Constitutional Law I Outline – Prof. Jacob
1. Judicial Review and Constitutional Structure
a. The Origins and Theory of Judicial Review
a. The Establishment of Judicial Review
The Marbury principle: In that case it was established that the Supreme Court has the authority and duty to declare a congressional statute unconstitutional if the Court thinks it violates the Constitution.
Marbury v. Madison (1803)
CJ Marshall wrote the opinion that the Supreme Court lacked jurisdiction. Congress had attempted to confer original jurisdiction on the Supreme Court in violation of the Constitution. It does not allow Congress to expand the Court’s original jurisdiction. “It is emphatically the province and duty of the judicial department to say what the law is”. Marbury can be read as claiming simply the power to review statutes as they arise in cases before the Court, not as making the Court the exclusive or ultimate constitutional voice. The Marbury case also articulated the principle that the rule of law requires judicial remedies for violation of rights. Thus Congress should not strip federal courts of jurisdiction such that there are no judicial remedies to certain violations of rights.
The judicial branch of the federal government has the power to review adopted by the legislative branch and actions by the executive branch and determine that those statutes or actions are inconsistent with the constitution and therefore invalid. (unconstitutional)
a. The four textual arguments and one structural argument in support of Judicial Review:
a. Structural implications from a written constitution. A written constitution is meaningless if Congress can ignore it at its pleasure. If the Constitution binds the government, it must bind the Court just as much as Congress.
b. Article III’s grant of judicial power over cases arising under the Constitution.
c. Constitutional provisions specially directed to courts. Marbury: The matter at issue was whether Congress can alter the Court’s original jurisdiction, a matter addressed to the courts by Article III.
d. The supremacy clause: Marshall argues that since the Framers apparently expected state judges to decide if federal laws violated the Constitution they must also have expected the Supreme Court to exercise the same power in its appellate capacity.
e. Judge’s Oath: Judges would violate their oath if they upheld unconstitutional laws.
1. Other Arguments for Judicial Review
a. Precedent. Common Law judicial review of acts of parliament.
b. The Framers’ Intentions. Apparently they assumed it sufficiently obvious. Also reference in Federalist Papers.
2. Judicial Exclusivity in Constitutional Interpretation
Cooper v. Aaron , 358 U.S. 1 (1958)
A decision by the Supreme Court that interprets the Constitution or a federal statute or treaty is the law of the land, and it is binding, not only on the parties to the case, on the courts, the legislature and officials of the state where the case arose, but on every court, every public official, throughout the country. This case followed the Brown v. Board of Education case in 1954 which declared racial segregation in public schools unconstitutional. The Governor of Arkansas claimed he was not bound by this ruling since his state was not a party to the ruling.
b. The Power to Review State Court Judgments
Martin v. Hunter’s Lesee(1816)
The judicial power of the federal government extends to all the courts, state as well as federal, in the country. All courts, including state courts, must follow the federal constitution, treaties, and statutes, and if the United States Supreme Court has spoken on an issue of federal law, state courts are bound by that decision and must follow it. The reversal by the Supreme Court of the decision of the Virginia Supreme Court and order to enter judgment for Martin, was refused by the Virginia Supreme Court. That court argued both courts were supreme in their particular sovereignties and hence one not superior to the other. And thus the Virginia Supreme Court felt it was not bound by orders of the US Supreme Court.
Justice Story’s arguments:
i. Article III: Gives federal courts jurisdiction over all cases arising under federal law. Some of those cases will be tried in state courts.
ii. The Supremacy Clause: State judges are obligated to apply federal law as superior to state law. Hence they must be subject to correction of US Constitutional interpretations by the US Supreme Court.
iii. The need for uniformity: Story emphasized the importance, and even necessity of uniformity of decisions within the US in constitutional issues. If the US Supreme Court could not review decisions about federal law from state courts, the meaning of the Constitution would vary from state to state.
Section 25 of the 1789 Judiciary Act gave, enacted by the First Congress, gave the Supreme Court power to review the final decisions of the highest state courts on matters of federal law.
Cohens v. Virginia (1821),
The states are members of a nation with a government competent to attain all national objects, they are not independent sovereigns. The Supreme Court must have power to revise the decisions of local tribunals on national questions.
The Supreme Court’s appellate jurisdiction over state-court decisions is an essential function under the Constitution. The national supremacy the Constitution provides could not survive without enforcement by paramount judicial authority.
c. The Adequate and Independent State Grounds Doctrine
The Supreme Court will not review judgments of state courts that rest on adequate and independent state grounds. The only power over state judgments is to correct them to the extent that they incorrectly adjudge federal rights.
In theory, it is necessary first to decide whether the challenged law is valid under the state constitution. If it is not, and the state’s highest court plainly says so, that should be sufficient to decide the case without reaching the federal constitutional issue at all. The US Supreme Court would lack jurisdiction because it would be decided on adequate and independent state grounds. Challenges to the constitutional validity of state action should always be made first contending that the action violates the state constitution and, second, that the action (if valid under state law) violates federal law.
Michigan v. Long (1983)
State courts have the final say on issues of state law. The Florida Supreme Court, for exa
wn into two forms:
Originalism which itself takes two forms, 1) determining the original intent of the drafters, or 2) establishing the original meaning of the text.
The other form is to attempt to derive historical meaning from the “vectors” of history. Less static.
iii. Structural Arguments
Claims that a particular principle or practical result is implicit in the structures of government and the relationships that are created by the Constitution among citizens and governments.
iv. Doctrinal Arguments
Asserts principles derived from precedent. This is the common law doctrine of stare decisis.
v. Prudential Arguments
Advancing particular doctrines according to the practical wisdom of using the courts in a particular way.
vi. Cultural Arguments
To the extent a society has widely shared notions of justice, autonomy, and fairness, and those ideas are imperfectly reflected in more conventional constitutional arguments, cultural arguments fills in an important gap.
f. Tiered Review and the Unequal Status of Constitutional Claims
i. Minimal Scrutiny. The Constitutional “Default” Level of Review
1. Presumption that statutes and government actions are valid.
2. Challenger has the burden to show that law, regulation, or action has no legitimate government objective.
ii. Strict Scrutiny
1. Law or government action presumed invalid.
2. Defender of the government has the burden to show that the law or government action has a compelling government objective.
iii. Intermediate Scrutiny
When government action has some taint of presumptive invalidity but not quite enough to invoke strict scrutiny. The action or law is presumed to be invalid. The defender of the government has the burden to prove that the actual purpose is important and substantially related to the accomplishment of that purpose.
The Court generally applies minimal scrutiny to questions of whether Congress has exceeded its granted powers.
The Court also applies minimal scrutiny to issues of taking private property without just conpemsation.
The Court applies strict scrutiny to government actions that interfere with some liberties unmentioned in the Constitution.
2. Doctrines Limiting Scope of Judicial Review
i. Direct Political Controls
Amendments may be proposed either:
i. by a two-thirds vote of each house of congress
ii. or by a Constitutional convention called by Congress upon the application of two-thirds of the states.
Amendment must be ratified by three-fourths of the state legislatures or constitutional conventions.
