Chapter 1 – The Nature & Sources of the Supreme Court Authority
Articles of Confederation leading to the Constitution. Considerations for enacting a common constitution are the creation of an army, navy, create a uniform currency, ability of levy taxes, roads, lighthouses, ports, post offices, make treaties and ensure a free trade zone. The articles of confederation fell seriously short on a common federal entity – the US Constitution will solve this problem. The US Constitution makes us free, secure and rich.
Judicial Review: The Bases and Implications of Marbury v. Madision
This case helped define the role of the judiciary in the federal system. Marbury stands for the proposition to establish of judicial review. The Constitution does not give explicit authority to the judiciary to review acts of congress as constitutional or not.
Interpreting the Constitution is not just a matter for the Supreme Court but for each and every one of us (We The People), executive, legislative branches and the states. Article VI, §III shows that congress, federal and state judges, members of the state legislatures, executive officers, state governmental officers. Under Article II, §1 outlines the oath of the president to preserve, protect and defend the Constitution. You must understand the Constitution before you can interpret, defend and/or change it.
Marbury v. Madison (p. 3)1803 US Supreme Court
Facts: The act authorizing this act is the Organic Act of the District of Columbia which created 42 Justice of the Peace positions in DC – all of which were quickly confirmed. Three step process for installing a new justice – Nomination-Confirmation-Appointment (signing the commission). Then the commission goes to the Secretary of State for Seal of US. President Jefferson’s secretary of State, Madison, refused to deliver a commission granted to Marbury by former President Adams. The congressional Judiciary Act of 1789 only gives the writ of mandamus to the Court as appellate jurisdiction. The problem is that the case was brought right to the Supreme Court.
Rule: The Supreme Court has the power, implied from Article VI, §2 of the Constitution to review acts of Congress and if they are found repugnant to the Constitution, to declare them void.
Comments:The Court found that the commission was valid and Marbury had a legal right to it as well as that it should have been delivered by Madison (even under Jefferson). The president and officers have certain political responsibilities (political questions) and legal responsibilities (legal questions). This case is the cornerstone of American Constitutional law and is illustrious of the concept of Judicial Review. CJ Marshall found that if the Supreme Court identifies a conflict between a constitutional provision and a congressional statute, the Court has the authority (and the duty) to declare the statute unconstitutional and to refuse to enforce it. Therefore, Marshall concluded, the requested writ of mandamus could not be issued. In reaching this conclusion, Marshall made two interlocking arguments.
a) Constitution is paramount: The very purpose of the written constitution is to establish a fundamental and paramount law. It follows from this that any act of the legislature repugnant to the Constitution must be void.
b) Who Interprets: “It is emphatically the province and the duty of the judicial department to say what the law is.” That is, it is the court, not the legislature, which must make the determination whether, in a particular case, an act of Congress is in conflict with the Constitution. To deny the permissibility of judicial review of the constitutionality of a congressional statute would be to say that the courts “must close their eyes on the constitution and see only the law. This doctrine would subvert the very foundation of all written constitutions.
There are two ways to read the exceptions clause. You can read it that Congress has the power to add the writ of mandamus to the original jurisdiction as outlined in Article III, §2. Or you can read it that the Constitution is static and that you cannot (with the Judiciary Act of 1789) add to the original jurisdiction the ability to issue writs of mandamus. Congress can vest the power in the lower federal courts to hear cases only where it doesn’t conflict with the Supreme Courts right of review. This is a kind of concurrent jurisdiction.
NOTE: But Marshall holds that there should be no addition and no subtracting. It is thought that he was right about addition but not of subtracting.
Agency Costs (In Relation to Marbury): You can put instructions to the agent in wiring, make them specifics or you can have another agent supervisor. In the case the People are the CEO, the agents are the three branches of government. We put the instructions in writing (the Constitution), make them specific in the Constitution and outline rules for them to supervise each other though the checks and balances in the Constitution so that each branch stays within it’s bounds/duties as outlined by the written Constitution. The Court’s job, as outlined in Marbury, is to ensure that the statutes enacted by Congress are not repugnant to the Constitution.
