Con Law I
Prof. Rachel Godsil
Fall 2012
I. THE JUDICIAL FUNCTION
Historical Background
a. Articles of Confederation
i. Loose National Gov’t
1. Nat’l gov’t assumed powers that Britain had over the colonies. There was only a congress with no legislature or judiciary. There was only one house.
ii. Specific Powersa
1. To wage War; To Print Money; To Deal with Indians
iii. Lacked Powers
1. Could not tax; Could not regulate trade among the states, so the States discriminated against each other. Nat’l gov’t could not enter into treaties with foreign nations, no executive; no way to enforce/ensure states complied with treaty
a. Strong commitment to state sovereignty and retention of powers not expressly granted to Congress
b. Changes were impossible b/c required a unanimous vote
iv. Constitutional Convention, in Philadelphia in 1787, was supposed to be to propose Amendments to Articles; instead, framers took opportunity to create an entirely new governing document that made ratification possible by ¾ (9) of the 13 states; (Articles required unanimous vote to change Articles)
b. Constitutional framework
i. New Powers
1. Regulate commerce among the several states
2. Establish roads, promote science and arts,
3. Constitute tribunals
ii. Bill of Rights was a list of enumerated rights that guaranteed individual freedoms that were unalterable;
iii. New Limits on State Powers
1. Cannot print money or enter into foreign treaties
2. Removed some sovereignty from states
iv. Constitutional Amendments/Change
1. Change can be accomplished in two ways
a. Through a vote by 2/3 of the House and Senate and ratification by ¾ of the states
b. ¾ of the States can petition for constitutional convention and law must be passed by 2/3 of House and Senate
2. Constitution is a vague legal structure, not a code and does not have all possibilities enumerated
a. Constitution was meant to be malleable for society’s different needs but at the same time it has elements of immutability;
3. Constitutional interpretation varies depending on the case and the Supreme Court has employed varying techniques.
c. System of Checks & balances
1. Overlap is necessary
2. Use power and ambition to control power and ambition, as in Homer’s Odyssey, where Ulysses ties himself to the mast of the ship and has his sailors cover their ears so that they may not be seduced by the Sirens singing.
3. Enforcement of a law requires that at least two branches of gov’t act in conjunction; make law and enforce it; try case and convict criminal;
4. Three Branches of Government
a. Art. I – Legislative
i. Senate – six year terms and elected by state legislators until 17th Amendment, where senators are now elected by popular vote;
ii. House – two year terms and elected by popular vote
b. Art. II – Executive
i. president – commander and chief of armed forces; elected by electoral college
c. Art III – Judiciary
i. independent and appointed by Executive branch
ii. salary protections
iii. free from political influences
d. Federalism – balance of powers between Fed’l and State gov’t
Fed’l gov’t
i. Created by specific grant of powers enumerated in Constitution; Implication is that congress can act only if here is a clear authority with all other governance left to the states
ii. Separation of powers rationale
1. separation of powers will prevent tyranny and majority rule over minorities
iii. republican representation will allow for less control by majority factions because of a larger constituency base who will lack means of communication to organize themselves
1. Wicked Factions:
a. factions of the poor who want equal distribution of property; cancellation of debts, paper money rage;
iv. a less homogenous area will create more diversity and make it harder for one faction to control b/c representative must keep in mind all his constituents
1. relies on human self-interest for power that representatives will do everything to remain in power;
v. separation of powers is necessary for keeping out abuses/excesses of popular government
1. men are not angels; and tyranny will spring up if law does not act to prevent it
2. hard to be tyrannical with much of the power disbursed into different agencies/bodies/branches
3. pitting ambition against ambition
a. Madison’s idea is to use ambition / self-interest TO HARNESS the quest for power to keep each of the branches in check
b. Harder to form factions where constituency is large
vi. one branch will not allow the other branch to encroach on it; overlapping system of checks and balances creates a sort of competition for power
1. bureaucratic separation of powers will lead to gridlock, but that is better than the alternative: a highly efficient, authoritarian power/tyrannical government;
vii. Supremacy Clause: “Constitution, and the Laws of the United States which shall be made in Pursuance thereof, and all Treaties made or which shall be made under the Authority of the United States, shall be the Supreme Law of the Land.”
