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Constitutional Law I
University of California, Hastings School of Law
Massey, Calvin R.

Con Law I- Massey (F07)


Federalist= want the federal government to make most of the laws
Anti-Federalist= want states to retain the power to make most laws
Philidelphia Convention of 1787

Created new presumption that unless the federal govt could find authority for its acts in the Constitution it had no authority to act

I. Judicial Review

A. Marbury v. Madison (1803)
1. Background
a) Federalists created 16 new judiciary positions in circuit courts and appointed them at the 11th hour.
b) Anti-Federalists took away the circuit courts by repealing the Judiciary Act
c) Marbury never received his commission for justice of the peace because president Adam’s Secretary of State Marshall did not get the commission to Marbury
d) New Secretary of State Madison left the commission sitting on his desk and refused to give it to Marbury
e) Marbury sued in the Supreme Court for a writ of mandamus to get his commission
2. Three issues
a) Does Marbury have a right to his commission?
(1) Yes, because Marbury got his appointment
(a) At appointment, the job is his property
(2) But, property usually does not change hands until delivery
(a) Delivery did occur constructively in that the Sec of State was an agent of the President and the President had already “delivered” the commission to Marbury
b) Does the law provide Marbury a remedy?
(1) Not stated in the Constitution, but Marshall holds that it is implied
(2) The very essence of civil liberty is that people can claim protection of the laws
(3) It is the government’s job to provide that protection
(4) It is the nature of law to provide a remedy; without enforcement, the legal right would have no meaning
(5) Marbury has a right to the commission, so he must have a remedy
c) Is Marbury entitled to the remedy?
(1) Marbury is seeking a writ of mandamus
(a) The source of jurisdiction for the writ is through the 1789 Judiciary Act
(b) The source of the Supreme Court’s jurisdiction is Art. III of the Constitution
(i) Without Art. III, the Court would not exist
(c) Congressional statutes that grant jurisdiction to the federal courts stem from the “exceptions” part of Art. III
(i) Here, Congress granted the Judiciary Act which gave exclusively jurisdiction to the Supreme Court over writs of mandamus
(2) The Judiciary Act conflicts with the Constitution
(a) Art. III says the original jxn of the Court is when states sue each other or when foreign heads of state are a party
(b) This section of the Judiciary Act is trying to expand the Court’s original jxn over a case not listed in the Constitution
(3) But, does section 13 of the Judiciary Act actually grant original jxn?
(a) It doesn’t say anything about original jxn; it talks about appellate jxn
(b) If the Act actually is talking about appellate jxn, then Marshall’s argument dies; there would be no conflict to discuss
(i) The case would be dismissed for lack of jxn
(ii) Marbury would still be screwed, but the Court’s power of Judicial Review never would have been established in this case
(4) Marshall reads the Act in such a way in order to discuss what he viewed as a larger issue worth settling—the issue of Judicial Review
d) Marshall’s Arguments for Judicial Review
(1) First, all the judges take an oath to uphold the Constitution
(a) How can judges keep this oath if they cannot strike down a law that clearly violates the Constitution?
(2) Second, the judiciary’s duty is to say what the law is
(a) As part of this duty, they must interpret the Constitution
(i) The court’s special duty is to interpret the law and clear up the ambiguities
(ii) The Constitution is just a higher form of law like all others that judges interpret
(3) Third, we have a written Constitution—not all countries (like England) do
(a) The written Constitution has some restraining purpose; it is the original enabling document
(b) The Federal government has no authority to do anything unless it can find authority in the Constitution
(c) If written Constitutions cannot be enforced against the Legislature, the written Constitution has no meaning or authority in its purpose of limiting the powers of government
(4) Fourth, judicial review is implied from the fact that Art. III gives the federal courts jurisdiction over all cases arising under the Constitution
(5) Fifth, judicial review is implied from the Supremacy Clause that the Constitution is the supreme law of the land and binding on state courts

