification debate
 Membership requirements that did exist also embodied republican principles –
citizenship, residency, and age.
o Citizenship & residency – allowed for people to immigrate and become American
politicians while preventing wholesale foreign takeovers of Congress.
o State residency – prevent rich carpetbaggers. Or at least make them actually
carpetbag.
o Age – limit rich and highborn, because you’re probably only going to be well-
known at 23 if you’re someone’s son. Then sons start making contacts early and
benefiting state, and everyone has a race to the bottom to keep the same families
in power in order to get the most pork.
o Needed 2/3 supermajority to expel a member for violating these standards –
protect John Wilkes.
 Congressional salaries – also preserve democracy/prevent bribery
o Without pay, only rich people could serve
o If you had the option to decline a salary, could bribe the district that way, so it’s
now less expensive to send rich people to Congress.
o Salary came from national government anyway to prevent this and to ensure
Congressional independence.
o Amendment delaying salary changes until intervening election prevented
Congressional self-dealing.
 Regular elections – reform against English and colonial abuses of allowing Parliament or
Crown to decide elections.
o Outside limit on time between elections.
o More frequently than in Britain.
o Congress couldn’t call early elections when it suits them – prevents manipulation
by majority or potential majority.
o Actually longer electoral intervals than most states, especially for the Senate
 Traveling distance – wanted to give them time to talk to people at home
and also learn the issues.
 Senate responsibility for foreign affairs especially needed extra study time.
Also maintains stable foreign affairs stance. Yeah right.
 Actual, legitimate popular elections (as opposed to Articles selections by
state legislatures) made people go home to campaign, so you had to give
them time to go home to campaign.
 Only having one Representative required per state caused everyone to go nuts
o Larger size = delegates who are more representative, less aristocratic
 o After Revolution, many states expanded their lower houses, which was considered
democratic
o Too few members = targets for bribery and corruption, and wouldn’t need to buy
off many people to buy off the whole House. Doubted strength of Incompatibility
Clause.
o Large districts = need large profile, like Senate. More likely to elect wealthy,
well-known city men than Joe the Farmer
o Framers wanted to attract great statesmen, not randos, but understood that it
needed to be representative and that the People needed to approve it. George
Washington convinced everyone to put in an option to grow the House faster.
o In the ratification debates, Federalists promised everyone that the House would
grow soon, even though it wasn’t required to use 1 rep/30K people.
 Ended up expanding like Federalists said because people demanded it.
 Five states asked for a larger House in ratification statements
 Open Congress – more democratic.
o Not textual, only required to take roll call votes and publish a journal, but again
insisted on by the People.
o Allowed in newspapers as proxies for everyone.
o At first just House, but after 1790s, Senate too
 Constitution promised censuses every decade to keep the representation from going
rotten – staying proportional, which neither England nor the Colonies were.
o Also kept apportionment solely on population, rather than something like wealth.
 Slavery. Whoops. 3/5th compromise
o Representatives and taxes apportioned among the states by free people + 3/5
slaves
 Doesn’t specify formula for within each state – state legislatures could
choose very unequal districts. Why didn’t Constitution address this?
 Why people rather than voters? Would have looked much more
inconsistent to then add slaves.
 More slaves = more seats. Also had to pay more taxes which was
supposed to make it look less bad.
 Abolitionists would have wanted slaves at 0/5 to keep slave states from
getting an advantage from them
o Article I – couldn’t end slave trade before 1808. More time to add more seats.
Immune from amendment.
o Slave states ended up getting way more seats than free states with the same
number of free people – Congress was skewed pro-slavery, as was the electoral
college, and therefore as was the judiciary.
o Slaves = only property that is counted in apportionment. Other ways of counting
wealth rejected.
o Constitution skewed government pro-slavery in everything
 States skewed districts in favor of slave areas
 Slave states got more seats than states with equivalent free
populations
 Slave states got more electoral college votes
  Presidents and Congresses elected by the pro-slavery system
appointed pro-slavery judges
 Slave states started adopting a 3/5ths valuation in their own legislative
apportionment
 Skewed slave state legislatures then chose Senators
SUMMARY:
1. New Congress had many more powers than old Confederation congress, so also had
system of checks and balances and separation of powers to reign in those powers as well
as democratic legitimacy to justify legislating directly on people.
2. Departmentalism – one check was everybody’s fidelity to the Constitution.
3. Very democratic membership and voting rules for Congress, and those qualifications that
did exist embodied republican principles.
4. Slavery and 3/5ths compromise skewed the whole system.

