John Q. Barrett
Constitutional Law
Spring 2013
I. Introduction – Methods of Constitutional Interpretation
A. First Divide: Interpretivists v. Non-Interpretivists:
1. Interpretivists insist that the only legitimate form of judicial review is interpretation of the written text of the constitution. The work with the text of the Constitution
2. Non-Interpretivists claim that we should not attempt to figure out what the text of the Constitution means. Instead, we should make the constitution a mirror of our present notions of fundamental justice. The supreme court should not be limited to the text alone and may use extra-constitutional norms as a source of constitutional decision
B. The Textual Method
1. Since the Constitution is written, it makes sense to start with the actual text of it. This method relies solely on the interpretation of the actual written text
a) Problem: This method runs into problems when the text is inadequate or ambiguous
C. The Historical Argument: Two Forms: Originalism v. Vectors of History
1. Originalism: Two Kinds:
a) Original Intent: Determining the original intent of the drafters of the constitution
i. PROBLEM: You need to determine who the true framers were and you need the right materials but this is almost impossible because the thoughts and writing of the true founders were never set down in one place but rather scattered everywhere and in fragments
b) Original Meaning: Determining what was the original meaning of the Constitution when it was drawn by looking at the time, the people and the words as they meant back then
2. Vectors of History:
a) This is very similar to Non-Interpretivists. It looks at history as running film footage and argues that the best argument for Constitutional interpretation is to look at the current meaning/definition of the words at issue
D. The Structural Arguments
1. Involves the claims that a particular result or principle is implied in the structures of government and the relationships created by the Constitution among citizens and government – Look at the amendment or clause, and look at the rest of the document as a whole – For example, if they were very specific and particular in one area, the fact that they didn’t do that somewhere else means they didn’t want to do that
a) Example: Justice Marshall’s argument in Marbury focused on the structure of the Constitution as creating an active role for the federal judiciary
b) 5Th amendment intended the NATION, not the State (Barron v. Baltimore) – When the Constitution does not specify, it is presumed to be the Nation since in other places when it wanted to restrict the state, it actually mentioned the state – (Always make multiple arguments and argue in the alternative, maybe one will win) – If Barron would have sued under 14th amendment, would have won
E. Doctrinal Arguments: Stare Decisis
1. This is the rule adhering to precedent in order to maintain legal stability and judicial confidence
2. Stare Decisis is the legal principle by which judges are obliged to obey the set up precedents established by prior decisions
F. Prudential Arguments
1. Asks if the interpretation by the Court is “wise” or will have potentially harmful weakening effects on government or political structure (example; issues regarding separation of powers)
2. Advancing particular doctrines according to the practical wisdom of using the courts in a certain way
a) Example: Is it wise for the Court to review the grounds on which the President is impeached and convicted, or would such review result in undermining other branches of government
G. Cultural Arguments
1. Based on widely shared cultural norms, such nontextual sources as moral concepts of justice, theories of human autonomy, and assumptions about fairness
a) What do people think the Constitution means?
H. Constitutional Interpretation v. Constitutional Implementation
1. Separating the meaning of the Constitution from the doctrinal devices that can be created to implement that meaning
II. FEDERAL JUDICIAL POWER: AUTHORITY OF JUDICIAL POWER
*Article 3 of the Constitution defines the power of the Federal Court and authorizes the federal court system over “cases and controversies”
A. Authority for Judicial Review (Process by which the Supreme Court Decides if the actions of government officials are constitutional
1. Marbury v. Madison (1803) – Marbury was supposed to be appointed as a judge by the Adams administration. When the Jefferson administration came in, Secretary of State James Madison refused to deliver the commission. Marbury, one of the supposed to be candidates to be appointed as a judge, brought suit against Madison directly to the Supreme Court. Marshall stated that if the Supreme Court identifies a conflict b/w a constitutional provision and a congressional statute, the court has the authority and the duty to declare it unconstitutional and refuse to enforce it
a) Issue #1: Does Marbury have a right to the commission?
i. YES, he does. Marshall says that Marbury was entitled to the commission because they were signed by President and sealed by the Secretary of State. A sealed commission created a completed commission that the officer had a right to
b) Issue #2: Is Marbury entitled to a legal remedy?
ii. Marshall said there were two kinds of acts. 1) Political acts and 2) acts that are required by law. Political acts are NOT reviewable by SCOTUS but acts required by law are. Madison’s refusal to deliver the commission was an act required by law so yes, does have a right to a remedy
c) Issue#3: Does SCOTUS have the authority to issue the Writ of Mandamus?
