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Constitutional Law I
St. Johns University School of Law
Barrett, John Q.

Constitutional Law- Barrett Spring 2013
       Liberal Court: individual rights of accused, strong central government, regulating the economy, healthcare, environment
       Conservative Court: favors prosecutors, favor state’s rights, disfavor economic regulation
       Court cannot always be defined as conservative or liberal
o    Precedence plays major role
o    All rulings given the same weight
o    Public Opinion shifts may be mirrored by the courts
§  Most people don’t want race to be a deciding factor in admissions
§  Most people believe in the right to abortion but want restrictions on it
o    Rehnquist replaced by Roberts: not a major shift, slightly less conservative
o    2006, O’Connor replaced by Alito: major shift since O’Connor was a swing vote/middle but replaced by conservative and pushed Stevens to the middle
§  O’Connor: Sensitivity to states’ rights from working in AZ state government
o    2009, Souter replaced by Sotomayor
o    2010, Stevens replaced by Kagan: not a major change
o    Breyer: now the leader of the liberals
§  Not as liberal on religion issues (daughter is an Episcopalian priest)
§  More known for his dissents, Administrative law expert
       Establishes the structure of the federal government and distributes power among the branches
o    Article I- Congress
o    Article II- President
o    Article III- Judiciary
       Establishes the relationship between federal and state government
o    10th Amendment
       Limits government’s powers and thereby protect individual rights
o    Enumerated rights instead of assuming all rights given unless prohibited (plenary power)
o    Needed stronger central government than under the Articles of Confederation but still concerned about overwhelming power or monarchy/tyranny
§  Divided power among the branches of government to ensure none of the three would become too powerful
       Advantage of Constitution
o    Laws can be changed by a majority while to amend Constitution, need super majority of the states (harder to change) so would endure through all time
§  Debate over whether a static or living document
§  Unelected judges serving for life making constitutional determinations of decisions by elected representatives
       Marbury v. Madison: 1803, Exercise of the court’s power to review decisions of the government
o    Facts: Lame duck Congress created judicial positions through Judiciary Act 1789. Also reduced Supreme Court from 6 to 5 so Jefferson couldn’t fill the position with an Anti-Federalist. Suspended 1802 Supreme Court term to confine the Supreme Court to what they could ultimately do. While President of the United States, Adams appointed several justices, including justices of the peace, in the District of Columbia. Adams signed the Commissions for these justices, but the Commissions were not delivered before his term expired (Marshall was his SOS). Marbury was one of the justices of the peace appointed by Adams. When Jefferson became President of the United States, he ordered his Secretary of State Madison, to withhold these Commissions. Marbury brought suit directly in the Supreme Court, asking for a Writ of Mandamus to compel Madison to deliver the Commissions.
o    Marshall rules against Marbury, saying the court does not have the power to issue the writ of mamandus. Court does not have original jurisdiction in the Constitution and Congress does not have the power to extend the jurisdiction of the court.
o    Rule: The Supreme Court has judicial review over acts of Congress. This power allows the Supreme Court to declare those acts that fall outside the legislature’s enumerated powers unconstitutional.
§  First establishes the court has power to review executive action and then grants the court has power to review legislative action
o    Marshall’s Decision:
§  Right to position
·         Yes, signed by President and sealed and delivered to Secretary of State so had right to position
§  Remedy available              
·         Yes, if there is a legal right there is a legal remedy
§  Congress cannot expand the Court’s jurisdiction
·         The Constitution states that “the Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction.”
·         If it had been intended to leave it in the discretion of the Legislature to apportion the judicial power between the Supreme and inferior courts according to the will of that body, this section is mere surplusage and is entirely without meaning.
§  Supreme Court does not have original jurisdiction to issue writs of mandamus
·         Court’s power to issue writ of mandamus (order from the court mandating the officer to take action) would force Secretary of State to give Marbury the position
·         In this case, to issue a writ of mandamus under the authority of Section 13 under 1789 Judiciary Act but the act extending the SC jurisdiction was unconstitutional (original jurisdiction only in narrow range of cases)
o    Act: “The SC shall have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after specially provided for; and shall have power to issue…writs of mandamus in cases warranted by the principals and usages of law, to any courts appointed, or persons holding office, under the authority of the US.”
