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Constitutional Law I
SUNY Buffalo Law School
Kannar, George

Constitutional Law. Prof. Kannar. Fall 2010
Judicial Review

***Marbury v. Madison (1803)
· Narrow reading- The case rests on Article VI or the supremacy clause and thus declares § 13 of the 1789 Judiciary Act unconstitutional b/c it conflicts w/ the constitution.
· Broad reading- Established judicial supremacy and judicial review.
o Judicial review ended normal politics on an issue, and established the need for a constitutional amendment or appointment of new judges after SC justices retire to change the law.
o The court says specifically, “it is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict w/ each other, the courts must decide on the operation of each.” Marshall uses this to establish the court’s right to declare statutes void if they do not agree w/ the Constitution.
o 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

Cooper v. Aaron (1958)
· The SC is the ultimate interpreter of the Constitution. Arkansas claimed they were not bound by the decision in Brown v. Board of Education b/c they were not a party to the case.
· All nine SC justices were in agreement asserting federal judicial supremacy.
· SC’s rulings are the Supreme Law of the Land. They are final and will be followed.
· When government officials take their oath, they are part of all federal cases.

***Martin v. Hunter’s Lessee (1816)
Set up judicial review of the states the court can review and revise the constitutional interpretations of the state.
– Land annexed by Virginia during the war-taken from a state law conflicting w/ a treaty (ending the American Revolution) gave the land taken from British landowners to people. VA argued that Section 25 of the Judiciary Act, giving power to the SC over the states, was unconstitutional.
· SC declares that VA is not independent to enact laws contrary to the Constitution and that the interpretation of the Const. must be uniform throughout the states. Therefore, the SC is the only interpreter of the constitution. Article III extends to the SC judicial power over all cases The Constitution cannot mean one thing in one state and another thing somewhere else. Uniformity in federal law is important. It is one union
· Court concedes the potential for abuse of power, but says that such potential will always exist and should belong to the Fed. Government, rather than the state.
· Constitution is the supreme law of the land

Cohens v. Virginia (1821)
· The major issue was jurisdictional
· Does the SC have the jurisdiction authority over the states? Yes.

National Powers: The Necessary and Proper Clause

***Ex Parte McCardle
· Does congress have the power to limit the SC’s appellate jurisdiction? Yes, Congress stripped the Supreme Court of appellate authority for such cases using a statute.
· As a result when this case came before the court the court declared that it could not hear the case.
· This was a check against judicial review; congress can take away Supreme Court powers but it cannot grant them
· The exceptions clause gave birth to McCardle and this case establishes what Congress can do under the clause.

Current Operation of the Supreme Court
Case can get their by:
1. Appeal from State Court
2. Appeal from Federal Court of Appeals
3. Original Jurisdiction (Very Rare today) such as state v. state cases. In these cases, b/c there was no fact finder before the case gets to the court a master is assigned who makes a recommendation to the court and the parties argue for or against the recommendation.
· Anyone requesting the SC to hear a case must file a writ of certiorari – they have complete discretion over what cases to hear. Usually there is an ambiguity in the law, a conflict in the circuits on how a legal issue should be resolved and conflicts between state supreme courts or a state supreme court and a state lower court. These legal issues must all be federal questions.

Judicial Activism v. Judicial Restraint
· The SC can either read substantive rights provisions actively or passively and decide not to expand them.
· Judicial activists revise precedent and decide that stare decisis is not a constraint, and that holdings are changeable.

Michigan v. Long
· The SC has jurisdiction over federal questions; it will not take cases where there are clear statements of independent and adequate state grounds. Traditionally, if the federal question was clear then the SC would hear the case and if it was ambiguous then it would not grant certiorari.
· This case changed the SC’s approach if the case is ambiguous the SV will assume that there was a federal ground unless the state supreme court states clearly that there is independent and adequate state grounds.
· Activist implications. It gives the SC more latitude for hearing cases.

