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Constitutional Law I
Rutgers University, Newark School of Law
Boddie, Elise C.

Constitutional Law

Professor Boddie

Spring 2014

Part 1: Structures and Powers

I. Introduction

a. Constitution: Article 1

i. §1 – limitation of the power of Congress to those granted in the Constitution

ii. §8

1. Cl. 3 – Congressional Commerce Power

2. Cl. 9 – Judiciary System

3. Cl. 11 – Declaration of War

iii. §9 – Can’t suspend writ of Habeus Corpus

b. Constitution: Article 2

i. §1 – Executive Branch

1. Cl. 1 – power vested in the President

c. Federalist No. 10

i. Written by Madison (Publius)

ii. Addressed concern of factions

1. Factions are groups of people united by their interests, not the common good

iii. “Tyranny of the Majority”

iv. Solution to faction problem: Republic

1. Republic different than pure democracy – system of representation

d. Federalist No. 51

i. Written by Madison (Publius)

ii. Separation of Powers

iii. Can’t be completely separate

II. Federal Judicial Power

a. Authority for Judicial Review

i. Constitution: Article III, §1, 2

ii. Constitution: Article VI, §2

iii. Marbury v. Madison (1803) [Judicial Review of Federal Government]

1. Facts:

a. Political struggle between Adams (Federalists) and Jefferson (Republicans)

b. Before leaving office, Adams appointed new judges, including several Justices of the Peace in DC

c. Commissions for justices of peace were signed by Adams, but not yet delivered

d. Jefferson administration refused to honor appointments

e. Marbury, a would be justice, brought suit directly to the Supreme Court, seeking writ of mandamus compelling Secretary of State (James Madison) to deliver commissions

2. Issue:

a. Could the Supreme Court grant an application for a writ of mandamus compelling Madison to deliver the commissions?

3. Holding:

a. No. The Congressional Statute granting original jurisdiction to the Supreme Court for applications for writs of mandamus was at odds with the Constitution, and therefore, void.

4. Opinion (Chief Justice Marshall):

a. First, Marshall decided that Marbury and other justices did indeed become entitled to their commissions once they were signed by Adams

b. Second, Marshall distinguished between Political Acts, which are not reviewable by Court, and acts specifically required by law, which are reviewable

i. Refusal to deliver commissions was an act specifically required by law

c. Third, Marshall determined that the Supreme Court did not have original jurisdiction over writs of mandamus

i. Judiciary Act of 1789 gave the Supreme Court original jurisdiction over writs of mandamus

ii. But this statute was in direct conflict with the Constitution

d. Court has the authority (and duty) to declare any congressional statutes that conflict with the Constitution as unconstitutional and refuse to enforce it

e. Purpose of a written Constitution is to establish paramount law, so any legislative acts in conflict are void

f. Constitution was meant to be a limit on Federal Authority, so Congress cannot alter its meaning

g. Denying the permissibility of judicial review would be to say that the courts “must close their eyes on the constitution, and see only the law. This doctrine would subvert the very foundation of all written constitutions.”

5. Key Points:

a. Constitution is Binding

b. Congress cannot enlarge the original jurisdiction of the United States Supreme Court

c. Supreme Court has judicial review of the executive and legislative branches


a. “It is emphatically the province and duty of the judicial department to say what the law is”

b. Denying judicial review would be saying the courts “must close their eyes on the constitution, and see only the law. This doctrine would subvert the very foundation of all written constitutions.”

iv. Federalist No. 78

1. Judicial Branch serves as an intermediary between legislature and the people

v. Martin v. Hunter’s Lessee (1816) [Judicial Review of State Government]

1. Facts:

a. Martin, British National, has property confiscated by Virginia and sold to Hunter

b. Martin sues for ejectment in Virginia Trial Court and wins

i. Confiscation was ineffective under the Anti-Confiscation Clauses of Treaty

c. Virginia Court of Appeals reverses

i. Finds §25 of the Judiciary Act is unconstitutional

d. US Supreme Court reverses Court of Appeals decision, but Court of Appeals refuses to enforce decision

i. Claim Virginia state courts are a sovereign system, so Supreme Court can’t force them to do anything

2. Issue:

a. Does the Supreme Court have the right to review the constitutionality of decisions made by state courts?

3. Holding:

a. Supreme Court can review the constitutionality of decisions by a state’s highest court.

4. Opinion:

a. Court rejects Sovereignty Argument

i. Constitution cut back upon state sovereignty in many respects

ii. No reason to presume state judiciaries weren’t controlled by same limitations

b. Since they are interpreting a national treaty, it is a Federal Question

c. Article III, §2, Cl. 2 gives Supreme Court appellate jurisdiction

i. Virginia’s challenge is essentially to the legitimacy of the Constitution

d. There is a Need for Uniformity in decisions interpreting the constitution

5. Key Points:

a. Supreme Court has power of judicial review over state decisions dealing with Federal Law

b. Each state cannot have a different opinion on federal law because each law would operate differently depending on where you are


a. “If there were no revising authority to control these jarring and discordant judgments, and harmonize them into uniformity, the laws, treaties

b. Limits on Federal Judicial Power

i. The Exceptions and Regulations Clause

1. Article III, §2, Cl. 2

2. Way of maintaining the system of Checks & Balances

a. No uniform view of meaning

3. Ex parte McCardle (1868) [Exceptions and Regulations Clause]

a. Facts:

i. McCardle, newspaper editor in Mississippi printing Anti-Reconstruction articles, so federal government arrests him and holds him in custody

ii. Power to hold him granted by Military Reconstruction Act

iii. Challenging constitutionality of the Military Reconstruction Act

iv. Appeals to the Supreme Court based on 1867 statute allowing Supreme Court to hear Habeas Corpus pleas


. Facts:

1. Securities and Exchange Act of 1934

a. In 1991, Supreme Court ruled that action brought under Section 10(b) and Rule 10(b)(5) of the Act must be brought within a year of discovering facts leading to the violation and within 3 years of the violation itself

b. Congress amended law to allow cases filed before the decision to go forward, if they could have been brought under the previous law

2. Petitioner, Plaut, had brought suit prior to the decision, but suit was dismissed in accordance with Court’s ruling

ii. Issue:

1. Can a Congressional statute require federal courts to reopen cases that have already been decided?

iii. Holding:

1. No. Congress can only extend the statute of limitations for cases that are still pending.

iv. Opinion:

1. Congress can’t require federal courts to reopen cases that have already had a judgment entered

2. Can only pass retroactive legislation affecting cases still pending.

v. Key Points:

1. Once the highest Court in a hierarchy has issued its decision in a case, that case is not subject to any new standards that might arise

vi. Quotes:

1. “Having achieved finality, however, a judicial decision becomes the last word of the judicial department with regard to a particular case or controversy, and Congress may not declare by retroactive legislation that the law applicable to the very case was something other than what the courts said it was.”

2. Political Question Doctrine

a. Overview

i. Court should not be involved in political issues/questions

ii. Series of cases had been brought under the Guaranty Clause, which guarantees a republican form of government at the state level

iii. Court says its inappropriate for it to be involved in such cases

b. Baker v. Carr (1962) [Factors Making an issue a Political Question]

i. Facts:

1. Challenge to apportionment of Tennessee Assembly

a. Had not been reapportioned in 60 years

b. State Constitution required representation be on the basis of population, and population had greatly changed

2. Claim that the malapportionment violated the Equal Protection Clause

ii. Issue:

1. Is the constitutionality of a legislative scheme for apportionment a non-justiciable political question?

iii. Holding:

1. No. The Constitutionality of legislative apportionment scheme is not a political question.

iv. Opinion (Justice Brennan):

1. Guaranty Clause is not at issue

2. Mal-apportionment Claim:

a. To protect voters from one party, state legislature redraws legislative districts to create unequal district sizes