What is the Constitution
· An enumeration of powers that the federal gov’t has.
· How to analyze the constitution
o Look at the
ú Where does the particular text fit in the argument
ú Intent of the framers against the “dead hand”
§ Precedent/ Practice
· Constitution divides government into 3 branches with checks and balances to lessen the possibility of tyrannical rule
Types of interpretation of constitution by judiciary
o Meaning of constitution should be limited to text
o Desirable to constrain the power of unelected judges in a democratic society
§ Court is only justified to overturn gov’t decisions when it is following the values clearly stated in constitution
o Desirable to evolve constitution based on interpretation, not just amendment
o There is no clear framer intent because there is no collective intention.
o It is the approach intended by framers. They intended to make constitution flexible by being vague
Who should interpret constitution
· No authoritative interpreter
o No one branch should be authoritative in constitutional interpretation.
§ Any branch can disregard what another branch thinks is constitutional
o Each branch is Authoritative in certain areas
§ What we seem to have currently. Because court sometimes decides things are of political question
o Judiciary is the authoritative Interpreter
§ Court assigned role of umpire- resolves disputes and is final unless amendment is passed
2 Early Controversies
· Did federal gov’t have power to create Federal Bank?
· Anti-federalist argument
o Bank unconstitutional because of textual analysis. Not expressly enumerated
o Fed’l gov’t has limited power
· Federalist argument
o Hamilton favors flexibility in interpretation
o Rests on necessary and proper clause. Bank is necessary administration section of gov’t
o If the “end” is within the specified powers, then the measure should be deemed constitutional
Marbury v Madison
· Marbury is appointed justice of the peace last minute under lame duck President Adams, New prez Jefferson stops Marbury from getting his job, essentially nullifying the position and Marbury sues for job
· Issue #1: Marshall says there is a right to the commission because all procedure was followed
o Issue #2: Therefore Marbury is entitled to remedy because there was an injury and law provides for remedy BUT
· Issue #3:Supreme Court doesn’t have jurisdiction here and Congress (through the Juducuary Act of 1789) cannot expand Supreme Court original jurisdiction
o Because the enumeration of original jurisdiction would be mere surplusage, entirely without meaning if Congress could expand original jd according to the court
· Court can declare laws unconstitutional because
o Constitution imposes limits on gov’t powers and these limits are meaningless unless subject to judicial enforcement
o Inherent to the judicial role to decide the constitutionality of the laws it applies
o “it is emphatically the province and duty of the judicial department to say what the law is”
o Court’s authority to decide cases arising under the Constitution implied the power to declare unconstitutional laws conflicting with the basic legal charter
o Judges would be violating oath if they enforces unconstitutional laws
· An unelected judiciary has to define the line between government power and individual liberty because of the Madisonian dilemma neither the majority nor the minority will be able to regulate its own power.
The idea that the Supreme Court and it’s decisions are supreme over state law and state court decisions.
· Do the Supreme Court’s Decisions Contron the Constitutional Judgments of all other Actors?
· Judicial Supremacy as to Specific Judgements?
Cooper v Aaron
o Federal courts also have the authority to review constitutionality of state laws and the actions of state officials
o In this case federal court ordered desegregation in Arkansas and the state disobeyed the order claiming they were not bound to comply with judicial desegregation decrees.
o “Article 6 of the Constitution makes the Constitution the supreme Law of the Land…. Marbury v Madison declared the basic principle that the federal judiciary is supreme in the exposition o
· Justice Black: formalist: no inherent presidential powers (textual argument)
· Douglas: allows president to act without express statutory or constitutional authority so long as the president is not usurping the powers of another branch. Here President usurping because it is a taking and steel companies must be compensated for this and therefore Congress power under spending clause
· Frankfurter and Jackson: President may take any action not prohibited by the constitution or a statute. And Congress had just rejected giving the president the authority to seize industries and that this was a clear decision to preclude Truman’s executive action. President has max authority if congress is allowing, minimum when congress prohibits.
· Dissent: Broad inherent authority. President may act unless such conduct violates the constitution. President only answers to the people and the Constitution
· The framework divides exercises of Presidential power into three categories: First, when “the President acts pursuant to an express or implied authorization of *2084 Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” Second, “in absence of either a congressional grant or denial of authority” there is a “zone of twilight in which he and Congress may have concurrent authority,” and where “congressional inertia, indifference or quiescence may” invite the exercise of executive power. Finally, when “the President takes measures incompatible with the expressed or implied will of Congress … he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” Ibid. To succeed in this third category, the President's asserted power must be both “exclusive” and “conclusive” on the issue.