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Constitutional Law I
University of California, Hastings School of Law
Obasogie, Osagie K.


Constitutional Law I

Spring 2016

I. The Constitution and the Supreme Court

The Origins of the US Constitution

Articles of Confederation- The OG, governing document.

The key idea was state sovereignty and granted only certain power to federal government

All other power went to the states
This was an initial attempt to deal with the tension b/w states and the federal power

By modern standards the following was “missing” from this initial governing document.

No real executive or judicial authority (2) No ability to tax (3) No ability of federal government to regulate commerce (4) No bill of rights.

Two Contrasting Views

Madison Republican Theory – People will subordinate their private interests to the public good.

Civic virtue is the heart of Republican theory

Dialogue and discussion are key to this process and modeled after a town hall meeting

Anti-Federalism – Opposed expanding of the federal government

Concerned that Constitution removed people from the political process and didn’t like the idea that a distant central government could tell people what to do.

Believed the new system would exclude people from public affairs
Wanted people to constantly be engaged in public and political decision making.

The Federalist No.10

Factions: Small groups driven by passions that are adverse to the rights of others and/or the common good

Source of factions: Unequal distribution of property and power.
Madison believed that factions cannot be eliminated, but believed that it could be controlled through two mechanisms
Two mechanisms to limit the effects of factions.

Representative government— refine and enlarge public views by screening them through a group of elected officials.
Large republic—more options/opportunity for accurate representation. Large number of participants screen out people with bad intentions from gaining power.

The Federalist No. 51

Madison believed that humans are by nature self-interested and ambitious.
Madison is developing the theoretical context for key ideas that we see throughout the constitution.

In order to control the problems of factions and self-interest he advocates “double security” (p. 19-20).

Madison’s Double Security:

Separation of powers— Each part of government (judiciary, executive, and legislative) is independent of the other and can check one another.
— Distribution of power between federal and state governments.

By diffusing power, each entity’s interests and ambitions keep an eye on one another.

§ “Ambition must be made to counteract ambition.” Conflict between branches is by design, i.e. no one branch should have all the power

The Basic Framework pg.

Constitution, Art III § 1, 2

Marbury v. Madison and Martin v. Hunter’s Lessee represent the initial outlines of the Court’s powers of judicial review and appellate jurisdiction over state court decisions on constitutional issues.

The Supreme Court has the power of Judicial Review established in Marbury v. Madison.

Judicial Review is the power of the court to declare something unconstitutional. This is established in Marbury v. Madison, “The Constitution controls any legislative act repugnant to it. It is the role of the judiciary to interpret the Constitution” (p. 30-31)

Marshall ruled that the Constitution was to be a supreme document that cannot be changed by the whims and wills of Congress
Marshall made this decision in favor of his political opponent, but it also expands his own power as a Supreme Court judge

This could be seen as a strategic political decision to rule in favor of Marshall’s opponent so as to not force a standoff b/w judiciary and executive branches and he’s giving the judiciary an incredible power to strike down the laws of Congress.

Marbury Background


John Adams – Federalist President voted out of office

Senate is dominated by Federalists. Adams attempted to pack courts with federalists’ judges right before he left office.

Marbury is one of his last minute judicial appointees

John Marshall – Secretary of State under Adams, becomes Chief Justice of the Supreme Court

Marshal is writing the opinion and decides this case, which may demonstrate a conflict of interest

Thomas Jefferson – Incoming Republican President
The documents for the commission for the judges were signed but never delivered.

The new President Jefferson refused to deliver these documents.


Documents for the commission for the judges were signed but never delivered.

The new President Jefferson refused to deliver these documents
Marbury filed suit to force Madison (new Secretary of State under Jefferson) to deliver the commission.

1. Does Marbury have a right to the commission? Yes.

When commission is signed by president, that’s when appointment is made and right is conferred from executive to person receiving the right.

2. Does the law afford him a remedy? Yes. 

Political appointment (political activities) versus individual rights (legal rights): it is one thing when the executive makes appointment as part of political responsibilities; court will defer to executive there. But here, the commission confers legal rights. Issue is about a right being given to someone and how that right can be vindicated. This is within the purview of the Court. 

3. Can the Supreme Court provide the remedy sought, a writ of mandamus?

Supreme Court could not force President to deliver Marbury’s commission. Under Article III, Section 2, Clause 2 of the Constitution, the Supreme Court only has original jurisdiction in limited cases. This is not one of those cases. 

Distinctions between original and appellate jurisdiction—

Original: When a court is hearing it for the first time
Appellate: Reviewing decision of a lower court. 

Supreme Court does not have the proper jurisdiction to enter judgment.

Congress cannot extend the original jurisdiction of the Supreme Court. Judiciary Act of 1789 purported to give the Supreme Court original jurisdiction to decide this type of case. Marshall found that this part of the Judiciary Act was unconstitutional. Congress could not supersede or amend the Constitution. 

Why is Marshall making this decision? Be skeptical.

Marshall is ruling in favor of his political opponent, so it seems strange… But – Marshall is also expanding his own power as a Supreme Court judge. 
o This can be viewed as a skilled political decision by Marshall to rule in favor of his political opponent so as to not force a standoff between judiciary and executive branches. He is giving the judiciary an incredible power to strike down the laws of Congress. 

Two difficulties created by judicial review

Inter-temporal difficulty: What best expresses the will of the people? The constitution as written in the late 18th Century or the contemporary prerogatives of a democratically elected Congress?
Counter-majoritarian difficulty: Judges themselves are not democratically elected, unlike Congress. Congress is directly accountable to constituents, but judges are not.

helps sooth counter majoritarian concerns by limiting Constitutional interpretation to a mechanical and texualist process.

Frames judiciary as a department that says what the law is – just mechanically situating the Constitution.
The Court is a democratic entity b/c of the transparency involved in issuing written opinions that explain their interpretations.

The Supreme Court has appellate jurisdiction of state court decisions concerning constitutional issues.

This was established in Martin v. Hunter’s Lessee, when the Supreme Court reversed and remanded a case back to the Virginia Court of Appeals.

Facts: Martin is a British subject whose land was confiscated by the state of Virginia. Hunger is a citizen who received the land in question from the Virginia government. The issue here is the proper dispensation of land pursuant to treaties between US and England. Virginia Trial court said the land belonged to Marting. Court of Appeals reversed and said it belonged to Hunter. The US Supreme Court reverses and remands the case back to the Court of Appeals w/ instructions to enter judgment in favor of Martin. Virginia refused to follow this order.

The Supreme Court argued that it had appellate jurisdiction of state court decisions concerning constitutional issues via § 25 of the Judiciary Act of 1789.
The Virginia appellate court argued that § 25 was unconstitutional because it infringed on Virginia’s sovereignty as a state. They argued that Congress impermissibly expanded the Supreme Court’s appellate jurisdiction beyond what was enumerated in the Constitution.

Virginia’s State Sovereignty Argument

The Judiciary Act is in conflict with the plain meaning and reading of t

States that ratified the Constitution. States serve as an administrative convenience.

Therefore, the Federal government’s primary relationship is with “the People” and not the States as sovereigns.

Textual Approach: Focusing on the interpretation of text to understand the limits of power, eg what does “necessary mean in the necessary and proper clause?

Maryland argues for a stricter definition of necessary; as in not merely convenient or useful, but indispensable.
Marshall takes necessary to have broader meaning in that necessary means what is convenient and will move forward the enumerated powers

Looks like a power grab again b/c necessary has never meant convenient it means necessary. -_- How can you have a broad meaning of necessary?!

Structural Approach: The proper relationship b/w Federal government and States

Court just says the Federal government is supreme by its nature over the States

When someone says, “just because” better watch out.

Second Issue: Can Maryland tax the Federal government? No.

Maryland Argues:

Pg. 60 It is not resisting an act of Congress, but is simply retaining the authority as a sovereign power to tax those it deems appropriate.

Court responds that Maryland cannot tax the Federal government:

Consequentialist Approach: Any other interpretation would lead to negative consequences or outcomes.

The power to tax is the power to destroy; if the States could tax the Fed gov, this would threaten the existence of a central government

The Federal government can already restrain States’ ability to tax (eg. Imports and exports). Therefore Federal government can impose other restrictions, such as preventing States from taxing it.
Structural Argument: Federal government is supreme and therefore States cannot control the Federal government. While the States have representatives in Congress, the Federal government does not have representatives at state level to protect its interest. Also, other States do not have representation in state legislatures and they would also be taxed if one State could tax the Federal government.

An Approach in Consideration to Natural Law

The idea that there are universal moral principles that are the basis of all society that should govern/trump written laws and other legislative acts.

The debate of whether we should use Natural Law is found in Calder v. Bull

Facts: Dispute over a will. We’re reading this case to explore the debate on “natural law” between Justices Iredell and Chase.

Justice Chase argues in support of natural law
Justice Iredell argues against natural law, saying that courts can only enforce what is written. The purpose of a written constitution is “to define with precision the objects of the legislative power, and to restrain its exercise within marked and settled boundaries”

The Power of Political Control Over the Supreme Court pg. 69-82

Constitution, Art III, §2

Political control over Supreme Court (p. 70-75):

Constitutional amendments: Overrule Supreme Court decisions
Power to appoint: Supreme Court justices appointed by executive
Impeachment: Judges can be removed from office
Life tenure: Executive branch can have a lot of control over content of court for long time
Informal mechanisms: Judges tend to not make decisions that deviate too far from the mainstream

Congress has the power to alter appellate jurisdiction of the Court

Referred to the Exceptions Clause: Article III, §2, Clause 2 § “With such exceptions and under such regulations as Congress shall make.”