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Constitutional Law I
St. Johns University School of Law
Salomone, Rosemary C.

CONSTITUTIONAL LAW—SALOMONE, SPRING 2016
 
I. ROLE OF THE SUPREME COURT
Articles of Confederation
The first written document enumerating the role of the newly formed government
It had many problems—the main was that it made the central, federal government very weak
Why do this?
Remember History Class—the republic was newly formed, the people were in fear of a central government becoming too strong, didn’t want the government to become a new “tyrant king”
What were the problems?
Government lacked power:
No ability to regulate interstate commerce
No power of taxation
Each state had its own currency
No bill of rights
No executive or federal judiciary
Federalism vs. Anti-Federalism
Political-philosophy at odds during this time period
Federalists—those who were in favor of a strong, central government with sovereignty over the states
The Federalist Papers—authored by Madison, Hamilton, Jay; written “propaganda” to promote federalism and new federal government (also wrote in favor of adoption of the US Constitution)
Looked at as classic pieces regarding constitutionalism and democracy
Lay out for display the thinking of the framers of the Constitution
Anti-Federalists—those who believed in greater autonomy of the individual states and greater emphasis on state sovereignty
View is inconsistent with Republicanism
Didn’t like representative democracy, emphasis on commerce and creation of a remote national government that was proposed by the federalists
Thomas Jefferson was a prominent anti-federalist
1789 Philadelphia
Framers meet to rewrite the Articles of Confederation—“devise further provisions” to render Constitution adequate to the exigencies of the Union
End result was a new governing document
The Constitution
Ratified in 1789, with Bill of Rights ratified and adopted in 1791
“defined powers” for each branch of government
Ability to amend the document—however this is very hard to do, preserving the integrity of the document in its original form
How was it different from the Articles of Confederation?
Constitution “defined the powers” for each branch of government
Creates system of checks and balances between each branch of government
Article Iàlegislative branch, enumerates power of Congress
Article IIàexecutive branch, enumerates power of the President
Article IIIàJudicial branch, calls for the creation of one Supreme Court, enumerates its power/jurisdiction
creates a representative form of democracy
The federal government is a government of LIMITED POWERS—for a federal action to be legitimate, it must be AUTHORIZED
The Constitution is what grants the authorization
Article III
The Constitution authorizes a federal court system under Article III, which states that federal courts shall have judicial power over all “cases and controversies”
Arising under the Constitution, laws, or treaties of the United States
Of admiralty and maritime jurisdiction
In which the United States is a party
Between two or more states
Between a state and citizens of another state
Between citizens of different states
Between citizens of the same state claiming lands under grants of different states
Between a state or citizens thereof and foreign states, citizens or subjects
Judicial Review
Definition:
The court can review legislative and executive decisions
Marbury vs. Madisonà1803 case from the Supreme Court which legitimizes the concept of judicial review. Written by Chief Justice John Marshall
Factual History:
Madison was the Secretary of State under new President Jefferson. Marbury was a judge who was trying to get his commission that was signed by Adams, but never delivered. Federalists wanted to fill the court with judges following their political ideology. Commissions for the judges were signed and confirmed by the Senate, but not delivered by Madison.
Problem:
 Case reached SCOTUS under original jurisdiction, but Article III does not grant original jurisdiction over issuing writs of mandamus on public officials.
Conflict between Article III of the Constitution and the Judiciary Act of 1789 (which was an Act of Congress)
Solution:
Marshall is given the opportunity to legitimize the ideas of the reviewing of acts by other branches
“artfully crafted opinion”—Marshall tactfully writes the opinion in a way that will not create conflict between the Anti-Federalist President and the mostly federalist Court
Uses textual evidence from Constitution:
Article III
Article VI (The Supremacy Clause)
But you must INTERPRET the language from this section. There is no express provision granting judicial review. It comes from the decision as a whole.
End Result from Marbury vs. Madison:
Supreme Court will dictate what the law is:
“It is emphatically the province and duty of the judicial department to say what the law is…So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law’ the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial review”
Court has the authority to review two types of acts:
Acts of the legislature (i.e. enacted laws that are Constitutional)
A specific duty by an agent of the executive that is assigned by law
“where the heads of departments are the political or confidential agents of the executive, merely to execute the will of the President

upersede our decisions interpreting and applying the Constitution”
Supreme Court decisions and the Executive
It has never been suggested that the executive would disregard the court or defy it
Political Restraints—how can other branches counter SCOTUS
Selection process
There is some legislative control over appointments. Process is a nomination and then a review by the Senate Judiciary Committee
In recent years, the Senate has taken a much more active role
Impeachment
Justices typically serve a life term (“good behavior”)
A justice cannot be impeached due to a difference in political ideology
Structural interference
By either legislative or executive action
Ex: FDR’s court packing plan to change the number of justices from 9 to 16, in order to get his New Deal legislation passed
Court Stripping
Legislative action (by Congress)
Article III, §2 gives Congress the power to make “exceptions” to the Supreme Court’s appellate jurisdiction.
But does this power permit Congress to strip the Supreme Court of power over specific subject matters?
Ex Parte McCardle (1869)—upheld that there could be a selective withdrawal of jurisdiction. Has been read as giving congress full power to REGULATE AND LIMIT the Supreme Court’s appellate jurisdiction.
“the act of 1868 does not except from that jurisdiction any cases but appeals from Circuit Courts under the act of 1867. It does not affect the jurisdiction which was previously exercised”
POSSIBLE LIMITATIONS:
Congress cannot eliminate all avenues for SCOTUS review
If Congress eliminates SCOTUS review of certain cases, it must permit jurisdiction to remain in some lower court
Amendments—Article V
There are two main methods by which an Amendment to the Constitution can be passed/ratified:
2/3rds of both houses propose an amendment which must be ratified by 3/4ths of the states
This first method has been used traditionally
2/3rds of the states may apply to Congress to call a constitutional convention “for proposing Amendments”
It is very difficult to propose and successfully ratify an amendment
Congress has considered over 11,000 amendments in the nation’s history, but has proposed only thirty-three with necessary requisites