Constitutional Law 1
Prof. Goldstein
Spring 2012
Saint Louis University Law
Casebook: Constitutional Law by Goldstein (Lexis Nexis)
TYPES OF INTERPRETATION AND MODES OF ARGUMENT
· Textual
o Proceeds from the text of the Constitution
o “The Constitution means ‘x’ because right here in the Constitution it says, ‘x.’
o Problems with Argument:
§ Textual Ambiguity à doesn’t always explicity address the issue
§ Constitutional Conflict à words in Constitution contradict each other
· Intent of Framers / Originalism
o Doctrine posing the question: “What did the Fathers/Founders want the Constitution to mean?”
o Popular argument à logic in believing that the writing ought to mean what the authors intended it to mean
o Problems with the Argument:
§ It’s hard to determine what individual intent was
§ Not sure who to look at: people who wrote the Constitution or people who ratified the Constitution
§ Intent can change
· Example: Grandpa said in his will that his grandson could inherit $$ if he ate “healthy,” the since then the word “health” has changed in meaning.
· Structural
o Focus on the division of the federal government into three distinct branches—separation of powers
o Focus on the division of power between the federal government and the states—federalism
o May be used to bolster textual arguments
· Precedent/Doctrinal
o The Constitution means ‘x’ because in an earlier case, the Supreme Court said that it meant ‘x.’
o Problem à How do you know when to blindly follow precedent or when to charter a new course?
· Ongoing History
o The Constitution means ‘x’ because for a considerable amount of time, we’ve acted as though the Constitution meant ‘x.’
· Pragmatic/Consequential
o The Constitution means ‘x’ because by interpreting the Constitution in that way, it will lead to better consequences
o It just makes sense.
· Ethical/Moral
o Usually weighing competing views of right and wrong
o The Constitution means ‘x’ because that is the most ethical and moral way of understanding that term, line, or phrase
· Competing Dispositions of Justices
o Originalists / Interpretivists
§ Emphasize textual, original intent, and structural arguments
§ Justice Thomas (original intent)
o Non-Interpretivists / Living Constitution Proponents
§ View the Constitution as a living document à the meaning of the Constitution changes to accommodate different times and experiences
§ Emphasize precedent, ongoing history, or pragmatic/consequential arguments
JUDICIAL REVIEW
MARBURY v. MADISON (1803—Chief Justice Marshall)
o Historical Background:
§ After Independence, the 13 colonies wanted to remain 13 free and independent states completely sovereign to themselves à formed the Articles of Confederation
· Merely created an alliance between the 13 original States
· While there was a Congress of the Confederation, there was no judicial or executive branch à Congress had limited powers (to conduct war, could enact laws but had no way of enforcing them—compliance depended on State cooperation)
§ Individual State Constitutions were reactions to the English Government
· Had strong legislatures and weak judicial and executive branches à most state legislatures appointed the executive and the judiciary for short terms and could remove the justices at will and controlled their salaries
· Backfired because strong Legislatures absorbed the power à widespread corruption of the legislative process
§ By 1780s, states had amended their constitutions leveling the three branches, by more completely separating the powers among the branches
· Executive enhanced: Governor elected by the people, longer term, could veto legislation
· Judiciary enhanced: state courts declared that there were judicially enforceable limits to the kinds of laws the legislature could enact.
§ 1787 the Constitutional Convention was held as a result of an increase in Federalist popularity à the House would be elected by the people, the Senate from the state legislatures, and the President by the college of electors.
§ The Federalist Influence à first Congress and President took office 1789; Federalists controlled everything until the Alien and Sedition Acts. During the election of 1800, Republicans swept the elections (Thomas Jefferson was President)
· Judiciary remained Federalist although Congress and President were now Republicans. à Just before the Federalists left government, Ellsworth stepped down allowing Adams to replace Chief Justice with John Marshall, a staunch Federalist
· Circuit Court Act decreased justices from six to five, therefore getting rid of any opportunity the Republicans might have of filling a judicial vacancy.