ACAB Chapter 3: More Congress

 Free speech in Congress
o Article I, Section 6 protects Congressmen from being physically arrested while in
session or traveling to Congress for some civil cases – keep people from
frivolously arresting Congressmen to keep them off the floor.
o Speech or Debate Clause – can’t be “questioned” for anything they say on the
floor of Congress. Goes back to English practice.
o Private rights for Congressmen vindicating public right of people to a functioning
democracy.
o Meshed with private right to free speech in First Amendment, which was
much more protective than England, where criticizing Parliament could
actually be a violation of Parliamentary privilege. No censorship.
 Parliamentary supremacy vs. popular sovereignty!!
 Popular sovereignty – free speech required for government to work because the People
are the sovereign. Sedition Act was a major fuckup.
 British – Parliamentary sovereignty. Legal omnipotence – plenary power over
everything. No legal protections for Colonial federalism.
o Post-Revolution, Americans not super hot on idea of
Parliamentary/Congressional sovereignty – People are sovereign, and created
framework for federalism.
 Compromise between power given to states and to federal government mostly a
result of geostrategic vision for Congress/federal govn’t.
o Common defense and general welfare
o Empowered to levy taxes, tarrifs, fines, etc. to support military
o Pay debts and borrow money – to finance wars
o Commerce Clause – really intercourse clause. Interactions with foreign nations,
Indian tribes. Again, national security imperative.
 Spillover (national) problems – Congress can act. Problems in multiple
states but wholly within them (federal) – Congress can’t act.
o War, armies, navies, militias
o Naturalize immigrant
o Punish crimes on high seas or against laws of nations
 Harmonize relations between states – also important part of geostrategic vision
o Uniform bankruptcy rules, standards for copyrights and patents, uniform weights
and measures, post offices and roads, ONE CURRENCY – create one
market/nation.
 Largely didn’t have authority to act between state legislatures and citizens. Madison
wanted a federal veto over unconstitutional state laws, but didn’t make it.
o Idea that citizens would need protection from own states unpopular (Federalist
10). HAHAHA CIVIL WAR.
 CONGRESS HAS IMPLIED, NOT JUST ENUMERATED POWERS.
NECESSARY AND PROPER AS OPPOSED TO EXPRESS (Articles).
o MCCULLOCH
o Necessary and proper about other branches of federal government? First among
equals, can structure executive and judicial branches.
o Pretext Problems – McCulloch.
 Framers sometimes tried to stipulate the purpose of a power (I feel like
this is mostly going to go away under a McCulloch-like reading)
 Federal neutrality when legislating on states – can’t single out specific
states
 Proper/appropriate/McCulloch.
 So…slavery. Nothing in the Constitution expressly grants abolition power.
 Military powers – strong military while preventing tyranny
o Central govn’t could raise own army and navy and raise taxes to pay for it – no
more stupid requisitioning system.
o Nationalize state militias to execute the laws of the union, repel invasion, or
suppress insurrection
o Because powers so expansive, more balanced/divided within federal govn’t.
 Congress: declare war, letters of marque and reprisal
 President: Commander in Chief, repel sudden invasions. Secrecy,
dispatch, etc.
 Sunset rule for army funding – have to reappropriate every 2 years, and
there would be an intervening election.
 Federalism – local militias check against national army. Just the existence
of it would probably prevent the army/federal govn’t from running amok.
 For most of history, America had no standing army in peacetime, which freed us
from fears of military coups and allowed democracy to flourish.
 Prohibitions on federal and state power
o Slavery – no ending slave trade until 1808, no head tax on slaves, no tax on
articles exported from states, which was generally applicable but mostly meant to
safeguard Southern plantations.
o Keep states from making own decisions about international war
o Only Congress can appropriate funds
o Habeas Corpus
o No economic warfare between the states
o Section 10 – economic stuff. Give federal government broad power over
economy rather than having states make it up as they go along.
 o Bill of attainder, ex post facto law, title of nobility – against Congress and
states
 General and prospective laws
 Republicanism – no nobility
SUMMARY:
1. Rights and privileges given to Congressmen served constituents in general –
republicanism
2. Most of the powers of the federal government followed logically from the geostrategic
argument.
3. Federalism checks on national government due to historical unease about strong federal
government and lack of previous precedents.