****McCullough v. Maryland (1819)
· Maryland passed a law taxing all banks not chartered by the state of Maryland. Wanted to tax the United States Banks/ Federal Gov’t Trial court decided against McCullough (cashier of the Baltimore Branch of the Bank of US), and the Court of Appeals affirmed.
· SC reversed the decision and made this a matter of State’s rights v. Power of Congress.
· Does Congress have the right to incorporate a bank?
o Yes, b/c Congress has the right to control commerce and under the “necessary and proper clause,” Congress can establish the means that it needs to reach the ends or application of its powers. If the ends are legitimate and the means necessary then congress has the power to enact such legislation
· Marshall denies Maryland’s argument that the states are supreme and argued that the ratification process showed that this was a Gov’t whose powers came from the people not from a compact of states. The Constitution represents people as a whole.
· A bank is not expressively covered by the enumerated powers, but it is implied (collect taxes, borrow money, regulate commerce etc…)
· Marshall also sets up a power of the SC to set aside unconstitutional acts of Congress by examining if the intent of the law is legitimate or a pretext. To determine if a pretext exists the court will examine leg history, and the plain text of the statute (“Let the ends be legitimate, let it be w/in the scope of the Constitution, and all means not prohibited are Constitutional.”)
· A federal bank represents all of the people. A state, which only represents a fraction of the people, can’t tax that institution
· The federal government is supreme w/in its sphere of action, as defined by the Constitution. Gov’t ratified by the people and not amenable by ordinary means. Also, the SC can review Congressional intentions in regards to legislation.

***U.S. Term Limits v. Thornton
· The state of Arkansas wanted to set up term limits for their elected officials by not letting people over a prescribed age on the ballot
· They say that it is their right under the 10th amendment but the Court alleges that this was not an original right and that one cannot lose what one never had. The amendment only retained or reserved state powers it did not expand them, it is a fallacy to retain anything prior to the Constitution b/c the 10th amendment is a creature of the Constitution.
· Dissent: Justice Thomas advocates the use of a “default rule” – when the Constitution is ambiguous and clearly foes not deny the states a right then the states have that power b/c the states were here first. There are other qualifications to voting statutes that states enact so there is not basis to say no in this case.

The Power of Congress to Regulate Interstate Commerce (Article I)
There are some powers given to congress that lie dormant, when Congress finally passes a law that utilizes a power conferred by the Constitution if it conflicts w/ a state law that state law is displaced for example the dormant commerce clause. Or the federal government never legislates but a state does and something comes up

ke the law. There is a constitutional balance and there is a limit on how much power Congress can delegate it cannot delegate its law making power.
· Even if there is an emergency the constitution still stands even in an emergency and it is the job of the court to say when the court when the legislative branch over reaches and to declare such actions unconstitutional.
· Cardozo concurs but disagrees w/ majority’s direct/indirect analysis. Says just look to how much does something affect commerce. This is just a little chicken guy that is why he is voting that this law is unconstitutional.

Carter v. Carter Coal Co. (1936)
· This is an attempt to regulate wages and hours of the bituminous coal industry. If a company does not comply, there is a tax on the coal, which raises its prices.
· Production is a purely local activity-item is not yet in the stream of commerce.
· This is akin to the EC Knight case. There are no legitimate national commerce interests, this is production, and beyond what the constitution authorizes Congress to do. Any affect they may have on commerce is indirect and secondary. Just b/c there is some spill over that does not mean that the government can intervene. It is still intrastate commerce despite the importance we focus on the character of the activity not its scope.
· Cardozo’s dissent: If traditionally viewed as intrastate commerce if there are interstate commercial effects the federal government can intervene. Examines Shreveport and says, “Power is as broad as the need that evokes it.” Look at the facts and determine if it warrants the enforcement of federal law.
· After this decision, Roosevelt starts the court packing plan.

NLRB v. Jones & Laughlin Steel Corp. (1937)
· Overturns Schecter and Carter and creates the substantial effects test.
· This case affects the NLRB, the Wagner Act, and the National Relations Act.
· Hughes says that Congress has the right to regulate anything that substantially affects commerce. It is this effect not the injury that the court must consider. Here the court goes back to the Cardozo dissent in Carter and says that here it is one of degree and this situation obviously effects interstate commerce. Congress has to deal w/ this situation, and interstate, intrastate distinctions cannot weigh heavily here when compared w/ an organized national strike.
· Congress can regulate anything that can hurt commerce, to protect the national economy.

US v. Darby (1941)
Fair Labor Standards Act of 1938 in dispute
· Invocation of commerce clause to influence social policy has previously (Hammer) been looked at as pretext and a fraud. This court agrees w/ Holmes’ dissent in Hammerthat it is not the job of the courts to determine the underlying motivation of Congress. The courts job is only to determine the lawfulness of the acts while Congress has n the power to regulate.
· This case reverses Hammer. Congress has a right to ensure the fairness of trading w/in the United States this trumps state rights. Court says that the 10th Amendment is “but a truism,”cannot limit the fed gov’t right to regulate interstate commerce.
· Motive and purpose of Congress are up to congress and the court has no right or reason to examine. No pretext analysis, do not look at hidden meaning.