Constitutional Law Outline
The Role of the Courts in Constitutional Interpretation
I. Judicial Review and Constitutional Structure
a. The origins and theory of judicial review
i. Marbury v. Madison: Establishment of Judicial Review
1. Power of courts to declare legislation or executive acts invalid as unconstitutional
a. Implied power of the court
2. Opinion
a. Marbury had a right to his commission.
b. Marbury had a judicially enforceable remedy because
i. Court provide a remedy for every wrong BUT
ii. Political acts of the President and cabinet done within their discretion are not reviewable by the court.
c. Marbury was not entitled to mandamus by the Supreme Court
i. The act was unconstitutional because it gave the court original jurisdiction, contrary to the Art. III grant of jurisdiction over diplomats or between two states. When a statute and the Constitution conflict,
1. Constitution, as a higher law, prevails
2. It is emphatically the province and duty of the court to say what the law is.
d. Justifications for Judicial Review
i. Inferred in a written Constitution
ii. Necessary to the judicial role of interpreting law
iii. Implied from the command of the supremacy clause that the Constitution is the supreme law of the land
1. Binding on the state courts
iv. Article III gives federal courts jurisdiction over cases arising under the Constitution
v. Implied from the fact that judges take an oath to uphold the Constitution.
ii. Judicial Review of State Statute
1. Planned Parenthood v. Casey
a. Plurality Opinion—Reasons for upholding the central holding in Roe v. Wade
i. Precedent—circumstances in Roe have not changed since that decision, thus no reason to overturn the decision.
ii. Covenant—Court stays true to the covenant, the fundamental right of all. If the court stays true, those who disagree with the outcome cannot argue that the court abandoned the covenant.
iii. Credibility—overruling Roe, absent some clear error, would undermine the judicial power
b. Dissenting Opinion—nothing in the Constitution supports the idea that abortion is a fundamental right.
i. Invalidating the PA statute removes the issue from the democratic process by cutting out the will of the people and substituting the court’s will
iii. Judicial Exclusivity in Constitutional Interpretation?
1. Cooper v. Aaron
a. Court’s power to interpret the Constitution is exclusive when the other contender is a state.
b. Less clear when the contender is congress or president
i. President has some practical discretion in enforcing Supreme Court decisions, but not absolute discretion
ii. Legislature can always reenact a statute that has been invalidated by Court within constitutional limits
b. Power to Review State Court Judgments
i. Martin v. Hunter’s Lessee
1. Court has the power to review federal constitutional decisions of a state’s highest court
a. Article III grants appellate jurisdiction over all cases arising under the Constitution
i. The Court must decide those that arise from the state courts
ii. The supremacy clause implies that state courts will decide federal constitutional issues
iii. Since Article III does not distinguish between constitutional cases originating in federal court, and those originating in state court, it is implied that the Supreme Court has appellate review over those originating in state court.
b. There is no state sovereignty over constitutional interpretation
i. The Constitution abrogates state sovereignty in a number of ways
ii. Supremacy clause indicates that judges are bound by the Constitution
c. Uniformity
i. If every state court could interpret the Constitution its own way, there would be 50 constitutions, not one
c. Adequate and Independent State Grounds Doctrine
i. Michigan v. Long
1. Court will not review state court judgments that rest on adequate and independent state grounds
a. Insulates state judicial decisions from Supreme Court review
b. Preserves state sovereignty
2. The Supreme Court will presume that a state court, when deciding cases that present both federal and state law issues, is deciding the case based on federal law UNLESS the state court includes in its opinion a plain statement of its reliance solely on state law.
a. State constitutions usually afford more protection than the minimum safeguards imposed by the Federal Constitution.
b. EXAMPLE—Warrantless searches of garbage bags on the street are valid under federal law. If a state Supreme Court rules that warrantless searches of garbage bags violates the state Constitution, the Supreme Court is barred from reviewing the case.
3. Application of the Doctrine—The Supreme Court may still decide that the state law was not independent of federal law or was not an adequate basis for a decision, even if the state court includes the “reliance statement” in its opinion.
a. The decision must Adequately rest on state law.
i. EXAMPLE of inadequate decision—Where state procedural rule bars consideration of a federal claim, state law ground for decision is inadequate if
1. Law was created with the intent of barring the federal claim OR
2. Unreasonable interference with federal rights.
b. The decision must be Independent from federal law.
i. EXAMPLE of decision that is not independent—Where state court finds that a state law violates the state Constitution but treats the substantive contents of the state Constitution as defined by the Federal Constitution.
1. State determines state tax liability by using a federal standard to measure the claim
2. Distinguish opinions that cite federal cases as a guide, not to reach an outcome.
d. The Pros and Cons of Judicial Review
i. Counter-Majoritarian Role
1. Congress represents the majority and is often intolerant of political minorities
2. The court is better equipped to decide validity of legislation because the court is immune from political pressure
a. Constitutional rights often intend to protect political minorities
ii. Stabi
. Congress Specifies
4. Issues that arise
a. Noncontemporaneous Ratification
i. Is there a time limit on ratification? See U.S. Const. amend. XXVII.
b. Convention Calls
i. Rare
c. Rescission Before Ratification
i. Congress or court, which ultimately decides to consider the rescission?
1. Usually congress
d. Unconstitutional Amendments?
i. Amendment is valid so long as the procedure to amend is valid.
ii. Appointment
1. Article II § 2—justices appointed by the executive with advice and consent of the senate
a. Justices serve way past immediate issues
b. Presidents make mistakes in appointing justices
c. Requires many vacancies to dramatically change the Supreme Court
iii. Impeachment
1. Article IV § 2—all officers of the United States are subject to impeachment. Only one Supreme Court justice has ever been impeached, but that was unsuccessful.
b. Congressional Power to Control the Jurisdiction of the Federal Courts: (1) Power to make exceptions and regulations to the Supreme Court’s appellate jurisdiction and (2) Power to establish inferior federal courts, which implies the power to limit their jurisdiction
i. Power to establish Federal courts
1. Article III § 1 locates the federal judicial power in one Supreme Court and “in such inferior courts as Congress may from time to time ordain and establish.”
a. Permits congress to possibly eliminate all inferior federal courts
b. Permits congress to limit the jurisdiction of inferior federal courts
ii. Exceptions to and Regulations of Supreme Court Appellate Jurisdiction
1. Article III § 2—grants Supreme Court with appellate jurisdiction of all cases within the federal judicial power
a. Not those which it has original jurisdiction
2. With such Exceptions, and under such Regulations as the Congress shall make.
a. Ex parte McCardle—McCardle was a newspaper editor imprisoned by the military governor of Mississippi. Under a federal statute, he sought habeas corpus in federal circuit court, arguing that the Reconstruction Acts were unconstitutional. He lost, and he appealed to the Supreme Court. After argument but before the decision, congress repealed the statute that gave federal court jurisdiction over McCardle’s habeas petition.
i. Congress can strip the Court of its appellate jurisdiction.
1. Congress may have exceeded its authority if it attempted to eliminate ALL federal habeas jurisdiction.