ACAB Chapter 8: Articles V, VI, and VII

 Amendments were the reason for the Constitutional Convention in the first place – they
were supposed to go to amend the Articles, not to bury them, but realized that one of the
major flaws was its practical unamendability. A new document therefore had to have a
good amendment mechanism.
 Overly strict amendment clause dooms document because it can't evolve. (Hmm, sounds
familiar...Lochner anyone?)
 Helped in ratification debates – ratify, and then amend, because we can do that now.
 Most state constitutions either didn't have amendment procedures or had some sort of
legislative amendment – going back to the principle of popular sovereignty was a new
idea (but consistent).
o States with more populist constitutional ordainment (MA, NH, PA) also had
amendment processes that incorporated the voters
 Federal system: 2/3 of Congress and ¾ of state legislatures or special ratifying
conventions (Congress' choice). Have to call special convention if 2/3 of states ask.
o Congress required to get outside approval for any of their dumb ideas.
o Alternative system to keep Congress from blocking anything that limits their
power
 Just its existence could keep Congress responsive – like state militas vis a
vis the army.
o Convention proposals still need to be ratified by the states – no runaway
convention (like, you know, the Constitutional convention. Ok, that was a cheap
shot because it was ratified, but you know what I mean.)
o Can also bypass state legislatures if they're being dicks/want to prevent
themselves from losing power.
 Not perfectly drafted – lots of open questions/room for interpretation
o How do conventions work? Limited by subject matter? Legislation requiring
signature of President? What are the logistics/procedures of an actual
convention? Did anyone take 5 minutes to think about this?
o Can you amend Article V? Can you amend something to make it unamendable,
i.e. slave trade and Senate? (Try not to think about this too long or your head will
explode.)
o Are there other ways to amend? (Think MA state constitution – effectively
amended by ratifying Constitution, even though it was inconsistent with
 ratification procedures spelled out.)
 WE THE PEOPLE POPULAR SOVEREIGNTY LEGITIMACY BLAH
BLAH BLAH
 Maybe can't amend away right to amend – popular sovereignty
 BUT THEN AMENDABILITY IS UNAMENDABLE. AKHIL
STOP BEING A JERK.
 Ways to get around literal text of slave trade and Senate exceptions.
 States highly favored in Amendment process – need 2/3 of Senate, can trigger special
convention, need ¾ of states regardless of how few people they have (screw you, Rhode
Island!)
 Alternative ways to amend – principle of popular sovereignty
o Presumably, if there had been no Article V, the Constitution could be amended
the same way it was ordained. Can it still be amended that way with Article V?
Is Article V exclusive?
 Legal mainstream says yes. Akhil says no.
o Gives monopoly to ordinary government servants elected by normal, rather than
extraordinarily inclusive a la ratification procedures
o At founding, treated state amendment clauses as nonexclusive even though they
said they were exclusive, because of legitimacy of direct appeal to the People,
which likewise made the Constitution's drafting process legitimate ex post
facto.
 Maybe just because we were in a constitutional crisis so realpolitik?
 But federalism!
o Screw federalism, popular sovereignty!
 Supremacy clause is the best clause!
o Democratic gradient: Constitution, federal laws and treaties, state constitutions,
state laws
o We now have to actually obey laws/treaties because they're actual LAWS
enforceable by courts – nothing “law” under Confederation, so not enforceable in
court. In some cases state constitutions or even laws more democratic than
Articles, so not much interest in enforcing Confederation decisions over sovereign
state ones.
o CONSTITUTION IS JUDICIALLY ENFORCEABLE LAW.
 Article VI – no religious test. Also allowed for affirming rather than swearing – religious
inclusivity.
 Paying debts and honoring treaties – Article VI – made Constitution legitimate
economically and internationally. Works with earlier contract/debt clauses to get support
of powerful interest groups (hmm...I think this undercuts his earlier argument that
property was not particularly important. Couldn't the contracts clause be seen to be
privilegeing property over democracy?)
 Statutes and Treaties – legal mainstream says they're equal. Akhil says they're not.
o Supremacy Clause lists laws before treaties.
o Argument that laws are more democratic than treaties – no House.
o Principle recognized in non-self-executing treaties. Yeah, because some things
you EXPLICITLY need a piece of legislation for! Because they're not just
foreign affairs!
  Actually, Jeffersonian argument that you need a statute for anything
reserved to Congress didn't win out. Well this just makes no sense
actually.
 Problems with silent Congress – ie dormant Commerce Clause
 Look. If there are all these exceptions and the rule isn't consistent,
MAYBE THAT'S BECAUSE THE TEXT OF THE
CONSTITUTION PUTS LAWS AND TREATIES ON THE
SAME FOOTING.
o Oh yeah Amar admits that the framers had no clear idea
what was non-self-executing and what wasn't.
o Consensus on vertical supremacy of treaties over state laws, but no consensus on
horizontal effects.
 Ratification conventions and The People – democratic legitimacy of conventions vs.
referenda
o Remember, extraordinarily democratic voting and representation rules! We
know!
o One question, and voters could see the Constitution long before the vote, so
voting for delegates approximated a referendum in a way it wouldn't in an
ordinary election.
o Didn't want to use existing state legislatures because STATES WERE GIVING
UP SOVEREIGNTY and creating an actual federal government with enforcement
and stuff
o Classic outsider's game – invoke a greater authority than that held by state
legislatures with centuries of tradition, that had to have a real chance of
losing to give the Constitution legitimacy if it wins. The People!
o Modern referenda didn't exist yet – in New England, tradition of town hall
meetings and Constitutional ratification after much discussion, but no California-
style referenda.
 Wouldn't a New England-style town hall discussion-referendum have been
even better and solved the problem?
o Intracacies of Constitution needed to be debated rather than just voted on – so
again, what's wrong with the New England model? I guess it wasn't familiar to
the rest of the continent, for starters, and maybe the discussions would have been
too parochial.
 OMG SHUT UP RHODE ISLAND, NO ONE CARES. YOU'RE NOT
VIRGINIA.
o Philadelphia delegates would have had to rely on states to set up referenda, and
they might not have wanted to for many reasons including slavery.
o Ultimately, referenda not a realistic option and had to structure document with
state ratifying conventions in mind.
 Why Nine?
o Individual states aren't fucked if it turns out only one likes the Constitution.
o 9 was an important number under the Confederation – most ordinary decisions.
o Practically, critical mass. Geostrategic argument.
 More likely that important states would ultimately join if 9 others did.
o “By promising to embark with any nine crew members, Article VII ultimately
 induced all thirteen to come aboard.”
SUMMARY:
1. A workable amendments process was important to keep document from irrelevancy, as
the Constitutional Convention showed. As the adoption of the Constitution also showed,
there may be non-Article V ways to amend.
2. The Supremacy Clause established a hierarchy of judicially enforceable law with the
Constitution at the top.
3. State ratifying conventions was the most workable democratic way to vote on the
Constitution. Referenda weren’t really an option.