·         If wouldn’t have done it this way, Jefferson administration may have not followed the order to give Marbury the position and Court would be weak
o    Techniques:
§  Structural implications from a written constitution
§  Article III, Sec. 2, clause 2 gives original jurisdiction to the SC in finite set of cases, “In all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a state shall be a party, the SC shall have original jurisdiction. In all other cases before mentioned, the SC shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make.”
·         Congress cannot expand original jurisdiction
·         Marshall identifies Judiciary Act as expanding the SC original jurisdiction which is unconstitutional
§  Article III, section 2, clause 1: “The judicial power shall extend to all cases, in law and equity, arising under the Constitution…”
·         Power to interpret the Constitution
§  Article VI, clause 2: “This Constitution and the laws of the US shall be made in pursuance thereof; and all treatises made, or which shall be made, under the Authority of the US, shall be the supreme law of the land…”
·         Reading more into the provisions, doesn’t mention the SC
§  Judicial oath of office
·         So what, every officer takes the oath
o    Cases that Use Marbury:
§  Cooper v. Aaron: 1958, desegregation case that affirms Madison
·         Rule: State government officials are bound to comply with Supreme Court rulings and court orders based upon the Supreme Court’s interpretation of the Constitution.
§  Brown v. Board of Education: 1954, separate is inherently unequal but no remedy given. In Brown II, the Court decides that district courts judges should fashion desegregation decrees (better local understanding). The Governor of Arkansas, Faubus, refused to desegregate in Little Rock in order to “avoid chaos,” delaying integration. He sends in the National Guard and Eisenhower sends in paratroopers. The district court granted delay but reversed on appeal. Faubus argued not a party to Brown case and therefore not subject to the ruling.
·         SC ruled that constitution is supreme law of the land. Marshall said in Marbury: “duty of judicial department to say what the law is,” Article VI makes the interpretation of the 14th Amendment (SC interpreting the Constitution) in Brown binding on the states.
       Court as the Final Say: Pros and Cons
o    Arguments for the court being the final arbiter of the Constitution’s meaning
§  Stability: don’t have different interpretations from different branches, political consistency
§  Not influenced by political constituency, but still are not completely neutral
§  Must justify its decisions in written form, assumption in more thoughtful/careful
§  Counter-majoritarian: Arguably protects the interests of minorities (Brown)
·         But in a democracy majority rules, anti-democratic if the minority interests conflict with the majority opinion, court is not accountable to the public
o    Arguments against the court being the final arbiter of the Constitution’s meaning
§  Jefferson- makes the judicial branch despotic branch
·         No positive law, just reactionary
·         9 members, divergent views, appointed by different presidents so unlikely a cohesive view to turn into a monarchy
§  Lincoln- people will have ceased to be their own rulers
·         In response to Dred Scott decision
       Martin v. Hunter’s Lessee: 1816, Virginia SC challenges the US SC’s power over them. During the Revolutionary War, seized Fairfax’s property and given to Hunter, after the war Fairfax gives land to Martin. In 1810: Virginia SC holds for Hunter since Martin was not a Virginia resident and Virginia had protected title before the treatises. In 1813, US SC rules in favor of Martin because Virginia had not protected title before the treatises and non-residents could inherit land. The land was ordered to be given to Martin. Virginia does not follow the mandate of 1813, says the SC does not have the authority of interpreting the federal law.
o    Virginia argues separate sovereignties: SC can remove cases, but when cases are going through the state system and there is a decision by the state court, the SC of a separate sovereignty does not have power over them (just like no power over different country).
o    Court disagrees:
§  Article III: Judicial power is existed to “all cases” arising under Federal law
§  Article VI: Supremacy clause, state judges are bound by the US Constitution so their constitutional interpretations are subject to review by the SC
§  Congressional obligation to secure uniformity of federal law: equal administration of law, no forum shopping
o    Rule: The U.S. Supreme Court has appellate jurisdiction over state court decisions involving federal law.