Political Questions: Justiciability is the requirement that the case not require decision of what is commonly called a “political question.” The scope of the “political question” doctrine is even less well-defined that other aspects of justiciability. The doctrine is less important today that it was in prior periods; in only a few cases since 1970 has the Court found an issue to be a non-justiciable political question.
The phrase “political question” is something of a misnomer. The Court will not treat as non-justiciable political question an issue which merely happens to involve politics, evening if politically-related issues are at the heart of the case. Rather, the political question doctrine seems to be a meshing of two sets of principles.
a) Separation of Powers: Separation-of-Powers principles, by which , as a constitutional matter, the Court will not decide matters which it concludes are committed by the Constitution to other branches of government for decision; and
b) Prudential Concerns: various “prudential” considerations, because of which the Court concludes that it is unwise, even if not strictly unconstitutional, for it to decide the case.
Baker v. Carr (p. 33)1961 US Supreme Court
Facts: Baker alleged that because of population changes since 1901, the 1901 State Apportionment Act was obsolete and unconstitutional, and that the state legislature refused to reapportion itself.
Rule: The fact that a suit seeks protection of a political right does not mean it necessarily presents a political question.
Comments:According to Justice Brennan, it is a mistake to think that every issue concerned with legislative districting raises political questions. The case in Colegrove was brought under Guaranty Clause and this clause is of such political nature that it is nonjusticiable. But the current case is brought under Equal Protection Clause and the court has to power to decide under this issue. According to Justice Brennan, this case involves no factors that would render it to be a political issue and beyond the power of the court. “The question here is the consistency of state action with Federal Constitution. We have no question decided, or to be decided, by a political branch of government coequal with this Court. Nor do we risk embarrassment of our government abroad, or grave disturbance at home, if we take issue with Tennessee as to the constitutionality of her action here challenged. Nor need the appellants, in order to succeed in this action, ask the court to enter upon policy determinations for which judicially manageable standards are lacking.”
§ Marshall (in Marbury) distinguished LEGAL from POLITICAL questions.
§ Who can be a party (doctrine of Standing), What kinds of subject matter (doctrine of Political Question) and When (doctrine of Rightness/Mootness)
§ Two main features of the Political Question Doctrine
1) Constitutional – Courts must respect the political judgment of coordinate branches with regard to their duties enumerated in the Constitution. This is out of respect and deference.
2) Prudential – There are some questions/topics/subject matter which are inappropriate for courts to meddle with. Avoidance of what might mar the courts image.
General unifying principle: The factors which lead a court to conclude that an issue is a political question are not easily summarized into one overarching principle. Perhaps the most useful formulation is that proposed by Tribe; he asserts that in deciding whether an issue is a non-justiciable political question, the court is “determining whether constitutional provisions which litigants would have judges enforce do in fact lend themselves to interpretation as guarantees of enforceable rights.”
Factors: For now, what is significant is that the Court in Baker announced a series of factors, at least one of which (the Court asserted) must be present in order to make an issue a non-justiciable political question. Each of these factors, the Baker Court argued, relates in some way to the separation of powers. The Court listed the following factors (the first two are Delahunty’s Test):
1) Commitment to another branch: A “textually demonstrable constitutional commitment of the issue to a coordinate political department” (i.e. to Congress or to the President);
2) Lack of Standards: A “lack of judicially discoverable and manageable standards for resolving” the issue;
3) Unsuitable policy determination: The “impossibility of deciding [the issue] without an initial policy determination of a kind clearly for non-judicial discretion”;
4) Lack of respect for other branches: The “impossibility of a court’s undertaking independent resolution without expressing lack of the respect due co-ordinate branches of government”;
5) Political decision already made: An “unusually need for unquestioning adherence to a political question already made”; and
6) Multiple pronouncements: The potential for “embarrassment from multifarious pronouncements by various departments on one question.”