iii. NO. The Judicial Act of 1789 said SCOTUS had jurisdiction to issue Writs of Mandamus to persons holding office under authority of the U.S. Thus, this act explicitly authorized the relief Marbury needed
iv. But Justice Marshall concluded that this granting of jurisdiction by the ACT of 1789 was in DIRECT conflict with Article III, §2 of the Constitution which grants SCOTUS ORIGINAL JURISDICTION only in cases affecting ambassadors, public ministers & consuls, and cases where a state is a party. Issuing a mandamus is not part of the type of cases enumerated here, thus this statute is unconstitutional
d) Conclusion: Marbury was denied the writ – not because he wasn’t entitled to it, but because the ACT was unconstitutional – This was the rule that Marbury established – It has the right to declare statutes unconstitutional
2. Context of Marbury v. Madison
a) The Constitution is PARAMOUNT and provides the Supreme Law. Thus any act by Congress/Legislature opposite to the Constitution must be VOID
i. Here, Congress couldn’t add to the SCOTUS original jurisdiction because it is a fixed list! Congress can only alter appellate jurisdiction of Article III
b) Judicial Power is given in the Constitution – ART. III §2
c) Oath taken by the judges would be violated if they upheld an unconstitutional law – Art. VI §3
d) The Constitution is a superior law and it is “emphatically the province and the duty of the Federal Judicial Department to say what the law is” – To deny SCOTUS the power of judicial review would be to say that courts must ignore the Constitution and see only the law – If they did this, then what would be the point of written constitutions??
e) Marbury has come to mean more than just judicial review, but Judicial Supremacy – The weakling of the government, no cops, no money, yet we obey them – Function of the force of the argume
exceptions clause is an explicit power of Congress to chop at the jurisdictional power of SCOTUS. Once the act is repealed it must be considered as if it never existed
i. RULE – Congress does have power to regulate and limit the SCOTUS appellate jurisdiction. However, this has limitations:
a. Congress may eliminate specific avenues for SCOTUS review as long as it does not eliminate all avenues. For example, in McCardle, 2 statutes had not allowed SCOTUS to grant habeas corpus to federal prisoners. SCOTUS upheld the constitutionality of the repeal of one of the statutes because the other statute remained as an avenue for SCOTUS habeas corpus review
b. Although Congress may eliminate SCOTUS review of certain cases within the federal judicial power, it must permit jurisdiction to remain in some lower federal court
c. If Congress were to deny all supreme court review of an alleged violation of constitutional rights, or go even further and deny a hearing before any federal judge on such a claim, this would violate due process of law
6. JURIISDICTION OF THE INFERIOR COURTS – ARTICLE I gives Congress to create inferior courts and ARTICLE III gives Congress authority to ordain and establish inferior courts
a) Article III courts are those established by Congress pursuant to the provisions of §1. Congress has power to delineate the jurisdictional limits, both original and appellate of these courts, although it is bound by the standards of judicial power set forth in Article III as to subject matter, parties, and the requirement of case or controversy. Thus, Congress cannot require these courts to render advisory opinions or perform non judicial or administrative functions
b) Hamilton Federalist Paper 80 – Gives 6 reasons for why federal judicial power must exist – Mostly revolve around the idea of peace. We should have uniformity, supremacy of the federal judiciary, foreign nations peace, no bias of states – Peace is a common theme
c) Sheldon v. Sill – Congress didn’t have to create a circuit court at all. So the fact that they did means they can limit the type of cases they hear. The constitution has defined the limits of the judicial power but has not prescribed how much of it shall be exercised by the Circuit Courts. Consequently, the statute which prescribes their jurisdictional limits cannot be in conflict with the Constitution unless it confers powers not enumerated therein – If the Constitution had enumerated the inferior courts and gave them powers, Congress would not be able to limit this power – SINCE IT DIDN’T, either the inferior courts created by Congress have all the power not given to SCOTUS, or CONGRESS, because they created them must define their respective jurisdictions – THE LATTER – THE POWER TO CREATE INCLUDES THE POWER TO CREATE THE LESSOR
i. Congress may withhold from any court of its creation jurisdiction of any of the enumerated controversies
ii. Because Congress has authority to create Federal courts, it has authority to determine its jurisdiction
