Constitutional Law Outline:
Professor Azmy
Spring, 2010
I. Role Of Supreme Court In The Constitutional Order
A. Introduction
B. Authority For Judicial Review
1. Basic Framework
Marbury v. Madison and Legitimacy of Judicial Review, pp. 1-14.
Marbury v. Madison was the landmark case for establishing Supreme Court judicial review to determine the constitutionality of a statute. Marshal, who wrote the opinion for the court, established that it was the judiciary branch who’s duty and province it is to say what the law is. Meaning that the Court, and not the legislature makes the decision in any particular case what is, and what is not constitutional.
Criticism of Marbury:
a. Who determines constitutionality: It is accepted by most critics that the constitution is superior to the statutes, and that where a conflict between the two arrises, the constitution must be respected, but the 2nd part of Marshal’s argument, that the Judicial branch alone has the power to interpret whether the statute is unconstitutional is what gets the critics all riled up. Because nowhere in the constitution does it say that th3e courts and not congress should make this decision.
a. So, based on the above, it is possible to imagine a situation in which congress, and not the courts, had the power to interpret the constitutionality of statutes.
b. A response to the critics who believe Marshal was out to lunch when he asserted the judiciary’s exclusive right to interpretation is that Marshal may have been making an assumption, rather than a deduction. Meaning that the constitution is indeterminate as to who has the final say. This assumption is just as reasonable as an opposite assumption giving the legislature the power to decide the const. because neither scenarios are enumerated in the constitution.
c. Judicial Independence: There are reasons, though, that favor giving this power of const. review to the judicial over the legislative branch. These are:
i. Federal judges are appointed for life, and therefore more free from daily political pressures.
ii. Congress generally responds to the majority’s will, and the judiciary may be more apt to protect the rights of minorities as per the constitution.
iii. (checks and balances, if the legislature can amend the constitution, or more relevantly create statutes, the same branch should not be able to determine the constitutionality of those statutes.
iv. The courts have the ability to be specialists – hearing testimony from field experts, etc.. while the legislature are generalists, and do not have expertise in all areas. Thus the courts are in a better position to research validity and const. of statutes by exploring all facets.
v. *”Arising Under” language suggests that the courts can review cases arising under the constitution.
vi. federalist papers give further weight to judical review and the idea that the constitution is more fundamental than the statute (Ask Azmy what in the fed papers stated this).
2. Review of State Court Judgments
A. When the Supreme Court reviews the judgment of a state court, it is using its appellate rather than original jurisdiction. Article III, section 2 states that the SupCt’s appellate jurisdiction may be regulated and limited as congress provides. Since the original Judiciary Act was enacted in 1789, the Supreme Court’s appellate review of state courts has always been limited to the federal questions decided by the state courts.
1. No review of state law issues: the Sup Ct can 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 merely adjudicate questions of state law. Review is limited to questions of FEDERAL LAW.
B . Martin v Hunter’s Lesee: This case established whether the Supreme Court was authorized to review the constitutionality of state court decisions.
1. Virginia argued that as a matter that was brought in Virginia state court, the matter could appeal vertically up to the state’s highest court for review, but the Sup. Ct had no business evaluating the case.
2. Don’t Mess with the Sup. Ct: the Sup Ct flat out rejected Virginia’s argument stating that it could review the constitutionality of a decision by a state’s highest court. Based on two principal strands, in justice Story’s opinion:
a. Sovereignty argument rejected: Virginia argued that they were sovereign , but the S.Ct rejected this on the grounds that the constitution cut back on many state sovereignties in many ways, and there was no reason to presume that judiciaries were immune.
b. Uniformity: The need for uniformity among the nation in interpreting the constitution.
3. Cohens v. Virginia: The Sup.Ct’s right to review state criminal cases for constitutionality was likewise upheld here. (pgs 15-19).
a. Marshal, who gives the opinion, states that the Supreme Court is a logical choice for judicial review of the constitutionality of state court decisions as the Sup Ct. justices have life tenure, salary regulations, and thereore have less influence from constituants and political pressures
4. Judicial Exclusivity, 19-22; 27-30.
a. Points from this reading: Congress cannot by a statute overrule the Supreme Court rulings. Miranda p.22
b. The Sup Ct. states that lower cts cannot undermine their decisions, they must be obedient to the Sup.Ct. decisions.
c. Sup. Ct. asserts that lower cts take an oath to uphold the Sup Ct’s interpretations of the law = of the constitution.