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.

Judicial Review: BLBAS 110-52 and class notes

Andrew Jackson’s Stupid Fucking Veto Message
 Jackson clearly doesn’t really believe in controlling judicial precedent because HE
SUCKS. Popular constitutionalism and all that shit.
o Vetoes it on constitutional grounds because he thinks he’s soooo cool that he can
interpret the constitution better than SCOTUS.
o Jackson took an oath to the Constitution tooooo you know.
Textbook
  Pre-Marshall, court honestly not that impressive of an institution. People kept leaving to
go be governors or even state supreme court justices.
 Marshall established tradition of life tenure actually meaning life as opposed to a
stepping stone to something better, court speaking with one voice, judicial review
 Did assume it had power to invalidate state legislation that conflicted with federal
statutes or treaties.
 Hinted, pre-Marbury, that it might have judicial review over federal statutes, but issue
wasn’t clear until Marbury.
 1800 election was a political shitshow in which the Federalists were repudiated, the
election went to the House, and two state militias were on alert. Once they lost both
political branches the Federalists tried to secure the judiciary by adding a bunch of circuit
judgeships and appointing John Marshall as chief justice, setting the state for Marbury.
 New Congress tried to repeal the Judiciary Act of 1801 – is this constitutional?
o Good behavior – can’t take their jobs
o Constitutional propriety of making SCOTUS judges ride circuit – they hated
it
o Also ELIMIATED SUPREME COURT’S 1802 TERM AS A WARNING SHOT
HOLY FUCK
 Jefferson Revolution
Stuart v. Laird
 Companion case to Marbury. Constitutionality of Repeal Act of 1802.
 Marshall said meep and hid in a corner. Capitulation to political branches (Jefferson was
a big fan of the French Revolution, after all…). Didn’t actually address the constitutional
issues.
Marbury v. Madison
 Still fallout from the 1800 election. If Marshall signs this writ of mandamus BAD
THINGS WILL HAPPEN (possibly French Revolution things, or best case
impeachment), but if he doesn’t sign it he’ll kill the power of his branch (which he’s
really been working on) and of his party. It’s a Kobayashi Maru.
 Marbury looking to become a judge – some minor post. Commission signed by the
secretary of state (Marshall), sealed, failed to be delivered (by James Marshall,
Marshall’s brother).
 Decision: 1. Right? 2. Remedy? 3. Mandamus? 4. Issue?
 Ultimately, decides court can’t give relief because it doesn’t have original
jurisdiction and Congress can’t expand original jurisdiction (THIS PART IS
JUDICIAL REVIEW), but puts that at the end so he gets to stick it to
Jefferson/Madison the whole opinion.
 Um…John Marshall is the trier of fact in a case where he is a firsthand witness in a
factual dispute and it’s his and his brother’s fuckup. This is a problem. He should
have recused himself, but didn’t.
 Marshall loses the battle, but wins the war that the judiciary can strike down acts of
Congress and has judicial review.
 So technically, Marbury can take this opinion to a lower court that has original
jurisdiction as pretty compelling evidence…
 o Either they rule for Marbury or it gets appealed to SCOTUS and SCOTUS rules
for Marbury and then we have our problem again.
o If Marshall issues the mandamus, Jefferson might just say no and then we
wouldn’t be able to have nice things like a judiciary.
 Best case scenario – impeachment. Worst case scenario – French
Revolution.
 Technically, MvM is a piece of paper that says Marbury is a judge, just like a writ of
mandamus would be…this argument is a bit too nice.
Textbook
 Amar doesn’t think Marbury stands for judicial supremacy – that the Supreme Court’s
constitutional interpretations must be accepted as authoritative by other branches of the
federal government. LOOK BITCH, IF YOU DON’T BELIEVE THAT THEN
SCOTUS IS AN EXPENSIVE DECORATION.
 Protestant constitutionalism = nope nope nope
 Popular constitutionalism, The People, accepted at founding, etc.
 English parliament = lawmaking and law-declaring/interpreting functions. No idea of
separation of powers/separate judiciary, so judicial review doesn’t even make sense as a
concept.
 State courts excercising a sort of judicial review over their own state laws based on their
state constitutions at the time of Constitutional convention – review was in the air.
 “Countermajoritarian difficulty”- but is it actually? And is it that different than the
other branches?
Class Notes
 Article II basically built around George Washington – when he leaves, political parties
happen and Article II goes to hell. Adams, Jefferson, Election of 1800, House of Reps,
militias, etc.
o Polarized partially because of the French Revolution – Jefferson is a big fan, it
freaks Adams out, and Jefferson freaks the Federalists out (irreconcialabiles).
o Also Federalists discredited because of Sedition Act, in which the judiciary
failed epically.
 Transformative presidents – when they come into power, the other guys control the
judiciary because they’re the Ghosts of Christmas Past.
o Jefferson – Marshall
o Lincoln – Taney
o FDR – 4 Horsemen
o Reagan – ehh, had less of a problem because Nixon softened the Warren court
o BHO – Roberts
 Judicial Review is a Thing
o Framers intended judiciary to protect the Constitution
o Constitution is higher law and ordinary law that can be enforced in court
o Federalist 78 presupposes judicial review
o Philadelphia convention records show judicial review
o First Congress presupposed judicial review when passing Judiciary Act
o Tax on carriages case – assumed that question was whether statute is
constitutional, which means they had the power to decide that issue.
 o State courts invalidated state laws based on state constitutions even before the
Constitution.
o Supremacy Clause + Article III
o Anti-Federalists wanted judiciary to strike down Sedition Act
o Can’t trust legislature to enforce limits on legislature
 A statute is not dead when struck down – it’s still on the books if SCOTUS later
decides SCOTUS had gone out of its head.
 Powell:executive::Marbury:executive

