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Constitutional Law I
Santa Clara University School of Law
Armstrong, Margalynne J.

I. The Origins of the U.S. Constitution
a. Articles of Confederation
b. Declaration of Independence created 13 sovereign and independent states. Articles of Confederation was the precursor to the Constitution Problems:
i. No power to tax or regulate commerce
ii. No enforcement mechanism to collect taxes from states
iii. No judiciary or executive branch
iv. States usurping federal power
c. Federalist No. 10 (Factions)
i. The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity
ii. That the causes of faction cannot be removed, and that relief is only to be sought in the means of controlling the effects.
iii. A republic refines and enlarges the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country.
d. Federalist No. 51 (Checks and Balances)
i. Each department should have a will of its own, and consequently should be so constituted that the members of each should have as little agency as possible with the apportionment of the members of the others.
ii. Judiciary should be isolated from political pressures.
II. Judicial Review
a. The Constitution does not explicitly state that the Supreme Court may determine the constitutionality of acts of other branches of government. However, Marshall establishes judicial review of actions of other branches in Marbury v. Madison, a case that rules in favor of Jefferson’s party, keeping them happy, while allowing establish judicial review
b. Marbury v. Madison
i. Marbury, along with others, had been appointed a justice by John Adams, who was on his way out of office of president. Thomas Jefferson, the new president, ordered secretary of state Madison to not deliver the commission to Marbury, and thus Marbury brought suit to the Supreme Court to seek a writ of mandamus to compel Madison to deliver the commissions.
ii. The Court then sought to answer 3 questions: 1) whether he had the right to the commission, 2) whether the laws afford him a remedy, and 3) whether the court had jurisdiction to issue a mandamus
iii. Court first held that he had the right because the procedures had been followed
iv. Then that there was a remedy, because the law would be empty without a remedy
1. Here the court addresses the issue of whether the court had the right to rule on this issue, and thus made the distinction between an act which was up to the discretion of the executive branch (which is not subject to judicial review for sake of separation of powers) – beginning of the political question doctrine
2. And an act by the federal government which addressed the individual rights of a person, necessarily entailing a legal remedy
v. Then went on to address jurisdiction, which generally would have been approached first
1. The Judiciary Act of 1789 was read to give federal courts the jurisdiction of issuing writs of mandamus, but this was in direct contrast to Article III, Section 2 of the Constitution, which only allowed original jurisdiction for certain things
2. Supreme Court has original jurisdiction “in all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party.” Congress may neither restrict nor enlarge the Supreme Court’s original jurisdiction. Article III’s enumeration of original jurisdiction would be “mere surplusage, … entirely without meaning” if Congress could add more areas of original jurisdiction.
3. The court thus held that it could not issue the writ of mandamus on grounds that it was here on original jurisdiction, and that the court’s original jurisdiction did not extend here.
vi. Finally, and most importantly, the court addressed the idea of judicial review, of the court declaring laws unconstitutional
1. Marshall stated that the Constitution imposes limits on government powers, and that these limits are meaningless unless subject to judicial review.
2. Also, he argued it is inherent to the judicial role to decide the constitutionality of the laws it applies
a. “It is emphatically the province and duty of the judicial department to say what the law is.” John Marshall, Marbury v. Madison
3. Marshall also argued that the Court’s authority to decide “cases” arising under the Constitution implied the power to declare unconstitutional law conflicting with the basic legal charter.
4. See page 45 of Chemerinsky for other arguments in favor of judicial review
vii. If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.
1. Marshall finds that the judiciary determines inconsistencies between state laws and the Constitution
c. Judicial Review of State Actions
i. The Supreme Court has the power to review decisions of state courts
ii. Clear basis exists here in the Supremacy Clause of Article VI, which states that the Constitution, Laws, and Treaties of the United States takes precedence over state laws and that judges of state courts must follow federal law.
1. Martin v. Hunter’s Lessee
a. The Virginia Court of Appeals refused to submit to the United States Supreme Court’s exercise of appellate jurisdiction over its judgment in a land dispute because it found this jurisdiction unconstitutional. The state argued that the states are sovereign, and that it is not right for the federal government to impede this sovereignty. However, in the Constitution, the states ceded certain powers to the national government; giving up some powers does not entail losing all sovereignty
b. It is the case (as mandated by the Constitution) and not the court that gives the jurisdiction. The court wrestles with the issue of what would happen if the Supreme Court’s jurisdiction was as limited as the state’s argued for; in effect, the Supreme Court would basically have no power.
c. Constitution doesn’t explicitly say that federal courts can have judicial review of state courts, but it is implied, because Congress under Constitution has power to create lower federal courts. If Congress does not establish these lower federal courts, then Supreme Court would not be able to hear any of these state cases, unless they are allowed to review state decisions.
d. Also, by having federal courts with appellate jurisdic

overnment power. “The government of the Union, then, is emphatically, and truly, a government of the people. In form and in substances, it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit.” (63)
ix. Issue 3: What is the meaning of necessary and proper?
1. Maryland construes “necessary” strictly as being absolutely necessary. Marshall construes necessary more broadly. If Congress is limited to strictly necessary, you limit Congress’s ability to act and make decisions, leaving them with no discretion.
2. Historical: If “necessary and proper” was to be limited, the framers would have placed it in Article I, § 9 (Negative powers)
3. Logical: Enumerating every power would “partake the prolixity of a legal code, and could scarcely be embraced by he human mind. It would probably never be understood by the public.” (63). The Constitution is organic and establishes how the government operates.
x. Issue 4: Whether Maryland can tax the bank?
1. No, because the federal government is of the people, and if one state could tax the federal government, they would be taxing people in other states they have no jurisdiction over. When a state taxes the operations of the government of the United States, it acts upon institutions created, to by their own constituents, but by people over whom they claim no control.
2. The power to tax involves the power to destroy; that the power to destroy may defeat and render useless the power to create.
c. Ex parte McCardle
i. McCardle published articles in a newspaper in Mississippi, and was arrested under libel, impeding reconstruction, and other things. He sought habeas corpus from a federal court, claiming Congress lacked constitutional authority to establish a system of military government in the states.
ii. Issue: Whether the Supreme Court has jurisdiction of the question
iii. See Article 3, Section 2, regarding Congress’s powers to restrict the jurisdiction of federal courts
1. This case involved appellate jurisdiction; the exceptions clause gave Congress the powers to increase the appellate jurisdiction of the Supreme Court
iv. The provision of the act of 1867, affirming the appellate jurisdiction of the Supreme Court in cases of habeas corpus was expressly repealed, and thus the Court does not have jurisdiction over this case. The case was then dismissed for want of jurisdiction.
IV. Justiciability doctrines
a. Case or Controversy requirement
i. Legal dispute between litigants based on actual facts
ii. No advisory opinions