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Constitutional Law I
SUNY Buffalo Law School
Kannar, George

Professor Kannar, 2014 Fall, Constitutional Law

Chapter 1: The Supreme Court’s Authority and Role

Review of Acts of Congress

Marbury v. Madison àThe Court defines what the law is when § conflicts w/ Const.

Marbury was appointed to be a federal judge under the Judiciary Act (JA) by President Adams at the end of his term. Jefferson came into office and told Madison (his Secretary of State) not to deliver the appointment. Marbury sued in the Supreme Court to make Madison deliver the appointment by issuing a writ of mandamus.

Justice Marshall asks 3 questions:

· Does Marbury have a right to the appointment? Yes – under the JA

· Does the law afford a remedy? Yes – Civil Liberty (The right for appointment was required by law and must provide a remedy)

o If they do afford him a remedy, could the Supreme Court grant this remedy? à NO

Although the Judiciary Act empowers the Supreme Court to issue this writ, the SC can’t hear the case as a matter of 1st impression.

The Judiciary Act was at odds with the Constitution. The Supreme Court only has original jurisdiction on (1) Appeals from Court of Appeal or State Supreme Court or (2) granting a Writ for Certiorari.

Supremacy of Constitution

Holding à If there is a conflict between the Constitution and a Congressional provision, the Court has the authority (and duty) to declare the statute unconstitutional and refuse to enforce it.

Constitution is paramount

The Court, not the legislature, says what the law is. To deny the Court judicial review is unconstitutional.

Criticism of Marbury

No where in the Constitution is it stated that the Courts, and not Congress, decide whether a statute conflicts with the Constitution.

Congress could decide – Why shouldn’t Congress decide the law in a conflict?

Assumption by Judicial – Marshall assumes this power of the Courts. Who is to say what branch has the final word because the constitution is silent to this power.

Judicial Independence favors Judges– Judges are appointed; Congress is elected (majority); The Constitution largely protects the rights of minorities; Therefore, judges will interpret the Constitution in a way more sensitive to protecting minorities’ rights.

Review of State Court Decisions

Art III, § 2 provides Supreme Court’s appellate jurisdiction may be regulated by Congress who limits it to “federal questions decided by state courts”

Holding: Yes the Supreme Court has the power, implied from Article VI §2 of the Constitution to review acts of Congress and can declare them unconstitutionally void. Marbury has the right to the commission; a Madison refusal to deliver it violated his right.

Marshall developed a five part test:

Does Marbury have a right to the commission?

Yes, the President cannot revoke a commission that became effective once it was signed and sealed

Does Marbury have a remedy?

Yes, if there is a vested legal right then the courts have the power to issue a remedy

Is the Writ of Mandamus the correct remedy?

An order by the court to an official for a specific purpose

Is the mandamus proper?

Can the Supreme Court apply the Mandamus?

No, to issue a writ of mandamus ordering an executive officer to deliver a paper is to create the original action for that paper and that is an unconstitutional exercise of original jurisdiction beyond the Court’s power.

Mandamus is an appellate provision and because the Judiciary Act conflicts with the Constitution, it must be declared void. Mandamus is denied because it is not the proper remedy. The textual argument is that if the Constitution were to grant that exclusive original jurisdiction it would say so.

The Judicial department’s duty to interpret the constitution and law, and “all cases arising under the constitution”. 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.

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.

Established judicial supremacy and judicial review.

Modes of adjudication: How the Ct figures out the meaning of the text

Plain Meaning: stick to the text

Original Intent: what did the drafters meant?

Value Placement: SC enacts its own values into decisions

I. Judicial Review and Supreme Court Procedure

How the Supreme Court works

*Has complete control over its docket (makes it different than state courts)

Petition for writ of certiorari; tells court why they should hear the case

Rule of 4; four votes of justices are needed to grant certiorari arguments (Monday through Wednesday)

Friday after seeing the cases, court takes secret prelim vote (starting with youngest member)

Decision; most senior justice on winning side assigns who write the opinion; keep secret

Martin v. Hunter’s Lessee (1816)***p 16

Set up judicial review of the states, the court can review and revise the constitutional interpretations of the state.