Restrictions on Judicial Review: BBLAS 1087-1091, class notes, and Powell

 STANDING – party himself must be injured in fact, must show that injury was
caused by the defendant, and that the court can give a remedy.
 POLITICAL QUESTION DOCTRINE – Baker v. Carr. Well fuck it, we’re not
addressing this (National Security all day errday). 6 factors:
o 1. Textually demonstrable commitment of issue to a political branch
(adjudicatory power i.e. impeachment.)
o 2. Lack of judicially discoverable/manageable standards
 Judges like principles and bright lines, not questions of degree
(McCulloch)
o 3. Impossibility of deciding without an initial policy determination of
nonjudicial discretion
o 4. Impossibility of court’s undertaking independent resolution without
expressing lack of respect due to coordinate branches
o 5. Unusual need for unquestioning adherence to a political decision already
made (decision to go to war)
o 6. Potentiality of embarrassment from multifarious pronouncements by
various departments on one question.
o 4-6 a little fuzzier – concerns about being less democratic after the fact.
 Judicial review – is it incidental, or is the case incidental?
 4 models of judicial review:
o 1. Ex parte Merriman – SCOTUS has basically no force. Lincoln pretty much just
ignores Taney.
o 2. James Wilson’s model – Executive review, Jury review, as well as judicial
review – branches have more co-equal role in constitutional interpretation.
o 3. Conventional – OH FUCK IT. Executive: veto, pardon, non-prosecution,
voting against laws – can do so for policy reasons, constitutional reasons. 1
branch veto.
o 4. Cooper v. Aaron – SCOTUS is ultimate and basically only interpreter of
Constitution. Executive = law clerk in chief. Executive still picks the judges
though. Privileges Judiciary.
 Through history, have moved towards a more judiciary-centric world.
o More laws, more judges
o Rise of regulatory state
o Court speaks with one voice
o Divided government – Congress repeatedly shoots itself in the foot.
 
Political branches turf tough decisions to judiciary – abortion, affirmative
action
o WATERGATE AND VIETNAM RUINED EVERYTHING.

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.

