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Constitutional Law I
University of California, Hastings School of Law
Leshy, John D.

Constitutional Law


Spring 2012

¾ of the states and 2/3 of both houses of Congress are needed to amend the Constitution.

Constitution includes the first Ten Amendments (i.e. the Bill of Rights). Of all 27 Amendments (this includes the Bill of Rights), 6 were adopted to overturn Court decisions:

· 11th – state sovereignty

· 13th – outlawing slavery, overturned Dred Scott

· 14th – due process, equal protection (post bellum)

· 16th – income tax

· 24th – poll tax

· 26th – reduced voting age to 18

Horizontal Federalism – Interaction between Congressional (Article I), Executive (Article II), and Judicial (Article III) branches of government.

Vertical Federalism – Interaction between federal government and states.

National government’s power comes from the Constitution.

· States are independent. Their power doesn’t come from the Constitution.

Relationship between national government and the states will be the topic of the next few classes.

Not all Constitutional questions are addressed by the Supreme Court – Ex. Can the president send troops to war without Congresses endorsement?

The number of justices on the Supreme Court is congressionally decided under Article III.

The Supremacy Clause gives federal law the trump over state law – probably the MOST important provision in the Constitution according to Leshy.

(R) Constitutionality of Laws is Judicially Reviewable – Marbury v. Madison.

· Nothing in Article III indicates that the Court has the power to determine the Constitutionality of the acts of the other branches.

· Marbury v. Madison – C – Court denies Marbury relief on the grounds that Congress violated the Constitution via §13 of the Judiciary Act of 1789 by giving the Court Original Jurisdiction on writs of mandamus. Since Article III does not express or imply original jurisdiction on mandamus, subsequent acts granting it are unconstitutional. A Congressional Act expanding the Courts power beyond that contemplated by Article III is unconstitutional.

o H – The Supreme Court has the power, under the Supremacy Clause (art. VI, § 2) of the Constitution to review acts of Congress and find them unconstitutional (i.e. the Supreme Court is the authority on what the constitutions says).

o Writ of Mandamus – a court order commanding a public official to perform obligatory (non-discretionary) duties.

o Court obtained original jurisdiction over Marbury case by interpreting §13 of the Judiciary Act to permit original jurisdiction even though a strict reading of §13 could mean the Court only has appellate jurisdiction.

§ Thus, Marshal construed the Judiciary Act in such a way that would permit him to obtain the objective of granting the Court the power to determine the Constitutionality of the acts of the other branches.

o Original jurisdiction exists when one can file with the Supreme Court of the U.S. initially, otherwise jurisdiction is appellate.

· The Court will typically only decide a Constitutional issue if there is no other way to decide a case. This policy is to protect the court. In this case, Marshal goes out of his way to answer the Constitutional question.

o Ways in which John Marshal (CJ) could have avoided addressing the Constitutional question (Avoidance Principle):

§ Hold that Marbury was not legally entitled to his judgeship due to Sec. of State’s failure to deliver it

§ Hold that writ of mandamus not appropriate since Sec. of State has discretion about whether or not to deliver judicial commissions

§ Hold that Supreme Court does not have original jurisdiction over the case

· (R) The Supremacy Clause (Art. VI, § 2) requires State courts to

o adjudicate federal legal questions, such as the constitutionality of a federal law and

o follow Supreme Court decisions.

· The Supremacy Clause (Article VI, cl. 2) and Article VI, cl. 3 both indicate the subordinate nature of states to federal laws

Under the Supremacy Clause, Congress’ (i.e. Federal) Laws preempt state laws. Crosby v. NFTC, U.S. 2000. Even absent an express Constitutional provision for preemption. Gibbons v. Ogden, U.S. 1824.

Judiciary Act of 1789 established the Supreme Court, not lower federal courts.

Martin v. Hunter’s Lessee, U.S. 1816 – When the Supreme Court reversed a Virginia State court of appeals ruling, the Virginia court refused to follow the Supreme Court on the grounds that the Federal Judiciary Act was unconstitutional insofar as it extended the Supreme Court’s appellate jurisdiction to state courts.

· (H) The appellate jurisdiction of the Supreme Court includes the decisions made by state courts so long as the decision is final (i.e. no other courts in the state can hear an appeal on the ruling).

· (R) Congress has the power to define the appellate jurisdiction of the Supreme Court – Art. III, § 2, cl. 2, “…the Supreme Court shall have appellate Jurisdiction…with such Exceptions, and under such Regulations as the Congress shall make.”

o Congress’ Judiciary Act, § 25, explicitly provides for Supreme Court review of state court decisions. This is codified in 28 U.S.C. § 1257

o Even if the Judiciary Act were repealed, the Supreme Court would have appellate review power of Martin. The Constitution explicitly states that the Supreme Court has appellate review power in cases where a state’s citizens are suing foreign subjects. Art. III, § 2, cl. 1.

Ex Parte McCardle, U.S. 1869 – Congress repealed an Act giving habeas jx. to the Supreme Court under certain circumstances following grant of cert. but prior to a ruling regarding an appellant who gained cert. under the act. Was the repeal of the Act constitutional?