Facts: Martin wants to recover land in Virginia that he had inherited from Lord Fairfax and was denied by the Court of Appeals because Fairfax’s land was legally confiscated during Revolutionary Law. Virginia claimed title to the estates in 1977 through State legislation confiscating the property of British Loyalists.

VA argued that Section 25 of the Judiciary Act, giving power to the SC over the states, was unconstitutional.

Issue: Does the Supreme Court Have appellate jurisdiction over the highest state courts on issues involving the Federal Constitution, laws and treaties?


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 Federal Government, rather than the state.

Constitution is the supreme law of the land

2. *Martin v. Hunter’s Lessee (1816)

-VA claimed property from British loyalists during Revolution and gave to it’s citizens- Hunter, Martin claims the land under title

-S.Ct. rules that Martin owns the land as the title holder and VA must return it to him, but they refuse to comply

-VA argues that b/c the fed. Q? arose in state courts, the state courts should provide the final judgment- NO

-Does the S.Ct. have the power to review state court decisions? YES

-States have prejudices towards their own citizens and interests that will affect the regular administration of justice

-Need uniformity in the rules of the country to administer justice

-C applies to all the states and they are all bound by it, and C is the supreme law of the land

-VA says S.Ct. will abuse power, S.Ct. says “better us than you!”

note: also later est. S.Ct. review of state criminal cases

*Ppl argue that JR is undemocratic b/c judicial branch is unelected and cannot be held accountable for their actions, but the non-election of justices is really a check on the justice’s objectivity, keeps the S.Ct. non-political

*Also, there are no other mechanisms to keep the gov’t in line w/ the C, JR is the only check

-Before the Civil War, S.Ct. only uses JR to strike down a federal law twice: Marbury and Dred Scott … JR can act as a deterrent to the legislature not to pass a law they know is un-C, or vice versa, they may pass knowing it will probably get struck down, but leave it up to the S.Ct. to decide


SC declares that VA is not independent to enact laws contrary to the Constitution and that the interpret

is does not inquire into what Congress’s motive is

2- If so, may the State of Maryland tax it? (no)

To allow Maryland to tax the Federal bank, they are taxing w/o representation (essentially taxing the other states without them having a say). Power to tax, Power to destroy, if all the states can tax the federal government, it will be destroyed.

Congress’s “Necessary & Proper” Clause still holds today

In the late 1800’s and early 1900’s, Congress was not given deference by the Supreme Court to exercise its “Necessary & Proper” Clause. The Supreme Court felt there were certain areas of the Constitution that should be left for the state regulation under the 10th Amendment. They felt Congress was overreaching and infringing the states rights be using any means “Necessary and Proper” to regulate interstate commerce. This changed in 1937 after the “New Deal”, Congress was able to exercise its powers that were “Necessary & Proper”.

What Have We Covered?

Judicial Review – Not deciding if good idea but if it is constitutional


Role of Supreme Court

Question of Constitution Law (Supreme Court) and Policy Choice (Legislature)

Necessary and Proper Clause

Powerful Federal Government that the States can’t interfere that operates nationally with without local variation (if legitimate and constitutional)

Holding: Marshall: Yes

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

He 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.

Even though the Constitution does not expressly grant the power to incorporate a bank, it is incorporated within its broad powers.

No, the Constitution and law made pursuant to it are supreme and control the Constitutions/Laws of the states. If the state could tax a federal institution, it would undermine its existence and infringe upon the rights of people in other states to a strong national bank. The pretext notion allows the Supreme Court to look at laws that are facially valid and inquire whether the motives were pure.

This law was struck down because the underlying motive was to burden the federal government and they can thus second guess the legislature in doing this.

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.