The Civil Rights Cases

 About the Civil Rights Act of 1875 – no racial discrimination in business and
accomodations. If it’s open to the public, you take all comers.
 Majority: Exceeds Congress’ power to legislate under the Reconstruction
Amendments.
o Textual arguments:
 14th Amendment is about the states (state action), not about private
enterprises.
 Against 10th Amendment.
o Not included in “badges and incidents of slavery” under the 13th Amendment –
14th Amendment was about civil rights, 15th Amendment was about political
rights, and these are social rights which are not covered under the amendments.
 HARLAN DISSENT WHAT UP!
o Historical: Fuck you, we literally fought a war over this.
o 13th Amendment does apply – not limited to state actions, and these are definitely
badges and incidents of slavery.
o 14th Amendment can still apply – these are public services/accomodations, so
quasi-public services.
  First sentence of the 14th Amendment is about citizenship. “State” doesn’t
appear. These can be rights fundamental to citizenship.
 Section 5 – Congress has power to enforce equal citizenship.
o 14 Amendment – can treat state inaction as state action. There’s an obvious
th

problem that states won’t address SO WE MAKE THEM AMERICA FUCK

YEAH
o Commerce clause? Not sure if he actually said this or if it’s just in my notes.
 Appropriate – McCulloch argument – Necessary and Proper extension cord.

South Carolina v. Katzenbach

 Upholds striking down literacy tests under the Voting Rights Act
 Problem – Previous decision upholds them
 Answer – Congress has more sweeping power here than the court acting alone,
bolstered by findings of fact that the court striking down discriminatory tests one by
one isn’t fucking working. Can invalidate things pursuant to a statute that they
wouldn’t invalidate as matters of their own constitutional interpretation.
 Original jurisdiction.

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.

Jones v. Alfred Mayer

 Black couple looking to buy/rent property, could not do so because of redlining. Brought
suit under federal statute prohibiting racial discrimination in private real estate
transactions.
 Commerce clause won’t work here – land doesn’t move, it’s not interstate commerce.
 13th Amendment badges and incidents argument – purpose was to eradicate slavery
and related institutions.
o Historical argument – original intent
o Congress is empowered to go beyond by the Enabling Clause. Section 2 goes
beyond Section 1 – McCulloch.
 OVERRULES CIVIL RIGHTS CASES SUB SILENCIO.
o Footnote 66 – kind of sidesteps saying it directly. “We didn’t drive a stake
through his freakin’ heart and now he’s back!”
 Stewart – framers of the 14th explicitly invokes McCulloch

City of Boerne v. Flores

 RFRA unconstitutional in state form
  Nondiscrimination: 2 ways to impolement
o 1. Only ban laws that are facially anti-religious – de jure
o 2. Effect of disproportionally disadvantaging one group – de facto
 RFRA – second method, unless compelling governmental interest & least restrictive
means.
 SCOTUS here takes the narrow view, previously took broad view. RFRA made to
restore old SCOTUS doctrine.
 Smith – changed mind. Peyote case. Congress was displeased and passed RFRA.
Restore court’s previous test. Sometimes discrimination is hard to prove, so fuck you
guys.
 Congress can’t impose RFRA on states. Since I hate religion, let’s analogize this to
Congress not being able to enact broad antisubordination antidiscrimination law.
 Establishment clause objection – THANK YOU STEVENS <3
 Not separation of powers/Marbury. Structural – violates federalism.
 Kennedy has feelings. Thinks Congress can’t go beyond the Courts. Completely goes
against Jones v. Alfred Mayer, Brennan’s ratchet, all of civil and voting rights law in the
20th Century…
 Reconstruction amendments drafted by Congress for Congress in light of
McCulloch against Dred Scott. Congress was specifically intended to be able to go
further than the court because they had seen what the Taney court did to the
country. (Hint: it was a civil war.)
 Congress can do badges & incidents (has section 2), Court can’t, Kennedy is
textually and historically DEAD WRONG.
o This is why we can’t have nice things.
 States’ rights win out here in a way they never could have done under the Warren Court.
Against Jones.
 **AMAR’S 14TH AMENDMENT THEORY – Congress has power to vindicate
birth equality when birth status creates pervasive governmental discrimination
and/or social discrimination.**

Shelby County Alabama v. Holder

 Differential treatment – Katzenbach. Also, 14th Amendment.
 Old baseline – can bail out if you’re fine, can bail in if you screw up, and the old
Confederate states keep fucking up.
 GET NOTES FROM SOMEONE COMPETENT
 Roberts says NOTHING in response. (To what? What does this even mean?)
 It’s about whether you believe in the reconstruction, not the founding. Originalists
should properly go to the history of Reconstruction amendments.
 Transformation from Congress shall make no law to Congress shall have power.
Revolution -> Civil War – this time the federal government is the good guys.

