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Constitutional Law I
University of California, Hastings School of Law
Faigman, David L.

A.   The Power of Judicial Review
1.    Historical Background
i.              Two driving principles:
a.    Federalism – the basic division between the national government vs. the state. U.S. is a gov’t of shared power: states are sovereign entities as well as the whole
b.    Separation of Powers –nat’l gov’t is separated into legislative (Congress), executive (President) and judiciary
ii.            Why have states?
a.    Before, states were created so that the people were “closer” to their government and each locale would be well-represented, which is directly opposite from a monarchy (ex.: England)
b.    There is a real battle between state power and federal power because there is an overlap
1)    Example: should CA be able to create its own clean-air standard? If they conflict with the federal standard, then which standard should car companies follow?
2)    If such a federal standard exists, then it preempts state authority in many cases
iii.           Development of the Constitution
a.    1787: delegates met to discuss concerns created by the Articles (except RI)
b.    Madison believed that the subjective intentions of the drafters were not relevant to interpreting the Constitution
c.    Scalia: original intent then should be looked at as the intent of the ratifiers (public intent rather than private intent), not the drafters
d.    Constitution was sent to each state and each state created a Ratifying Convention, where representatives were sent to view and approve/ratify the document.
e.    But even w/ these representatives, did they truly represent the public? Or the representatives’ viewpoints only?
iv.           Anti-Federalists v. Federalists
a.    Anti-Federalists were against the Constitution b/c it concentrated too much power in a remote central authority – echoes now in the thinking of Gingrich, Paul
1)    Wanted a Bill of Rights
2)    They wanted the states to be primarily sovereign
3)    The problem is not the people, but the gov’t. If people were left to their own devices, they will do good.
4)    Fundamental view of human nature: benevolent and good
b.    Federalists were in favor of a strong national gov’t that had the power to tax, raise armies and funding, regulate trade, etc.
1)    Leaving people to their own devices is not nec. a good thing. They are not going to act benevolently to society as a whole; they are more likely to try to get everyone else to conform to their views and self-interests  (need some overarching control)
2)    People will naturally divide into factions, and the larger the republic, the more likely the factions will cancel each other out
3)    A large heterogeneous society is the best protector of liberty
4)    Fundamental view of human nature: more self-interested and needed to be more controlled
5)    Federalists’ response to Anti-Federalists’ insistence on Bill of Rights: national gov’t was one of enumerated power so no Bill of Rights was needed. To pass a Bill of Rights would actually be dangerous b/c it would show that the gov’t DID have the power to infringe on rights
6)    Bill of Rights was still ratified in 1791 despite reservations
c.    Premise: “The Constitution was a contract, a covenant among the states.” But is this true?
1)    Articles of Confederation was a contract, a covenant, between the states.
2)    The Constitution is a covenant between the people. Thus the people of Alaska didn’t ratify the Constitution as Alaskans, but as Americans.
3)    Thus the states could not break it b/c it was not a contract made by them. Thus, if Alaska wants to secede, then all other people in the United States get to vote on whether Alaska gets to secede, not just Alaskans
2.    Marbury v. Madison, p. 2
i.              Facts: Adams, the exiting president, made a series of “midnight appointments” prior to his departure. One of these appointments included Marbury, who was appointed as Justice of the Peace. However, his commission was not delivered on time. Once Jefferson entered office, he decided to ignore these appointments. Marbury sought a writ of mandamus directly from SCOTUS to enforce his commission as valid.
Issue: (1) whether Marbury had right to the commission,
(2) whether Marbury had a remedy, and
(3) whether the Judiciary Act of 1789 can confer jurisdiction of this dispute constitutionally and, if not, does the Court have the power to review the constitutionality of the law?
Analysis: (1) Marshall said that Marbury had the right to the commission as soon as it was signed, not nec. delivered. Marshall could have ended the case here.
(2)  This question is w/in the realm of executive decision-making (Political Question Doctrine); Court should not meddle here. However, if President does not carry out his constitutional duty, then it is the Court’s responsibility to ensure that he does so. Thus, Marshall gives w/ one hand (says some things are left to the discretion of other branches) and takes away w/ the other (Court can decide what constitutes a “political question”).