· (H) Yes. The Act of 1868 does not except from jurisdiction any cases except appeals from Circuit Courts under the 1867 Act. It does not affect the jurisdiction which was previously exercised by this court.

o McCardle could still petition the Supreme Court for an original writ of habeas corpus.

§ (H) The Suspension Clause (Art. I, § 9, cl. 2) protects the writ of habeas corpus as it existed in 1789. INS v. ST. CYR, U.S. 2001.

o Ex Parte Yerger, U.S. 1869 – (The Interpretive Principle) Implied repeals of Supreme Court appellate jurisdiction won’t be acknowledged. If Congress wishes to repeal the Court’s appellate power it must explicitly so state.

o Felker v. Turpin, U.S. 1996 – (H) A statute withdrawing the court’s certiorari jurisdiction in certain habeas cases does not affect its authority to review the case before it upon a petition for an original writ of habeas corpus under 28 U.S.C. §§ 2241 & 2254.

· After McCardle, the thing that keeps Congress from limiting SCOTUS’ jx. by simply passing an act is that:

o In McCardle, Congress was simply repealing an Act that it passed, in a case over a Constitutional (rather than statutory) issue, the Court would not so willingly surrender its jx.

· (R – Exceptions clause, Art. III, § 2) The Supreme Court’s appellate jurisdiction is conferred by the Constitution, “with such exceptions and under such regulations as Congress shall make…” Under the McCardle ruling, Article III indicates that Congress has absolute power over the Court’s appellate jx.

· What in the Constitution requires states to conform to Supreme Court holdings? Supremacy Clause (Art. VI) “…judges in every state shall be bound thereby…” If Congress passed a law removing Supreme Court jurisdiction over abortion could it mandate that Roe v. Wade never be overturned?

o Would the Court follow McCardle today? The Court should not follow McCardle when to do so would take the Court out of its niche – to, ultimately, create and enforce a uniform vision of what the Constitution means.

· Ways that Congress can affect Supreme Court power:

o Change the size of the court (judges have tenure, but Congress can let the court shrink by attrition or add justices that are more friendly to Congress’ agenda)

o Article

of voting districts violate the Constitution.

Tenth Amendment distinguishes between the States and the people – this militates in favor of significance between equal protection (people) and guarantee (states) clause!

Powell v. McCormack, U.S. 1969 – When Art. 1, § 5, cl. 1 provided that “Each house shall be the judge of the Elections, Returns and Qualifications of its own Members,” SCOTUS held that a limit on that section was imposed by Art. 1, § 2, cl. 2 which specifies what the qualifications are. The claim by the House that its power to “be the Judge of the Elections, Returns and Qualifications of its own Members” was a textual commitment of unreviewable authority was defeated by the existence of this separate provision specifying the only qualifications which might be imposed for House membership.

Art. II, § 2, cl. 2 – The President can make treaties provided 2/3 of present senators concur. This article is silent on the abrogation of treaties.

· Goldwater v. Carter, U.S. 1979 – (H) Whether or not the president has the power to terminate a treaty with a foreign country is a nonjusticiable dispute.

Article V – ¾ of all states must ratify a Constitutional Amendment. Can a state withdraw its approval prior to the critical mass of ¾ of the states is reached? This is a political question:

· Colemen v. Miller, U.S. (plurality) – The period of time within which a state must ratify an Amendment is a nonjusticiable issue.

“Who is the President?” is not a political question (Bush v. Gore). Article II – gave Court an opportunity to declare this a political question.

§ 4 Discretionary Review

· To get review in the court, you need 4 justices to grant certiorari – this isn’t written down anywhere, it’s just customary.

· The court has reduced its case load from about 150/yr. in the 1970s to about 75/yr. nowadays. Court overlooks cases that need to be overturned sometimes – so a denial of Cert. doesn’t really mean anything.

McCulloch v. Maryland, U.S. 1819 – When a Maryland bank levies a tax against the Congressional, statutorily created, U.S. Bank, the Supreme Court holds:

· (H) The Necessary and Proper Clause (Art. I, § 8, cl. 18) gives Congress the power to do what is necessary (read “convenient”) to execute the powers vested by the Constitution.

o Having a federal bank facilitates the government’s Constitutional obligations, so it’s necessary and proper to have one.

· Marshal – The Tenth Am. doesn’t provide any sort of “express” protection to the states. Which powers belong to whom (state or feds) depends upon Constitutional interpretation.

· (Hypo) If Rick Santorum, interpreting McCardle (to give Congress the power to limit appellate jurisdiction of SCOTUS) and McCulloch (Necessary and Proper in an expansive way) decided to restrict SCOTUS appellate jurisdiction to hear school prayer cases and pass an Act mandating school prayer, what then.

o This differs from the situation in McCulloch b/c in McCulloch the issue was state v. fed power. In the Santorum situation, its fed (Cong) v. fed (SCOTUS) power. Using McCulloch to expand federal power over the other branches of the federal government would probably be difficult.