I. Background
A. Balance of Power
1. Federalism-vertical tension between federal and state govt
2. Separation of powers- horizontal tension between the three branches of the federal govt
B. Articles of confederation
1. common defense
2. economic considerations
3. required unanimous decision to change
C. Differences between the Constitution and the Articles of Confederation
1. Constitution established a national govt with the ability to tax
II. Judicial Review
A. Definition-the doctrine that the SCT has the power to invalidate govt actions which are contrary to the Constitution.
B. Limitations on Judicial Review
1. Statutory
2. Advisory opinions
3. Political questions
4. “standing to sue”
a. prudential (court imposed)
b. article III
C. Judicial Review of co-equal Branches of govt—Marbury v. Madison (CB 1)
1. Facts: Marbury sued for failure of sec of state to deliver his judicial commission. Congress enacted sec 13 of Judiciary act of 1789 extending jurisdictional power of SCT beyond the Constitution.
2. Arguments and Issue: SCT has the power to review and invalidate the acts of congress and the executive which are contrary to the Constitution. If there is a conflict between the constitution and a federal law, SCT must declare the federal law unconstitutional. SCT has final say in interpreting the constitution.
3. Checks on potential abuses of Judicial Review:
a. court reverses itself
b. constitutional amendment
c. pres appointment power
d. congress controls the size of the court and could abolish lower cts
e. appellate jur of SCT controlled by congress
f. ct has no enforcement power
g. congress funds the court
h. congress has the power to determine the term of the ct (when the ct will sit) and can determine that the court will not sit.
4. Justifications for Judicial Review
a. Constitutional-interpretation of Article III §2
b. Philosophical
i. judicial independence
ii. constitution is paramount law
iii.common law tradition of cts interpreting the law
D. Judicial review of State actions
1. Cooper v. Aaron—CB 8
a. Facts: Arkansas not part to Brown v. Board of Ed; therefore, felt that they weren’t bound by SCT holding.
b. State’s Arguments:
i. Nullification-states have the power to declare nat’l laws unconstitutional
ii. Interposition-states have the power to protect their citizens and can say that state does not have to follow nat’l laws because they are unconstitutional.
c. Holding: Constitution is the supreme law of the land so a ruling construing it is binding. Need for uniform nat’l laws
2. Martin v. Hunter’s Lessee
a. Facts: VA passed an act which prohibited inheritance by an enemy alien.
b. Issue: Whether SCT had the right to review a st law that was inconsistent with federal law.
c. Holding: SCT may review and invalidate decisions of the highest court of a state which are inconsistent with the US constitution.
d. Constitutional theories set forth in Martin:
i. popular sovereignty-power resides in the people not the state; makes the state subservient to the fed govt.
ii. implied powers-construe the fed powers generously
iii.supremacy of federal law
iv.finality of SCT interpretation.
III. Limitations on Judicial Review (4)
A. Statutory
1. Ex Parte McCardle—CB 26
a. Facts: Confederate sympathizer paper editor was arrested by military govt.
b. Issue: Can congress alter the appellate jur of the SCT?
c. Holding: Yes, congress can alter the app jur of the SCT when such jur is established by statute. Some amount of app jur is implicit in the constitution.
2. Similarities between McCardle and Marbury
a. ct in McCardle was ok with giving up jur because they had another way to get it
b. Similar in that both cts were willing to gove up some power to solidify the union.
c. Different in that Marshall dealt with the merits of Marbury in dicta while Chase avoided discussing the merits altogether.
B. Advisory opinions
1. definition- a formal opinion by a Judge, court, or law officer upon a question of law submitted by a legislative body, govt official, or other interested party, but not actually presented in a genuine adversary proceeding; deemed by the court to be hypothetical.
2. Declaratory judgements-a judgement of the court the purpose of which is to establish the rights of the parties or express the opinion of the court on a question of law without ordering anything to be done; not asking for relief; is a real controversy; deemed by the court to be more concrete
3. Constitution in Article III limits the jur of the SCT to cases or controversies (requires concrete disputes between parties)
4. Muskrat v. US—CB 32
a. Facts: congress passed an act to grant land to tribes; extended dates for sign-up; Muskrat felt that this was unconstitutional because ir diluted his land ownership. Govt paid attny’s fees for both sides.
b. Issue: Was this a case or controversy under Article III?
c. Holding: No, there are no adverse parties and no rival interest is at stake. This matter was not ripe for adjudication. Advisory opinions undermine the authority of the court.
5. Why won’t the court render advisory opinions?
a. undermines the prestige of the court
b. not binding on potential liability
c. would encourage collusive suits (people would lie to get advice)
d. leads to uncertainty and discord among other branches of govt and states.
6. 11th Amendment
a. requires some cases to be first brought in state court
b. prevents congress from using Comme
ess have the power to incorporate a nat’l bank?
(2) does MD have the power to tax the fed govt?
c. Holding: (1) the act of chartering the nat’l bank was valid because it bore a reasonable relationship to (was necessary and proper) the federal govt’s enumerated powers to tax, borrow money, regulate commerce, etc. (2) MD tax was invalid because it interfered with the exercise of a valid federal activity; the SCT said that the power to tax is the power to destroy.
d. McCulloch is based on a theory of sovereignty. If a state cannot destroy federal sovereignty, then the fed govt should not be able to destroy state sovereignty. Later cases made immunity reciprocal and extended its application.
e. Marshall believes that the ambiguity in the constitution was intentional because the framer couldn’t foresee all that would happen so they left the document open to be able to accommodate.
V. State Powers in Light of the Commerce Clause
A. Article I §8 cl. 3 – congress has the power to “regulate commerce with foreign nations and among the several states and with Indian tribes.”
B. Purpose of the commerce clause:
1. to give the federal govt trade powers; avoid tariffs and barriers between the states.
2. To give the fed power to regulate multi-state economic problems (ie: coin money).
C. Federalism concerns:
1. federal commerce-concern = trampling state sovereignty
2. dormant commerce clause (fed has not regulated so what is the state’s prerogative)-concern = federal prerogative
3. to decide which of these applies you need to determine who is doing the acting.
D. Early cases
1. Gibbons v. Ogden—CB 72
a. Facts: NY granted an exclusive license to operate a steamboat to Livingston who then assigned it to Ogden. Ogden sought to enjoin Gibbons from also operating a steamboat in NY.
b. Marshall defines commerce using Article I §9 cl. 6 as commerce intercourse (more than buying and selling; broad definition)
i. includes the power to regulate transportation
iii.power to regulate commerce which concerns more than one state.
c. Commerce clause deals with interstate commerce not intrastate (completely internal) commerce.
d. Webster’s four ways to interpret the commerce clause:
