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Constitutional Law II
UMKC School of Law
Kobach, Kris W.

Kobach- Fall Semester 2005

I. Introduction (Some History)
a. What purposes does Constitution serve-
i. Define government institutions (what the branches are, who makes decisions, how choose)
ii. Define powers of those institutions; include how they’re selected
iii. Define rights and place limitations on government power
1. Positive Rights- right to demand something from the government
a. Federal gov’t doesn’t have positive rights; some state gov’t do
2. Negative Rights- right to stop the government from doing something to you (like shield from government’s power)
iv. Hamilton said didn’t need to create rights, just define constitution w/ certain limits.
v. But, people wanted rights, so BILL OF RIGHTS
b. Constitution created “for the people”, but not ratified by the states. It was actually created by the convention.
c. Articles of Confederation- were really just a very loose arrangement where sovereignty was with the states. Now powers with Congress; like a treaty between 13 separate entities.
d. Constitutional Convention in Philly only supposed to propose changes to Articles; but, they ran away, and decided only 9 states needed to ratify.
e. Doctorate of Enumerate Powers:
i. Government of US is a government of enumerated powers; may ONLY exercise those powers specifically mentioned in the Constitution and no others.
ii. Federal gov’t’s powers are limited in Constitution:
1. Rights given
2. Limitation on Congress’ power in Art I sect 9
a. Framers were worried about Congress overreaching powers
3. BUT- there is no express limitation on powers of executive/judiciary branch
f. Residual/Inherent/Reserved Powers:
i. Primary sovereigns who hold power and have delegated certain powers to federal government. (STATES have broad police powers; FEDERAL gov only has limited, enumerated powers)
ii. Everything states don’t give to federal government, they retain.
iii. Some state constitutions do limit the state government to enumerated powers, but most do NOT. Most states have broad residual powers- “police powers”.
1. Police powers- powers to protect ppl’s health/safety/welfare/morality; which is essentially everything.
g. Ways to enforce a constitution:
i. Judges enforce it to strike down laws that exceed constitution
1. Enforce the boundaries- that’s what we see a lot today
ii. Jefferson thought each branch should patrol its own boundaries of power. Co-equal branches have co-equal authority
iii. Legislative branch could enforce constitution
iv. Executive branch “”
v. Each one could enforce other one. (Inverse of what Jefferson said)
vi. Have states decide if federal government was w/in its bounds
h. Federalist Paper 78-
i. Hamilton said that the courts were designed to be an intermediate body between people and other bodies. If courts interprete meaning of laws, why not have the courts interpret meaning of Constitution? Hamilton thought judiciary was least threatening branch b/c they don’t exercise will, only exercise judgment.
i. Marbury v. Madison- Established JUDICIAL REVIEW
i. Facts: Marbury was appointed justice of the peace for DC by President Adams and confirmed by the Senate on Adam’s last day in office. The formal commission was signed by NOT delivered. Madison, sec of state, was directed by the new prez (Jefferson) to withhold Marbury’s commission. Marbury brought a writ of mandamus directly to SC under Judiciary Act of 1789
1. Note- Marshall interpreted the Judiciary Act of 1789 very broadly to do more than it actually does; He interpreted jurisdictions narrowly to create a conflict…This case could have been decided on statute grounds w/out even considering a constitutional issue.
ii. Issue: Is the SC empowered to review acts of Congress (federal statutes) and void those it finds violate the constitution?
iii. Arguments Marshall makes:
1. Nature of the judiciary- courts are a law defining body; it has to say what the law is.
2. Maybe this is a check of one branch on another (but all other checks/balances are in the constitution)
3. Court has to adjudicate it otherwise it blinds itself
4. Oath of office clause of Art 6 that says judges must act under authority of Constitution
5. Textual arguments-
a. Art III, section 2- (best textual argument for judicial review) extended to cases arising out of constitution. Marshall said it would be absurd if court is given the power to resolve those cases if it can’t enquire into the meaning of the Constitution.
i. Counter-argument- it doesn’t say that court can decide constitutional conflicts exclusively. And its indirect- why didn’t they just give SC final authority?
6. (Jackson’s view: didn’t agree w/ Marshall, he thought all branches should have a say. He thought court can try to persuade about what’s constitutional, but each branch has their own view. Jefferson agrees w/ him).
iv. Holding: Yes. “It is emphatically the province and duty of the judicial department to say what the law is.”
v. Rule: Judges are final arbiters of constitutional disputes/constitutional meaning.
1. Problem with judicial review is that the constitutional no where explicitly states the judicial branch will make these decisions.
2. Judge Jackson/ Learned Hand later said there was no authority in Constitution that gave court this power in Marbury.
vi. Supreme Court’s power of judicial review is NOT fully established following Marbury until Cooper v. Aaron in 1958.
j. Football Game Analogy:
i. Constitution defines the rules of the game; the game is politics, making decision for this country.
ii. The players are the factions in Congress who are trying to advance the ball to their opposite goals
iii. The REFEREES are the COURT, trying to enforce the rules that existed before the teams ever got onto the field.
1. This is fine as long as referees don’t pick a favorite or change the rules of the game after the game has started.
II. Congressional definition of federal judicial power
a. Supreme Court was notoriously weak initially
b. CHECKS on the court:
i. Constitutional Amendment (27 Amendments)
ii. Impeach Justices
iii. Limit the court’s jurisdiction (jurisdiction limiting)
iv. Senate can consent to appointments- appointments process
v. Set the size of the court-
1. Art III sect 1. FDR used this to his advantage with the court packing plan.