AUC Chapter 9, first half: Congressional powers of oversight and self-regulation

 Institutional practice (Congress, SCOTUS, administrative agencies) routinely goes
beyond the Constitution but rarely goes against it.
o Practices gloss and clarify text.
 Congress: lots of powers that are not clearly enumerated but are established by practice.
 Congress can investigate anything, and in certain circumstances has power to be
prosecutor, judge, jury, and jailor. (Incarcerate uncooperative witness, punish
contempts against itself.) Contempt of Congress.
o Judiciary has limited power to free a detainee found to be in contempt of
Congress. If within proper Congressional adjudicatory power, can’t reverse the
judgment as long as Congress follows its rules.
o Can make arguments by implication/history/structure either for or against
investigative powers. Text not conclusive, but glossed by practice almost
immediately.
 Judiciary endorsed powers – Teapot Dome scandal, declared that
Congress has power of inquiry when witness refused to appear. If the
meaning is doubtful, institutional practice should be taken as fixing
the meaning of the Constitution’s provisions.
 But can’t contradict, see Washington’s federal crimes by executive
order.
o Anderson v. Dunn, Marshall court upheld contempt powers – still exist even
though most contempt proceedings now go through Article III.
 Early institutional practice considered dispositive for both Congress and the Executive.
Therefore, Amar thinks that this proves it’s a neutral guidepost and not biased. Also
some judiciary stuff about implied power of federal judges.
 Executive privilege implied by early Washington practice.
o Marbury – both sides recognize privilege of keeping confidential stuff secret.
o Structurally similar to Senate cloakroom conversations and confidential SCOTUS
meetings – parallels in other branches. Also necessary for discharge of public
functions (need to be candid when picking potential appointees, etc.)
o Textual: “executive power”
o Boundaries may vary depending on the context. One of those sliding scale things
Brilmayer hates. 
 So – congressional inquest vs. executive privilege? Explosion! (insert Theo’s video).
 Recess appointments. Text is ambiguous – ALL appointments (including
judges/SCOTUS) until next session conflicts with Good Behavior.
o Resolved by practice – Presidents can appoint, Senate can confirm or not, and
judges can issue rulings in the meantime. (But do and should they have as much
precedential value?)
 Legislative turnover. Generally works ok, but when it doesn’t, Senate has 2/3 left over
to judge whether new members were duly elected. House more problematic since it’s not
a continuing body. How to set up who judges, who makes the rules, etc.
o Post-Civil War elections – Southern representatives excluded because not
republican form of government because they wouldn’t let black people vote.
What right did Northern House members have to judge?
 Possibilities: Old house could designate official to organize, but authority
probably lapses at end of session. Old House could certify new House
during lame duck, but that’s democratically awkward if it’s heated (think
election of 1800). Let’s have the Senate do it! But no clear textual
 authority, even if you can imply some structure. Also President, but also
democratically awkward and no textual power.
 Since no one can do it separately, everybody work together! Congress
passed a law to have the old House clerk call the roll on the first day.
 How to decide size of House:
o Smaller than Senate – arguably unconstitutional. Post-ratification debate insisted
on more than 100. Might not have been ratified otherwise, promise was thus
binding/UC.
o Hard to shrink, because someone would have to lose their seat. Fixed now, can’t
really shrink.
 SCOTUS – much more textually specified power for Congress to mess with size, less
constrained. Size changes have been very political.
o More a problem with restructuring court, because of John Marshall precedent of
one united court, and post-ratification precedent of not acting en banc. This
is kind of a dumb argument. Just because they’ve always done it this way doesn’t
mean it’s unconstitutional to tell them otherwise… “One supreme Court.”
 Unwritten rule of voting = majority. This is actually real – ratifying conventions
(even when seemed against state constitutions).
o Fillibuster should be able to be abolished by a majority. But why not go further
and just say that any filibuster is invalid?
o Congress & SCOTUS:
 Obvious math.
 Locke – majority = natural default principle of all assemblies. Locke
important in Revolution, Ratification history also agrees.
 Whenever the Constitution wants someone to decide something by a not-
majority, it specifies. Therefore, majority is the default.
 Enactment.
o Probably unconstitutional to make SCOTUS change from majority rule.
 The Filibuster
o Not approved by every Senate, carries over by inertia on the theory that the
Senate is one continuous body (which, I should point out, Amar used himself).
 However, Senate leaders can be ousted by majority vote at any time,
and this should also apply to Senate rules.
o Constitution requires majority rule, filibuster is preventing the Senate from
being ruled by a majority, must have a majority able to change it. P. 363
 SCOTUS case upholding majority rule as general rule for Congress
 Legislative precedent is unclear
 Nuclear Option
 British constitutionalism – one parliament can’t bind a later one (but
Senate is continuing body)

