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Constitutional Law II
Rutgers University, Newark School of Law
Pope, James Gray

Constitutional Law
Professor James Pope
Spring 2006
a. Deals with the original jurisdiction of the Supreme Court.
b. 3 questions:
i. Is Marbury entitled to his commission?
1. Yes, Marbury has a right to his commission because once the President has affixed his seal to the commission it becomes the property of the person receiving it.
ii. If he has a right, and that right has been violated, do the laws of this country afford him a remedy? (i.e., Does §13 of the Judiciary Act give the Supreme Court original jurisdiction to issue a writ of mandamus compelling the Secretary of State to deliver the commission?)
1. Marshall reasons that there must be a remedy because where there is a right, there is a remedy (THIS IS NOT THE LAW).
2. §13 actually gives the Court appellate jurisdiction, not original jurisdiction, but Marshall chooses not to read it this way, perhaps to get to the Constitutional issues.
iii. If they do afford him a remedy, is it a mandamus issuing from this court?
c. Constitutional Issues:
i. Is Congress authorized by the Constitution to enact §13?
1. YES, all procedures were followed (enacted by both houses of Congress and signed into law by the President)
2. YES – Article III, §2 gives the Supreme Court appellate jurisdiction with regard to any regulations that Congress passes.
3. NO – §13 improperly gives the Supreme Court original jurisdiction over something that, according to Article III, §2, it only has appellate jurisdiction.
ii. Does the Supreme Court have the power of judicial review?
1. Holding: The Supreme Court has the power to declare §13 unconstitutional and refuse to follow it: Marshall gave 3 textual reasons and 1 structural
a. Structural implications from a written Constitution: A written constitution is meaningless if Congress could ignore it at its pleasure.
b. Article III’s grant of judicial power over cases arising under the Constitution: Marshall inferred the power of judicial review from Article III’s grant to the federal courts the power to decide cases with constitutional questions.
c. Constitutional provisions specially directed to courts: The matter at issue was whether Congress could alter the Court’s original jurisdiction, a matter addressed to the courts by Article III. Marshall argued that a constitutional principle must not yield to the legislative act.
d. The supremacy clause: Marshall argued that since the Framers apparently expected state judges to decide if federal laws violated the Constitution they must also have expected the Supreme Court to exercise the same power in its appellate capacity.
e. Judges’ oath: Marshall argued that judges would be violating the oath they took if they upheld unconstitutional laws.
II. COOPER v. AARON (1958)
a. Facts: Following the ruling in Brown that official racial segregation in public schooling was unconstitutional, Little Rock, Arkansas sought to integrate the public schools in accordance with a plan approved by a federal district court. Arkansas Governor Faubus called out the National Guard to prevent school integration and was then enjoined from this action. The next year the Little Rock schools sought to delay integration to avoid further “chaos, bedlam, and turmoil.” The district court granted the delay, which was reversed by the 8th Circuit and affirmed by the Supreme Court.
b. Governor Faubus and Arkansas’s legislature insisted that they were not bound by the Supreme Court’s decision in Brown because they were not parties to the case.
c. Decision in Brown was an interpretation of the 14th a

ve the power to establish a national bank?
b. The Court held that in addition to those power specifically enumerated in the Constitution, certain broad federal powers are to be implied from the Necessary and Proper Clause.
i. Necessary and Proper Clause: Article I, §8, Clause 18 provides that Congress has the power “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the Constitution.”
ii. Congress may use any appropriate means: Congress is not limited to only those means that are absolutely necessary. Rather, it may use any appropriate means to achieve the ends specified in the enumerated powers – i.e., any means not prohibited by the Constitution. The need for a particular means is for Congress – not the Supreme Court – to determine.
c. The enumerated powers do not include the power to incorporate a national bank, but Congress may do so as a necessary and proper means of carrying out its delegated powers to lay and collect taxes, borrow money, regulate commerce among the several states, declare and conduct war, and raise and support armies and navies.
VI. The Modalities of Constitutional Argument

a. Structure of Commerce Clause Analysis:
i. Is this is a regulation of:
1. Channels of interstate commerce?
a. If so, then the standard comes from U.S. v. Darby
Instrumentalities of interstate commerce?