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Constitutional Law I
SUNY Buffalo Law School
Kannar, George

Professor George Kannar

I.) The Constitution: Nature & Sources of the Supreme Court’s Authority

A.) The Constitution
1. Prior to the Constitution: Articles of Confederation- Problems:
a. weak decentralized government
b. really only created to lead us through the Revolution
c. lacked the ability to tax or raise armies [no police power] d. people were considered members of states, not of U.S.
2. Constitution as a Revolutionary Document:
a. everyone else had a monarchy and no popular election
b. U.S. creates a republic
c. It involved no redistribution of wealth
d. There was no mandatory religion requirement
e. It contains a process for amendment
f. People sacrifice personal rights to create the state (create social order)
g. Notion of “popular sovereignty” -people have the ultimate authority
h. Separation of powers through branches and checks & balances
3. Constitution as a Democratic Document
a. Electoral college – no direct election of President
b. State Legislatures choose Senators
c. Slaves were counted as 3/5 person for census
d. Only property owning white males could vote
4. Federal-State Controls
a. Supremacy Clause- Article VI
b. 10th Amendment reserved powers to states
c. Full faith and credit” – Article IV
d. States not allowed to enter into treaties/alliances, only federal gov’t.
e. Guaranteed republican form of government in every state
5. Constitution as a Reflective of Personal Experiences
a. No treason, No nobility
b. Oaths and Impeachment
c. Focus on Criminal Justice system (Amendments IV-VIII)
d. No quartering of soldiers (III Amendment)
e. Individual rights (Amendments XIII-XV)
f. Promotion of scientific progress

B.) Judicial Review and Marbury
1. Introduction
a. Tension btwn. a democratic society and oligarchic decisions of the SC
b. SC charged with the interpretation of the Constitution
c. “Counter-majoritarian” difficulty: how to balance SC decisions that run counter to the decisions of the majority
2. Judicial Review
a. Device by which society moves disputes from an arena of political tension to an arena of legal reasoning. “Takes dispute out of politics”
b. Judicial self restraint: degree of modesty or self restraint exercised by SC in relation to the elected branches
c. Judicial Activism: relationship between current SC and SC of the past; degree of aggression demonstrated towards precedent
d. Modes of Adjudication: how the Ct figures out the meaning of the text
(1) plain meaning: stick to the text
(2) original intent: what did the drafters mean?
(3) value placement: SC enacts its own values into decisions
3. Marbury v. Madison (1803) PG 48
Facts: Marbury was appointed justice of the peace by lame-duck President Adams and confirmed by Senate on Adam’s last day in office. His formal commission was signed but not delivered (by Marshall’s fault). Madison was directed by President Jefferson to withhold the commission. Marbury brought a writ of mandamus directly to SC under the Judiciary Act of 1789.
Issue#1: Has the applicant a right to the commission? YES, because the commission had been signed and sealed.
Issue#2: Do the laws of the country afford him a remedy? YES.
Importance: Court’s will review where the law assigns a duty and individual rights depend on that duty. Courts will not review political questions: where the Constitution grants a great deal of discretion to another branch.
Reasoning: Gov’t is one of laws, not of men. For every right created by law there is a remedy. Const defines the power of the branches and assigns positions.
Issue#3: Is Marbury entitled the remedy of writ of mandamus? NO!!
Importance: The Supreme Court is empowered to review acts of Congress & void those which it finds to be unconstitutional: repugnant to Document
Reasoning: Judiciary Act allowed for mandamus claims to be heard on original jurisdiction. Marshall looked to the “plain meaning” of Art III which confers original jurisdiction in a limited number of cases, not this one. Marshall determines that mandamus does not fall within the original jurisdiction provisions and therefore is appellate. Accordingly, the Judiciary Act conflicts with the Const, therefore the Act must be declared void.
àBig Marbury Issues:
· Const is a superior, paramount law of the land
· It is the province and duty of the SC to say what the law is
· A legislative act contrary to the Const is NOT law and will NOT be enforced.
II.) Judicial Review and Supreme Court Procedures

A. Cooper v. Aaron (1958) PG 25
Facts: AK officials claimed they were not bound by the Brown decision because they were not parties in the original suit
Importance: Sets general precedent law that the SC is the ultimate interpreter of the Const. This interpretation binds all parties, regardless of whether they are a party to the dispute.

B. Martin v. Hunter’s Lessee (1816) PG 60
Importance: The SC may review the decisions of the highest state court and that Ct is BOUND by their decision. MONUMENTAL CASE! Provides binding review of state court decisions.
Reasoning: Art III extends to the SC judicial power over all cases. The Const was designed to operate upon the states. The Const is full of limitations on the states (ex: Supremacy Clause, removal right). There is a need for a uniformity of decisions. This case ensures we have ONE union.
O. W. Holmes says that this is more important than Marbury, because had it gone the other way we would have lost the union. (But don’t get too scared, everything worked out just fine.)

C. How the SC works:
à Significantly different than most state courts, as the have COMPLETE CONTROL OVER THEIR DOCKET.
1.) Petition for writ of certiori: Obj.: tell court why they should hear case
2.) RULE of FOUR: 4 votes of Justices are needed to grant cert.
3.) Petitioner’s Brief, then Respondent’s Brief, then Oral Arguments
4.) Friday after seeing the cases, SC takes a secret prelim vote (goes around the table from the youngest to the most senior member.

· “pre-text” notion: The Court has the authority to review facially valid laws and inquire whether the motives were pure. This puts a restrain on the legislative branch.
· The SC will find an act unconstitutional where Congress under the pretext of its powers passes laws for the accomplishment of objects not entrusted to gov’t.
· In reviewing pretext cases, the Ct considers leg history, provisions of articles (plain meaning)
· Here, although the act was facially valid, the SC struck it down b/c its underlying motive was to burden the fed, gov’t.
· Problems with pre-text: difficult to determine actual motives b/c the record is not likely to be clear; Cts will be second-guessing elected reps, not in scope of judges’ power to question the will of a legislator

I. The Power of Congress to Regulate Interstate Commerce

A. Gibbons v. Ogden (1824) PG 159
Facts: Ogden acquired a monopoly of rights to operate boats b/w NY and NJ courtesy of a NY statute. Gibbons violates Ogden’s monopoly by grant of right under a fed statute. Ogden got an injunction from NY court.
Importance: “Congress shall have the power to regulate commerce with foreign nations and among the several states.”
· Commerce defined: Commerce is commercial intercourse b/w nations and parts of a nation. There was a common understanding that navigation falls under commerce. It was the original intent of the framers to have Congress regulate commerce and to reach situations such as this.
· What commerce this extends to “Among the several states” means all external concerns and any commercial activity w/in a state that would affect the states generally. It is not a geographical concept.
· What this power to regulate entails: The power to regulate, to prescribe a rule by which commerce is governed. This power to Congress is plenary (given to the greatest extent). Congress’ power is only limited by the Const or the electorate.
· States can regulate commerce when there’s no conflict with fed. Reg. And that commerce is intrastate (completely within the state)
Impact: The commerce power + necessary and proper clause means that Congress’ power to regulate commerce is virtually un-reviewable and there is enormous discretion as to the choice of means. After this case, states go wild with monopolies and the commerce clause becomes dormant.
This case represents Marshall’s nationalistic, pragmatic view of the constitution.