aty or federal statute.
1. MODERN Statute: 28 USC 1257- Current US SC jurisdiction over state supreme court; SC can review any decision that involves federal law or the US Constitution or interpretation of US treaty.
iv. Issue: Whether Va high court is correct saying that Sect 25 of Judiciary Act is unconstitutional. Did SC have authority to overturn decision of Va SC?
v. State of Virginia’s argument:
1. Framers put in the constitution expressly the areas where Supreme Court would have appellate jurisdiction and this case is not one of them.
2. The case could have been removed to federal court or originally brought in federal court, but instead it came in state court. Va felt state courts are general jurisdiction and US SC is for federal questions only; there is TWO TRACK court system and they shouldn’t over lap.
3. (At this time, people considered themselves more citizens of STATES, not federal government.)
vi. Holding: the decision stands; section 25 of Judiciary Act is constitutional. Reasoning:
1. Harmonious interpretation of constitution: you can have a two track system, but there must always be US SC consideration to ensure harmony of constitution. Must have US SC authority.
a. Arguments (see below, these are just basic arguments that can be made)-
i. Direct Constitutional Test
ii. Indirect Constitutional Test
iii. Constitutional Structure
iv. Original Intent- framers of that amendment when they wrote it;evidence of what they thought they were doing.
v. Constitutional Policy- makes sense for constitution to be construed this way to function well.
vi. Public Policy- this result is good policy for the country.
2. ARTICLE III: Conveys jurisdiction by type of CASE- defines if US SC gets jurisdiction, not the court that is arises from. Art III doesn’t say anything about where the cases come from.
3. The Constitution by its nature and in other places reduces state sovereignty, so fact this entrenches on state’s rights is not good argument.
4. Original intent argument- if there’s not uniformity of interpretation it would be bad.
5. Constitutional policy argument- the constitution is not a negotiated agreement between state government, it comes from “we the people” so it CAN trump state sovereignty.
6. Framers intent argument- some members of Constitutional Convention didn’t want there to be any lower federal courts at all; framers left open possibility there would be no lower courts “CONGRESS SHALL CREATE” so Congress has authority to create jurisdiction. Supports idea that SC can decide state court issues.