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Constitutional Law I
SUNY Buffalo Law School
Kannar, George

Judicial Review and Supreme Court Procedures

1) Marbury v. Madison – 1803
a) Construction Canon
b) Political Question Doctrine
c) Original Jurisdiction
d) Establishes Judicial Review
e) Struck down Judiciary Act of 1789
2) Cooper v. Aaron – 1958
a) Reemphasizes Brown v. Board, but especially Marbury
3) Martin v. Hunter’s Lessee – 1816
a) All judges signed unanimous decision.
b) Supreme Court can review state court decisions
c) Central body to decide national issues
4) Cohen v. Virginia – 1821
a) Lottery case
b) Extension of Martin Supreme Court can review state criminal court decisions.
5) Felker v. Turpin – 1996
a) Can file a petition for habeus corpus with Supreme Court

Necessary and Proper Clause

1) McCulloch v. Maryland – 1819
a) Nature of Constitution as an outline.
b) Argument about states calling constitutional convention.
c) Government has the power to determine the means to the enumerated ends.
d) Distinction between “necessary” (necessary and proper clause) and “absolutely necessary” (Art. of Conf.).
i) N&P clause means “one thing is convenient, or useful, or essential to another.”
e) Intent of Framers argument
i) Problem with this argument is that he struck down Judiciary Act, which was passed by the framers.
f) Court can look at law and effects of law to determine constitutionality. (eg. newspaper/timber)
g) Fed. is supreme. The taxing of the whole people by a few people in one state is unconstitutional.

Power of Congress to Regulate Interstate Commerce

1) U.S. Term Limits v. Thornton – 1995
a) Justice Story in 1858;“No state can say, that it has reserved, what it never possessed.”
i) This is the same reasoning Marshall used in McCulloch v. Maryland when he said that the right to tax federal entities “never existed, and the question whether it has been surrendered, cannot arise.”
b) Intent of Framers argument
i) S. Court believes that the Framers intended that the Constitution would be the only source of qualifications for membership to Congress. To change the qualifications, the Constitution would have to be amended.
c) Dissent – Says where Constitution does not give powers to the federal gov. they are reserved to the states. (This is completely opposite of majority).
d) Who has the best reading of McCulloch?
i) Kannar says majority??????? Yes. Because McCulloch says that necessary & proper clause gives federal more rights than are specifically enumerated.
2) Gibbons v. Ogden – 1824
a) Congress’s power to regulate commerce is plenary where it does not violate another part of the Constitution. This power is limited only by the electoral process and the restraint and wisdom of Congress. When there is no conflict with the federal regulations then states can regulate commerce as long as it is intrastate….shows MARSHALL’S NATIONALISTIC AND PRAGMATIC VIEW OF THE CONSTITUTION.
b) **Commerce Power and Necessary/Proper Clause holds Congress’s power to regulate commerce virtually unreviewable and allows enormous discretion to choose their means.
c) Defined “commerce among the states”
3) U.S. v. E.C. Knight – 1895
a) Sugar Refinery
b) Distinction between mfg. and commerce. They are indirectly related.

c) Relationship to commerce is too remote. Indirect
2) Schechter Poultry v. U.S. – 1935
a) Commerce power case and separation of powers case.
b) Wages and hours of his employees would only indirectly affect the price structure.
c) Not in “stream of commerce” because he only sold chicken locally. (end of stream????)
d) NIRA gave legislative power to the executive branch.
e) Cardozo concurring – must look at activities to see if they will affect commerce. Does not believe in direct/indirect theory. In this case a local chicken butcher will not affect interstate commerce. Question of degree.
f) Also could be struck down on due process grounds because act gave legislative power to a private person – 5th amendment.
3) Carter v. Carter Coal Co. – 1936
a) Also could be struck down on due process grounds because act gave legislative power to a private person – 5th amendment.
b) Direct/Indirect Theory – law is struck down because it is indirect. Last time this theory is used.
c) Cardozo dissent – same thoughts as in Schechter, but in this case he thinks the law should stand because there is an effect. Coal industry as opposed to a local chicken butcher.
4) After this case Frankfurter and Black were appointed by FDR to the court. Both much more favorable to the New Deal.