· Organic Act of the District of Columbia 1801 à authorized President Adams to appoint as many justices of the peace for the District of Columbia and so he chose 42. One of the new justices was William Marbury
§ Republicans were furious and began an assault on the judiciary à since this was a Federalist court who had enforced the Sedition Act against Republicans
· Jefferson ordered Sec. of State James Madison to withhold the commission of 17 of the 42 justices of the piece (William Marbury’s was included)
· Congress repealed the Circuit Court Act
· Congress passed a law cancelling the June 1802 and the December 1802 terms for the Supreme Court (caused the delay in hearing in Marbury)
· Threatened justices with impeachment à Some members of Congress warned the justices that if they ordered Madison to give Marbury his commission they would impeach them.
o Case Background:
§ Marbury brought suit in the Supreme Court under §13 of the Judiciary Act of 1789
§ The Court had to interpret the statute as allowing original jurisdiction over his writ of mandamus but then declared the statute unconstitutional
o Marshall found the Judiciary Act unconstitutional.
§ Marbury had a right to the appointment
· If the appointment is at the will of the President, he may not have the right to the commission à up for Marshall to decide
· Marshall decides that Marbury’s appointment is not removable at the will of the President à it is instead vested and protected by the laws of the country
§ Marbury has the right to a remedy
· The law applies to citizens AND to rulers à where there is a duty created, there ought to be a judicial remedy
· Where an officer has a specific duty has a specific duty and violates the duty, which results in an infringement of an individual’s rights, the officer can be taken to court.
o By Adams’ failure to deliver the commission, he is violating a duty and therefore, Marbury can bring him to Court.
o Where the executive is simply exercising some political or discretionary function, they cannot be hauled into court à only accountable to his political character and to his own conscience.
§ Marshall is not entitled to the remedy because of JURISDICTIONAL PROBLEMS
· Article III, Section 2, Clause 2: The Constitution did not grant the Court original jurisdiction in this case and §13 of the Judiciary Act did.
o Constitution only allows original jurisdiction for cases involving an ambassador
State Supreme Court cases in 3 instances:
· Where the state court has invalidated a federal law
· Where the state court has state law against a federal claim
· Where the state court denied a federal claim
§ The Supreme Court will not review state court rulings of state law.
o Justice Story’s Argument
§ TEXTUAL à Article III à The language of the article throughout is manifestly designed to be mandatory upon the legislature
· Section 1 = The vesting/ ordain and establish clause – “the judicial power of the United States shall be vested in one Supreme Court, and in such other inferior courts as the Congress may, from time to time, ordain and establish.”
· Section 2 = gives the Court its original and appellate jurisdiction
§ STRUCTURAL à By looking at the structure of the Constitution, there are three branches of government
· Unless federal courts are given by Congress the jurisdiction they’re supposed to have, it would defect the object of the Constitution
· If Congress did not establish any inferior courts, the Supreme Court would have no appellate jurisdiction and since it is expressly given appellate jurisdiction, it must be that it can hear the cases pending in state courts.
§ TEXTUAL à Supremacy Clause: says state judges are bound by the Constitution
· Not merely deciding state law, but also the “supreme law of the land”
§ STATE SOVEREIGNTY à There are semblances of sovereignty stripping in the other branches of government that are recognized; “surely the exercise of the same right over judicial tribunals is not a higher or more dangerous act of sovereign power.”
§ UNIFORMITY OF DECISIONS ARGUMENT à When there are different decisions in different states, the Court needs to be able to give an answer.
· “If there were no revising authority to control these jarring and discordant judgments, and harmonize them into uniformity, the laws, the treaties, and the Constitution would be different in different states, and might, perhaps, never have precisely the same construction, obligation, of efficacy, in any two states”
§ HOLDING: State courts are subject to judicial review.
Fletcher v. Peck (1810) à first time state law was unconstitutional
o Since Georgia was part of the Union, it was subject to those laws, which were supreme.
o Not declaratory enough to maintain Supremacy of the Constitution.
Cohens v. Virginia (1821—Chief Justice Marshall)
o Factual background: An appeal from a conviction under Virginia law banning the sale of lottery tickets, since defendant was contending that he was selling tickets for a lottery authorized by federal law.
o Marshall’s Argument:
§ The states were not independent sovereignties but members of one great nation
§ “Is it so unreasonable that the judicial power should be competent to give efficacy to the constitutional laws of the legislature?”
§ Holding: Allowed to sell tickets à subject to review of state legislation