Weeks 5-8: The Executive Power

United States v. Cox

 Court doesn’t tell us the facts until the end – not playing the race card, at least not right
away.
 Cox – federal district judge. MASSIVE RACIST. Was in deal to get Southern senators
to confirm Thurgood Marshall to the Supreme Court
o Footnotes saying “negroes” – prosecutes them for perjury but not the white guy.
 He’s a tyrant. Wants to prosecute, gives the AUSA 1 hour to decide either to sign or be
held in contempt. Grand jury will do it.
 Katzenbach tells Hauberg not to sign – K speaking for RFK who’s speaking for JFK.
o “Doing that against direct orders from the President? You better damn well be
right.”
 Provisions at issue:
o FRCP 7 – not mandatory, not authentication. How could he authenticate the
grand jury’s proceedings, he wasn’t even in the room!
o FRCP 48
o 5th Amendment
 Wisdom & Majority – the jury is a shield for the defendant, not a sword.
Can acquit, can’t force prosecution. Dissent = swort.
 Historical – jury not able to compel indictment
 Structural – in bill of RIGHTS, not bill of let’s prosecute people
 Structural – checks and balances – executive check on a runaway grand
jury.
 Textual – turn of the clause in 5th Amendment.
o Article II
 Holding: 7 – can’t force to prepare or sign. 1 – can force to pepare, but not sign. 3 –
can force to prepare & sign. 5th Circuit sitting en banc.
 FRCP 7 Dissent – he can rescind under 48, and then the refusal is in open court.
o Yeah, but needs the leave of the court for that. That’s terrifying and Cox
wouldn’t grant it and it’s not automatic so can still force prosecution.
 Wisdom – that reading would violate Article II. CAN’T MANDAMUS
PROSECUTION.
 Judicial review not always/usually about invalidating statutes. About construing
statutes to avoid unconstitutionality.
 Arguments for non-prosecution:
o They didn’t do it
o Indictment would expose them to unfair process (the jury is racist)
o Mississippi v. Nation – the executive has to care about broader considerations.
Like the national security impact of how this plays in the Soviet Union.
 President has to enforce ALL the laws at once, which might entail not
enforcing this law against this person.
o Need them for witnesses to prosecute other crimes.
o National security issues – COLD WAR. Getting our asses kicked in the third
world, and they’re black and brown, so we need to stop having a racist
apartheid state.
 Checks on Presidents refusing to enforce the law:
o Publicity
o Vote the bum out
o Congress can complain/hold hearings
o Press
 o Grand jury presentment
o Impeachment

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

 Advisers to the President are being prosecuted. Nixon is an undicted co-conspirator.

Need tapes, subpoena Nixon.
 Special Prosecutor – meep
 Grand Jury – co-conspirator – presentment – can’t be sued.
 Jaworski – special prosecutor appointed by AG because Nixon fired the first guy –
Archibald Cox. Saturday Night Massacre by Robert Bork. If Nixon doesn’t toe the line
this time, he’s probably going to get impeached.
 Archibald Cox (Kennedy) – Person Nixon hates and fears more than anyone else in the
world. He’s THAT WEAK that he has to pick him for credibility.
o Robert Bork (SG) fired him. He was Acting AG because the AG and deputy AG
resigned rather than fire Cox. Amar thinks there was a deal. “We can’t resign all
the way down. Then the country will be in a crisis, and Richard Nixon will have
no adult supervision…”
 Bork changed the regulations so next guy could only be fired for extreme improprieties.
o However, the regulations can instantly be changed back by the AG, who
reports to the President.
 Nixon can fire AG, get one who revokes regulation, fired Jaworski, and pardon
everyone, but then he looks REALLY corrupt. Impeachment in 2 moves.
 Regulation is almost a promise, but it’s constitutional because it can disappear at any
time.
 Cox problem – if Executive can’t be compelled to prosecute, why can he be
compelled to produce evidence?
o Cites U.S. v. Burr, but that’s about the rights of the defendants, and as we just
discussed, there’s no right to prosecution and defense and prosecution are not
symmetric.
 Your call – either produce the exonerating evidence or dismiss the
prosecution, because no one has a right to prosecution.
 Court recognizes an executive privilege – structural, Marbury, AUC Chapter 9 –
but says it doesn’t apply here.
 Historical argument about secrecy – Constitutional Convention was secret. President
can’t do his job without secrecy.
 Um…why doesn’t it apply here?
o Right to protection of evidence – 5th and 6th amendments. Makes no sense .
Defendant’s rights
 o Aaron Burr – also defendant’s rights. Exculpatory evidence. President’s call ot
give info or drop case because no right to prosecution.
 Saving grace – Nixon can pardon everyone or fire everyone.
 Should have brought in the fact that the court has evidence under seal pointing to Nixon’s
guilt. Precedent doesn’t make a ton of sense for honest presidents.
 “And you all don’t trust even honest presidents because you are all children of
Watergate and Vietnam.”
 This ruling raises a McCulloch problem about power of state prosecutions over President.

 Ford pardons Nixon – should have demanded admission of guilt as a condition.

 Carter gets elected for being an honest Sunday school teacher.
o Presidency often defined in contradistinction to the previous person.
 Carter pardons all the draft-dodgers
 For partisan or personal advantage, ex-Presidents can be prosecuted according to Amar’s
theory (not sitting presidents).
 Jimmy Carter’s never lie to you platform – Ethics in Government Act, which brings us
to…

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.