Constitutional & Prudential Limits on Constitutional Adjudication
Nixon v. United States (p. 41)1993 US Supreme Court
Facts: Nixon, Chief Justice, U.S. District Ct. Mississippi, was convicted by a jury of two counts of making false statement before a federal grand jury and sentenced to prison. The Senate initiated a committee in line with Rule XI, and the Senate heard testimony, queried each of the parties, and voted by over two-thirds to convict, thereby removing Nixon of his judicial seat. Petitioner argues the word “try” imposes that the Senate trial must be as a judicial trial. Respondent argues there is no identifiable limit on the word, and therefore is not a political question.
Rule: An action is non-justiciable (an actual controversy that is capable of determination by the court) where there is a textually demonstrable constitutional commitment of the issue to a coordinate branch of government or lack of judicially discoverable and manageable standards for resolving it.
Comments:In cases of impeachment, the Senate is the Supreme Court. The
nstitutionality of the Bank: In concluding that the Bank was constitutionally charted, Marshall first disposed of Maryland’s argument that the powers of the national government were delegated to it by the states, and that these powers must be exercised in subordination to the states. Marshall concluded that the powers come directly from the people, not from the states qua states.
D. Grant need not be explicit: Marshall then turned to the issue of whether the constitutional grant of the particular power (here, the power to charter a bank or corporation) was required to be made explicitly in the Constitution. Marshall concludes that particular powers could be implied from the explicit grant of other powers: “A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind… [We] must never forget that it is a constitution we are expounding.”
a. Corporation allowed: More specifically, Marshall found that Congress had the power to create a corporation (in this case, the bank), if this was incidental to the carrying out of one of the constitutionally-enumerated powers, such as the power to raise revenue.
b. “Necessary and proper” clause: Marshall relied upon the “necessary and proper” clause as a justification for Congress’ right to create a bank or corporation even though such a power was not specifically granted in the Constitution. In perhaps, the most significant part of the opinion, he rejected the contention that “necessary” mean “absolutely indispensable.” Instead, he stated that: “let the end be legitimate, lit it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, [and which are consistent] with the letter and spirit of the constitution, are constitutional.]”
i. Summary: Thus so long as the means is rationally related to a constitutionally-specified object, the means is also constitutional (assuming that it down not violate any specific prohibition, such as those from the Bill of Rights.)
c. Support for conclusion: To support his liberal interpretation of “necessary and proper,” Marshall pointed to a number of situations where Congress’ power to carry out constitutionally-specified objectives had been liberally interpreted. For instance, the Constitution does not contain any specific grant of the power to punish the violation of federal laws, yet this power had always been inferred. Similarly, the power “to establish post offices and post roads” had been substantially expanded, to include the federal prohibition on mail theft. Yet these exercised of power could not be termed “indispensable” to a carrying out of the constitutionally-specified ends.
d. Separation of powers rationale: Marshall also based his opinion upon separation-of-powers principles: An examination by the judicial branch into the “degree of necessity” justifying a statute would be an invasion of Congress’ domain. This Marshall felt that the Supreme Court should strike down a law as being beyond the powers of Congress only where it was quite clear that no constitutionally-specified object was being pursued; in any closer case, the final decision should be left to Congress, not the courts.
E. Holding of McCulloch: Recall that McCulloch held that the Bank of the United States was immune from a Maryland tax against it. This conclusion was essentially the result of the following syllogism.
a. The power to tax is the power to destroy;
b. If state taxation were permitted to destroy or harm the Bank, the federal government’s exercise of its powers under the constitution (“especially the “Necessary and Proper” and Spending Clauses) would be thwarted; and
c. The federal Constitution must be preserved against such state interference.
F. Conclusion: Marshall thus concluded that the act chartering the national bank was valid, because it bore reasonable relationship to various constitutionally-enumerated powers of the government (e.g., the power to collect taxes, to borrow money, to regulate commerce, etc.)
a. Maryland Tax invalid: Marshall then went on to find the Maryland tax invalid, because it interfered with the exercise of a valid federal activity.
Chapter 3 – The Commerce Power
