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Constitutional Law I
Rutgers University, Newark School of Law
Bell, Bernard W.

Constitutional Law (Spring 2016) Prof. Bell


Marbury v. Madison
: Marbury (plaintiff) appointed Justice of the Peace of the District of Columbia by President Adams at end of Adams’ presidency. When the new president, Jefferson, assumed office, he refused to fully finalize Adams’ appointments of Marbury and several other appointees. Relying on Section 13 of the Judiciary Act of 1789, Marbury then brought an action in the United States Supreme Court against James Madison (defendant), Thomas Jefferson’s Secretary of State, seeking a writ of mandamus to compel him to finalize Marbury’s political appointment.
Does Marbury have the right to his judicial appointment?
If he does have a right and that right is violated, does Marbury have a remedy under US law?
If Marbury is entitled to a remedy, is that remedy a writ of mandamus as outlined in Section 13 of the Judiciary Act of 1789?
Yes. He was lawfully appointed to that position by the President’s act of signing his commission, further enforced by his confirmation in the Senate.
Yes. Marbury is entitled to a remedy under federal law. The appropriate remedy depends on whether Marbury is merely a political agent of the President (not reviewable), or whether his commission has the effect of giving him a specific duty assigned by law (reviewable). Marbury was appointed by a legal act of the President. He was given legal title to the office of Justice of the Peace for the duration of his appointment. Thus, Madison’s refusal to finalize Marbury’s appointment interferes with Marbury’s legal title.
Writ of mandamus would have been appropriate under Section 13 of the Judiciary Act of 1789, but the Act is unconstitutional. The Act allows the Supreme Court to have original jurisdiction over actions for writs of mandamus. This provision directly conflicts with Article III of the Constitution, which greatly limits the cases in which the Supreme Court has original jurisdiction and provides it with appellate jurisdiction in all other cases. The Act is unconstitutional because it seeks to expand the Supreme Court’s original jurisdiction and therefore jurisdiction over Marbury’s claim cannot be exercised.

Supremacy of the Constitution: If SC identifies a conflict between a constitutional provision and a congressional statute, the Court has the authority (and the duty) to declare the statute unconstitutional and to refuse to enforce it. Any act of the legislature repugnant to the Constitution must be void. “It is . . . the province and duty of the judicial department to say what the law is.”

Theories for Judicial Review
Judicial Monopoly Theory: Distinct separation between political and legal issues. Judicial branch focuses on the Constitution. Executive and legislative branches focus on policy. Constitutional questions need a single, final arbitrator. Opinions of court are determinative.
Tripartite Theory: Constitutional and policy questions are not entirely distinct. Constitutional questions must take policy into account (i.e. policy views of public). Sole reliance on courts presents difficulty (delays).
Counter-majoritarian difficulty: Lifetime judges insulate SC from democratic control to protect the rights of minorities. However, Court is subject to political influence and the will of the people.

Jurisdiction of Federal Courts in Constitutional Cases
General principle: SC may exercise its appellate (not original) jurisdiction to review the judgments of state courts. Article III, Section 2, provides that the SC appellate jurisdiction may be regulated and limited by Congress. Since the original Judiciary Act was enacted in 1789, the SC’s appellate review of state court judgments has always been limited to the federal questions decided by the state courts (violation of Constitution, federal statute, or treaty).
Review of state law issues: SC may determine whether a state court has reached a decision that is not in conformity with the Constitution, but it may not review state court decisions that adjudicate questions of state law. SC’s review of state court judgments is limited to questions of federal laws.

Martin v. Hunter’s Lessee
: Under Article III of the United States Constitution, the United States Supreme Court has authority to exercise appellate review of state court decisions.
: In 1791, P instituted a land dispute case against D in Virginia state court. In 1810, the Virginia Court of Appeals held for D. The United States Supreme Court reversed in 1813, but the Virginia state courts did not respect this ruling. The Virginia judges argued that Section 25 of the Judiciary Act, a law which provided that the United States Supreme Court had appellate review over state court decisions, was unconstitutional and thus unbinding.
: Whether the United States Supreme Court has appellate review in state court cases.
Holding and Reasoning: Yes. The United States Supreme Court has authority to review the decision of the Virginia state courts. The federal Constitution cut back upon state sovereignty in numerous aspects. Permitting appellate review of state court decisions by the Supreme Court does not impair the sovereignty of states, nor does it impair the independence of state judges. State judges are not absolutely independent from federal laws, but are bound to follow the Constitution of the United States at all times. It thus follows that the Supreme Court is vested with authority to conduct appellate review by the Constitution. Vesting this authority in the Supreme Court ensures impartiality in decisions that might not otherwise be present among individual state judges. It also ensures uniformity of decisions throughout the whole United States upon all Constitutional subjects.