(3) First, Marbury finds that Article III § 2 of the Const. does not permit extension of the Court’s original jurisdiction to cover the power to issue a writ of mandamus (which he reads the Judiciary Act  to do). But can the Act be fairly interpreted to extend original jurisdiction in this matter?
Lastly, Marshall decided that the Court does have the power to review actions of the coordinate branches of gov’t. He bases this conclusion on several premises:
·         We have a written Constitution. It is up to the Court to interpret it. (Faigman: this might support the opposite result – if there’s a written Constit., there is less need to have a definitive interpretation, the way it might be w/ an oral tradition).
·         It is the ordinary role of courts to interpret the law. (“It is emphatically the province and duty of the jud. dept. to say what the law is.”) Persuasive, but perhaps not enough to invalidate acts of the other branches. This intrusive nature of judicial review is separate from its traditional role of interpreter of the law ­– p. 4: “The province of the court, is solely, to decide on the rights of individuals, not to enquire how the executive, or executive officers, perform duties in which they have a discretion.”
·         Supremacy Clause of Art. VI § 2: Constitution is supreme law of the land. However, this does not fully explain why the judicial branch is the best one to uphold/maintain the Constit. To supplement this argument, Marshall points to Art. III § 2, which provides that the jud. power shall extend to all cases… arising under the Constit. But this clause does not tell us exactly what the jud. power is.
·         Marshall says that all judges take an oath to uphold the Constit., but so do all federal (and most state) EEs.
·         Lastly, you cannot trust legislatures to be bound by the Constitution itself. If the legislature could violate the Constitution by a simple majoritarian act, then the Constitution would lose all meaning. Judges are more to be trusted b/c they are the least dangerous branch and they are not legislators (nothing to gain from violating the Constitution).
Holding: Marshall established judicial review while declaring unconstitutional a statute that he reads as expanding the Court’s powers. He did not offer a single argument that convincingly demonstrated that judicial review is constitutionally mandated, but his arguments were consistent w/ constitutional structure and the overall scheme of American gov’t.
3.    The Background and Meaning of Marbury v. Madison
i.              Arguably, the question of judicial review was avoidable in this case. Marshall could have obviated from making his influential decision through several alternative avenues (recusal, political question, diff. constitutional interpretation that would not have rendered the Act invalid; Art. III § 2 could have been interpreted as illustrative, not exhaustive.)
ii.            Marshall perhaps knew that an absolute ruling in Marbury’s favor would be futile b/c the Jefferson administration would ignore it. His denial of mandamus shrewdly avoided an immediate confrontation w/ the executive while providing a shield against Congress and creating power of jud. review. He basically preserved, if not strengthened, the legitimacy of the Supreme Court and nat’l power.
4.    Judicial Restraint
i.              Where does the court's legitimacy come from?
a.    Could argue that the court is the least democratic branch
b.    Should we be comfortable being governed by nine, unelected, very old people who don't understand our current culture?
ii.            Why the structure exists (arguments):
a.    Ambition must check ambition, the last word has to rest somewhere – executive checks both judiciary and legislature, so legislature and judiciary must do the same thing 
b.    Our form of gov't, as outlined in the Constitution, is a mix of many forms of gov't – the judiciary as platonic guardians/ruler kings, the senate as an elite group, the house as the rabble below, and the executive as the ruling monarchy
c.    Prevention of majority/minority tyranny (Madison): the reason why we invest in a unelected branch of gov't is to define the boundary between gov't power and individual freedom. We can't trust the majority to define its own power and we can't trust the minority to define its own power (tyranny of majority/minority)
iii.           Madisonian dilemma: the court cannot be too restrained in either direction. The court's responsibility is to define the boundary between gov't power and individual freedom.
iv.           But then the question is: how does the court do that? How does it determine the meaning of the Constitution? 
a.    Text (analysis always begins w/ this). Example: is dancing considered “speech” under the First Amendment?