5. Political Restraints on the Supreme Court
a. Judicial Selection
b. Impeachment
c. Court Packing
d. Court Stripping
e. Constitutional Amendment
C. Constitutional And Prudential Limits On Judicial Review
1. Art. III and Case or Controversy Requirements
a. The court has itself imposed limits on the exercise of federal jurisdiction to avoid nonessential interpretation of the constitution
i. Cases and Controversies: Art. III, s. 2 limits the jurisdiction of all fed cts to ‘cases and controversies” requiring fed dts to deal only with real and substantial disputes that affect the legal rights of the parties, and that allow relief through a judicial decree.
ii. Justiciability: the limits of justiciability preclude the ct from deciding on certain issues. So, what the court cannot adjudicate:
1. Cannot give advisory opinions
2. Cannot decide moot cases
3. Cannot decide on collusive/friendly suits
4. Cannot adjudicate political questions.
a) Advisory Opinions & Standing; pp. 31-32; 32-40; ACLU v. NSA Cplt.
The Sup. Court has long since refused to issue advisory opinions (on the legality of executive or legislative action that did not involve an actual case). They even turned down the first president – when Washington asked the Ct for advice on legal q’s involving the war between America and England. Sup. Ct felt it would spoil the checks and balances of the system to skip the case and controversy requirement and cut right to the opinion – even for the prez. Court noted that the executive branch had constitutional recourse to call on the heads of departments for opinions and advice in interpreting.
b) Standing
a. The plaintiff m
powers vested by this constitution in the government of the united states or in any department or officer thereof.”
A. Implied Powers
a. McColluch v. Maryland & Notes, pp. 60-71.: the deciding case for what specific powers of congress may be enlarged by the necessary and proper clause.
b. Maryland believed itself to be equal to the federal gov. and therefore thought it proper to tax a fed. Bank inside the state. Marshal responds by stating that the fed gov. was created by the people, not the states. And when you tax the fed you are actually taxing all the people, those who in other states would have no recourse. Marshal also finds that the framers, by creating broad powers, intended to be able to perform the smaller function s to exercise that broad power.
i. Findings were that even though the const. does not expressly grant congress the power to incorp. A bank, it can do so under a doctrine of implied powers. (from nec and prop. Clause)
ii. The federal gov. is supreme over the states so that a bank created by it pursuant to its const. powers is immune from taxation by the states.
iii. Note: this case established the doctrine of implied powers as well as stating the view of the supremacy of the fed gov. Maryland’s position (of a strict and literal application of the enumerated powers doctrine) would have paralyzed the federal government by preventing fed exercise of any power not EXPRESSLY set forth in the const. This would have rendered the current fed gov to the same power status as the weak gov under the articles of confederation.
iv. Reasons why the ct argues that congress has these implied powers:
· maryland’s view would abridge const rights
· the clause is placed among the powers of congress, not among the limitations on those powers
· its terms enlarge, not diminish the powers vested in the gov.
i. remember: the power to tax is the power to destroy, and the states cannot do this.
B. Commerce Power
1. Early Interpretation of Commerce Clause
The Source of the Power: is derived from the Commerce Clause (Art. I, Sec. 8, Cl. 3). Which grants to Congress “the power to regulate commerce with foreign nations and among the several states and with the Indian tribes.” Must be read in conjunction with the nec. And prop. Clause.
*Between about 1900 and 1937, judges limited congresses power under the commerce clause substantially. The Ct used highly formalistic arguments to strike down many fed laws attempting to regulate the health and welfare of the US citizens. Ct was dominated by judges who believed in laissez-faire economics, so they struck down policies simply because they didn’t like them and not because they weren’t constitutional.
*the New Deal changed this view. Cts afforded congress great power to deal with the depression, and between 1937-1995 the court accepted the widest definition of the commerce clause available.