Independent and adequate state grounds: SC may review any state court decision in any case where a federal question was involved, regardless of how state court disposed of that federal question. However, Supreme Court will not review a state court decision otherwise falling within its appellate jurisdiction if state ground is: 1) adequate to support the judgment, and 2) independent of federal law
Michigan v. Long: Rule: A state court providing a D with broader procedural protection than is guaranteed in the Constitution must explicitly indicate that ruling is based on separate, adequate, and independent state grounds. If a court’s state-law basis is not explicitly stated, the state court’s decision will be reviewed under the assumption that the state court’s ruling was based on federal law grounds. Facts: D was stopped by police. Police discovered marijuana during search. D attempted to suppress evidence, but trial court denied motion. Michigan Supreme Court reversed on the ground that the search went beyond that permitted in Terry v. Ohio. State of Michigan appealed to the U.S. Supreme Court. Issue: Was the state’s ruling based on adequate, independent state grounds? Holding and Reasoning: No. Michigan Supreme Court’s decision was based solely on Terry and other federal cases. Therefore, there was no independent and adequate state ground for the decision, and the case may be reviewed. Police may conduct a protective search of the passenger compartment of a car under the Terry framework. Thus, the Michigan Supreme Court decision is reversed, and the case is remanded.
: The State of Michigan is not denying a citizen rights guaranteed by the Constitution, but rather is giving additional protections to that citizen. The U.S. Supreme Court should not bother with those cases.

: Plaintiff must have a significant stake in the controversy to merit being the one to litigate it. Focus on party asserting the claim.
Minimum requirements:
Must be “case or controversy”
Injury in fact: concrete and particular, actual or imminent (i.e. loss of job, house)
Injury must be fairly traceable to the challenged action
Must be able to prove that the federal court decision is likely to redress the injury
Action challenged must be “cause in fact” of the injury

Prudential Standing Requirements
Generalized grievances: Generalized interest of a citizen in having his government behave constitutionally is not a sufficient “stake” to permit litigation. P must show that his interest in the controversy is more direct and individualized than that of the citizenry at large.
Third-party standing: Cases where the rights claimed to be violated are those of third parties not before the court.
Zone of i


Political Questions
Marbury v. Madison: “By the Constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character and to his own conscience . . . the decision of the executive is conclusive.”
Matters where the president has unlimited discretion, and thus no allegation of constitutional violation
Why does it exist?
Accords federal judiciary the ability to avoid controversial constitutional questions and limits the courts’ role in a democratic society
Allocated decisions to the branches of government that have superior expertise in particular areas
Federal courts self-interest disqualifies them from ruling on certain matters
Minimizes judicial intrusion into the operations of the other branches of government
For an issue to be a non-justiciable political question, one of six tests (listed in descending order of importance and certainty) must be satisfied:
a textually demonstrable constitutional commitment of that issue to another political branch
a lack of judicially discoverable and manageable standards for resolving the issue
an impossibility of deciding the issue without making an initial policy determination of a kind not suitable for judicial discretion
a lack of respect for the other branches of government in undertaking independent resolution of the case
an unusual need for unquestioning adherence to a political decision already made
the potential for embarrassment for differing pronouncements of the issue by different branches of government.

Baker v. Carr: Challenges to the malapportionment of state legislatures brought under the Guaranty Clause of the Constitution are inappropriate political questions. No textually-demonstrable commitment of Equal Protection issues to other branches of government. There are certain judicial standards already in place for adjudicating such claims, and because Baker is an individual person suing a state government, there is no separation of powers concerns implicated.


Article 1, Section 8 Purpose: expressly grants specific powers to Congress

McCulloch v. Maryland
: Maryland imposed tax on all out-of-state banks, including the Bank of the United States
: 1) Congress has power to charter a bank, derived from its general power to tax and spend. Necessary and Proper Clause also states that Congress may create laws it deems necessary to help carry out its enumerated powers. It expands, not limits Congress’ enumerated powers. Chartering the bank was a necessary and proper method of raising tax revenue to carry out taxing and spending powers 2) Individual states may not tax a federally-created bank because federal laws are supreme to state laws. The bank serves the United States. It would be inappropriate for it to be controlled by one part of the nation though a tax.
(p. 243): Contended it was the people who ratified the Constitution, not the states, thus the people are sovereign, not the states. Rejected view that the Constitution should be regarded as a compact of the states and that the states retain ultimate sovereignty under the Constitution. Congress may choose any means, not prohibited by the Constitution, to carry out its lawful authority. The Constitution is not a statute.