B. Scope of Judicial Review
1. Marshall recognized that there are some issues that are not subject to judicial review
2. Ministerial acts (any act that executive officer can do) of an executive officer are reviewable, while actual executive discretion is not (once it is determined that the executive officer can do the act the way he does it is not reviewable)
3. Is Judicial Review mandatory (obligatory) or discretionary?
a) Marshall’s quote says that if the Court has jxn, it MUST decide the issue or else it commits “treason” on the Constitution
b) Brandeis reviews all the rules that determine when the Court will make a Constitutional decision—the Court will basically avoid deciding a Constitutional issue whenever possible
(1) First rule: no constitutional decision in a non-adversarial proceeding simply for an advisory decision
(a) The Constitution gives jxn to “cases and controversies”
(b) The Court grounds its advisory rule on the reading of this phrase
(2) Second rule: the Court will not decide a constitutional issue before it is “ripe”—they will not “anticipate” a question of constitutional law
(a) Guy in Washington suing over discrimination for not being let into law school
(b) By the time the suit gets to the Supreme Court, the point is moot because the school let the guy into school and he was in his last quarter
(c) Since the school would not have expelled him if they lost, the Supreme Court refused to answer the question of whether the school’s admission process was unconstitutional
(3) Third rule: the Court will not formulate a rule of constitutional law broader than is required by the facts
(4) Fourth rule: The Court will decide a case on a non-constitutional issue if possible to decide it on other grounds, without looking at Const
(5) Fifth rule: Court will not rule on validity of a statute unless person bringing the suit has been injured by it (standing to sue)
(6) Sixth rule: Court will not pass upon the constitutionality of a statute at the insistance of one who has availed himself of its benefits (standing to sue)
(7) Seventh rule: Where it is debated whether a statute is constitutional, if there is a possible interpretation that will make it constitutional, it will be given that interpretation
c) All of these principles limit the Court’s power of judicial review
(1) Marshall did not follow any of these rules in Marbury
(2) Are these rules a good idea?
(a) Avoid the constitutional issue whenever possible:
(i) If this rule did not exist, then more cases
(ii) Who corrects the Supreme Court when they get it wrong?
(a) It’s tough to amend the Constitution
(b) It’s tough to appoint new Justices
(c) In other words, it is very hard to right any wrongs
(iii) With fewer constitutional issues decided, you avoid more error
(a) You allow the issue to develop outside the Court for a longer time
(b) This encourages the other branches of government to recognize their constitutional duties and decide some constitutional issues themselves
d) Similarities between Two Approaches
(1) Both agree that where possible, we should read a statute not to conflict

C. Judicial Exclusivity in Constitutional Interpretation
1. Cooper v. Aaron (US SC- 1958)
a) Governor of Arkansas refused to desegregate the schools, stating that Brown did not apply to Arkansas because it was not a party to the action
b) Every Justice signed the decision stating that when the Court decides the Constitution, everyone must follow it—the ultimate touchstone of the Constitution is what the Court says about it
c) But, look at Frankfurter’s quote :
(1) Constitutionality is based on what the Constitution says, not what the Court has said about it
(2) As a practical matter, the Cooper opinion is right: the Constitution means what the Court says it means;
(a) But, is this theoretically true?
(b) There is a duty of the other branches of government to interpret the Constitution for themselves
2. Does the president have the constitution

(2) Story also argues that for stability and uniformity, the Court needs to have this jxn
(a) This is a prudential, pragmatic argument
(b) This argument implies that Story was a believer in a view of federal power that was not settled yet
(3) Constitution says that state judges are bound to follow federal law
3. Adequate and Independent State Grounds
a) If a state court decides a case based solely on state law, can the Court review it?
(1) The Court has never decided whether there is a constitutional limit on the Court’s appellate jxn
(2) If Congress wrote a jxn statute giving the Court jxn over state cases decided solely on state law, would that be constitutional?
(3) Many are of the opinion that this would be an unconstitutional statute, but the Constitution does not expressly forbid it
(a) If it is unconstitutional, it comes from the structural argument that states have a zone of autonomy through the idea that the federal government only has the powers specifically given to it and the states have the residual authorities
b) Two Factors:
(1) Adequate
(a) Means that the state law must be adequate for the decision without any need for federal law
(b) If state law is adequate, but it creates a new federal problem, then the SC would review it
(2) Independent
(a) IF the state had an identical state law to the federal law, then likely would be independent, so long as did not use any federal decisions in interpreting
(b) Courts sometimes surrender independence to federal law
(c) Constitution is a minimum, not a maximum, meaning that if it is not above min, it is not independent
(d) State can make more protections than the Const. but not less
c) Process for Use:
(1) Presumption Against independence and adequacy
(a) Michigan v. Long- Presumption is easily overcome, so long as the court, in their opinion, places a disclaimer that “federal law is only being used for GUIDANCE”
d) Always make a state constitutional argument first; if you win under the state constitution and the opinion states that only state law was used to determine the outcome, your opponent has no recourse to the US Supreme Court
e) If a state in its law incorporates federal law, then the state law will never be independent of federal law
(1) For example, in the CA constitution’s “criminal bill of rights,” it explicitly says that the rights will not be more expansive than the US Supreme Court’s interpretation of the US Constitution
(2) So, in theory, this fully incorporates federal law into the area of CA criminal rights
(3) So a criminal rights case completely based on CA constitution could still be reviewed by the US Supreme Court because it would not be truly independent
4. Possibility for Overstepping by SC:
a) Bush v. Gore (US SC- 2000)- Court holds that they are allowed to review whether method for choosing pres was constitutional, even though constitution says states get to determine method for electing
b) State legislature has 7 day recount deadline, and State SC court is changing that and since this is a significant departure from the legislative scheme it becomes a Federal Question since the CONSTITUTION grants the state legislature the right to set its deadlines
· It is a requirement under state constitution that voter satisfaction is paramount, and 7 days is needed for that.
(1) Court seems to FEDERALIZE a state court issue
(2) Dissent (Ginsburg): notes that we are denying states the ability to regulate themselves as states