       Michigan v. Long: 1983, (O’Connor) A sheriff searched Long’s car. On appeal, Long argued unlawful search and seizure (4th Amendment) and violation of a Michigan provision. MI court overturned opinion in favor of Long. MI state appealed to SC. Long argued the SC did not have jurisdiction since there was an adequate and independent state decision and state grounds which decided the case.
o    Rule: If there is not a plain statement that a lower state court’s de

her the old rule unworkable and people don’t rely on it
       Prudential: practical wisdom of using the courts in a particular way to advance doctrines
o    Separation of powers and standing prudential arguments
       Cultural: widely shared cultural norms
o    Justice, fairness, and autonomy
o    Plyler v. Doe: 1982, voided a TX law denying free public education to children illegally present in the US
§  Children not responsible for being here illegally and cannot change their own status
o    Romer v. Evans: 1996, CO constitutional amendment that prohibited government from making antibias laws in favor of homosexuals was ruled unconstitutional
§  Rule: A bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.
TIERED REVIEW (not in Constitution, Court itself adopted)
       MINIMAL SCRUTINY: government act must be rationally related to any legitimate government objective
o    Key Words: rational, legitimate
o    Burden on the challenger that it is not related to government objective
o    Anything within the powers of the government to act
o    Social and economic legislation, general standard, usually in favor of government
       INTERMEDIATE SCRUTINY: government act must be substantially related to an important government objective
o    Key Words: substantial, important
o    Burden on government to come forward to demonstrate important governmental interest and act substantially related to it
o    Sex classifications and illegitimacy
       STRICT SCRUTINY: government act must be necessary to accomplish a compelling government objective
o    Key Words: necessary, compelling
o    Burden on the government to prove law is necessary to complete compelling government objective
o    Racial classifications, usually act is struck down
       Limits on Power
o    External (not in Art. III) and Internal (in Art. III)
       Direct Political Controls
o    Amending the Constitution (difficult)
§  Proposal by 2/3 vote of Congress or Congress constitutional convention upon application of 2/3 states
§  Then ratification by ¾ state legislatures or state ratification convention
o    Appointment of Justices
§  President appoints judicial nominees (Article II, Sec. 2) and then approved by Senate
§  ¼ nominees not confirmed, unexpected outcomes (Warren, Brennan, Souter, Blackmun)
o    Impeachment of Justices
§  Art. II, Sec. 4: civil officers can be removed from office for treason, bribery or other high crimes and misdemeanors
§  Art. I, Sec. 2: House of Rep power to impeach
§  Art. I, Sec. 3: Senate tries all impeachment, impeached with 2/3 vote
o    Art. III, Sec. 2, clause 2: Assigns the “judicial power of the United States” to one Supreme Court and “such inferior courts as the Congress may from time to time ordain and establish.”
o    Ex Parte McCardle: 1868, After the Civil War, Congress imposed military government on many former Confederate States by authority of the Civil War Reconstruction Acts. McCardle was a newspaper editor held in military custody on charges of publishing libelous and inflammatory  articles. McCardle filed a habeas corpus writ claiming that Congress lacked authority under the Constitution to establish a system of military government. The Act authorized federal courts to grant habeas corpus to persons held in violation of their constitutional rights and granted the Supreme Court the authority to hear appeals. The circuit court denied the habeas corpus writ but the Supreme Court sustained jurisdiction to hear an appeal on the merits. After arguments were heard however, Congress passed an act on March 27, 1868, repealing the portion of the 1867 Act that allowed an appeal to the Supreme Court and the exercise by the Supreme Court of jurisdiction on any such appeals, past or present.
§  The Constitution confers jurisdiction “with such exceptions and under such regulations as Congress shall make.” Due to the constitutional authorization, the repeal of jurisdiction is valid.
§  Rule: Congress, by repealing the United State Supreme Court’s  appellate review of writs of habeas corpus, constitutionally took jurisdiction over McCardle’s case away from the Supreme Court.