1. Preemption: state and local laws are deemed preempted if they conflict with federal law;
viii. Commerce Clause EXPLICITLY Regulates interstate commerce
ix. Dormant Commerce Clause IMPLICITLY prohibits states from imposing burdens on each other;
State gov’t
i. Reserves all sovereign powers that it had before the Constitution except those specifically given to the federal government
ii. 10th Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people;
II. JUDICIAL REVIEW Nature & Source’s Of Supreme Court’s Authority
Marbury v. Madison, 5 US (1 Cranch) 137 (1803)
Midnight judges appointed by President John Adams on the last day of his presidency under the newly created federal judgeships created by Congress that same day. Secretary of State John Marshall sealed the commissions. All commissions were delivered except for a few judges, including Marbuy. Jefferson came into office the next day and declared the appointments void. Marshall was interim secretary of state but for while until Madison replaced him and Madison refused to issue commissions. Marbury sued for a writ of mandamus compelling the Secretary of State to Act
ISSUES: Ct. reviewed the three key issues: (1) whether Marbury has a right to the commission, and (2) if so, whether that right had been violated and whether there was a remedy for that violation and (3) whether w writ of mandamus from the Supreme Court was the appropriate remedy?
· Ct. finds that the commission vests when it is signed and sealed (Signed by president and sealed by secretary of state)
o Ct. recognizes that political decisions/judgment not for judicial review. See Political Question Doctrine.
· Ct. finds that refusal to deliver the commission, which becomes a vested legal right, is a violation of the right
· However, Ct. does NOT find that it can issue a writ of mandamus.
RULES:
· When a duty is created by law (Secretary of state’s duty to deliver commission) and an individual right is dependent on that duty, officer of the law cannot at his discretion sport away the vested right of the injured. p (Marbury) has a remedy in the court to ensure that that duty is carried out.
· The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury. One of the first duties of government is to afford that protection.
Supreme Court shall also have…writs of mandamus to any appointed courts or persons appointed or holding office under the authority of the United States. Judiciary Act § 13 (1789)
· IT IS EMPHATICALLY THE PROVINCE AND DUTY OF THE JUD
the role of supreme arbiter of the Constitution; “it is emphatically…what the law is”; Ct. does not have to defer to other branches’ judgment; as supreme, sole interpreter its decisions are binding on all branches and courts.
1. the court would be the SOLE arbiter, interpreter of the Constitution; as such, it sdecisions would be binding and the Court would not need to defer to executive/legislative judgment
2. Ct.’s rulings would be binding on other branches (Legislative & Executive, as in Marbury)
3. Ct.’s rulings have judicial supremacy and are BINDING on all branches and levels of gov’t
Brown v. Board of Education, Ct. holds that segregation is unconstitutional and public schools must be desegregated. Topeka, KS board of ed. was party to this case and therefore is bound by Board v. Brown. In Arkansas, the governor argued that AK was not a party to the case. However, the Sup. Ct. later held that A CONSTITUTIONAL DECISION BINDS ALL DEPT’S /BRANCHES OF GOV’T. Ct. relied on a BROAD reading of Marbury to arrive at this holding.
iii. Ct. has NO MEANS OF ENFORCING THEIR DECISIONS
1. Everyone is acting in good faith to uphold and obey and give deference to Ct.’s decisions and interpretations
2. Ct. is careful to preserve its legitimacy, b/c that is the source of its power!
iv. No LEGITIMATE holdings, than no real shot at getting political pressure to enforce compliance with order/decision
1. Ct. protects its legitimacy by having well-reasoned/argued doctrines or decisions that are based on various techniques of Constitutional interpretations
2. Ct. is more adept to make constitutional interpretations b/c of the salary protections, freedom from election process, ability to create/build up doctrine
2. SUPREME COURT REVIEW OF STATE COURT JUDGMENTS & PROCEEDINGS
Martin v. Hunter’s Lessee, 1 Wheat. (14 US) 304 (1818) Review of State Supreme Courts
Lord Fairfax is loyal to British war during war. VA seizes the land from Fairfax. Martin gets land by Fairfax’s will. Hunter claims he got land by VA seizure. Martin claims that peace treaty in 1883 guarantees that British subjects would retain land during the revolution. Lawsuit in VA State ct. over this issue, and VA rules in favor of Hunter. Supreme Ct. reverses and rules in favor of Martin. VA won’t comply with order b/c Sup. Ct. has no authority to review state decisions. Supreme Ct. says that they do have jurisdiction to review a decision from the VA State Supreme Court under § 25 of Judiciary Act.
ISSUES: Whether the VA state court can rule against fed’l international peace treaty granting property rights to a person different than the person claiming property rights under state law? OR whether state or Supreme Court interprets federal law if case originates in state court
RULES: If a state decision affirms a rule of law that doubts the validity of a federal authority or a decision by the state court is against validity of federal authority and favors the state’s decisions then it is reviewable by the Supreme Court. Judiciary Act § 25 (1789).
Federal law must be interpreted uniformly by all state courts (otherwise there will be at least 50 interpretations of single federal law).