1)    Inherently vague and ambiguous
2)    Original intent: to determine what the ratifiers were thinking at the time they ratified the Constitution. Is it original intent as to the original verbiage or the original intent as to the principles encapsulated by the words? Example: does the word “equality” today what it meant in 1868 or does the word “equality” apply in a contemporary way? – court applied in the latter form.
3)     Constitutional structure 
4)    Institutional competency
5)    Relationship between the branches of gov't 
6)    Precedent: SCOTUS does not put as much weight on this as lower courts: you should not be bound by precedent (creates detrimental reliance) – society has come to overly-depend on former decisions.  If they (SCOTUS) got it wrong in 1937, then we would we perpetuate that error today? Examples: Plessy v. Ferguson was overturned; Dred Scott case
7)    Con

al provisions of the Constitution essentially give you a pleading requirement for justiciability.
Analysis: States tried to argue this was a “political question” and thus not within the authority of the Court to decide.
However, the Court said that the political question doctrine concerned relations between the judiciary and the other fed. depts. (executive and legislative), NOT relations between the judiciary and the states.
Court contrasted this case w/ Luther v. Borden, where the Guaranty Clause was at issue and thus w/in Congress’s purview and not the Court’s. There was no judicially cognizable standards under the Guaranty Clause but there was such standards under the Equal Protection Clause, thus rendering the present case justiciable.
How to recognize justiciability (to see if one provision is precluded by another):
1)    Textual commitment to another branch of gov't in Constitution, OR
2)    Lack of judicially discoverable standards (non-cognizable standards); OR
3)    Initial policy determination (if one of the coordinate branches of gov't has already made a decision regarding it); OR
4)    Would show a lack of due respect to something another branch has already done; OR
5)    Political decision already made; OR
6)    Potential for embarrassment
Holding: The matter here was justiciable and not a political question b/c political questions fall only w/in the relations between the judiciary and other branches of gov’t, not the judiciary and the states.
***All you need to do is find the right constitutional provision and you’re done.
***It is an affirmative commitment that precluded another other provision. Dissent: this kind of political decision is not the type of issue that the courts should be deciding; courts are not institutionally competent. It makes more sense that this would be committed to Congress and the Equal Protection Clause does not change that.
iii.           Nixon v. United States, p. 56:
Facts: President Nixon was asked to comply w/ a subpoena to produce tapes of presidential conversations that were needed as evidence in a criminal trial.
Issue: whether an affirmative commitment in one part of the Constitution to another branch of the fed. gov’t should make the matter non-justiciable, despite the presence of another constitutional provision that might permit justiciability. This would have been raised in this case had Nixon raised a 14th Amendment violation. Is it judiciary (Marbury v. Madison)? Executive? Or Congress? Why would the Constitution commit it to the Senate instead of the judiciary?
– Don’t want second-guessing, want finality, the Constitution seems to say it.
Could argue that the textual commitment to try impeachments in Art. I is stronger than that in the Guaranty Clause. Baker suggests that Nixon would have had a justiciable claim under the 14th Amendment. According to this view, if any clause or amendment of the Constitution would provide a cause of action, then it is justiciable. However, this is an untenable view.
Holding: courts may not review the impeachment and trial of a federal officer b/c the Constitution reserves that function to a coordinate political branch (Senate).
Better understanding of Baker: created a methodology in which a textual commitment in one part of the Constitution will be compared to/evaluated against the other 5 factors of the test. This would be considered a “balancing test” or “totality of the circumstances” test.
*** The non-justiciability issue is NOT Constitution provision-specific. It’s transaction-specific, the Court was simply not going to find impeachment a judiciable controversy for judicial review. On exam, have to decide whether Baker v. Carr or Nixon v. United States fits your side better. If Nixon fits better, you must mention, notwithstanding Baker’s own analysis, that when looking at those 6 factors, they’re actually very transactionally-based (whatever the action is that causes you to file a complaint). The transaction here was the delegation to the committee.
5.    Distinguishing Legal from Political Questions
i.              “Functionalist view” of the doctrine: the Court should consider such factors as the difficulties in gaining jud. access to relevant info., the need for uniformity of decision, and the wider responsibilities of the other branches of gov’t.