Constitutional Law I Outline

BASIC OVERVIEW

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.

Not all Constitutional questions are addressed by the Supreme Court

Ex. Can the president send troops to war without Congresses endorsement?

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

NATURE AND SCOPE OF JUDICIAL REVIEW

I. JUDICIAL REVIEW

SCOTUS HAS THE POWER OF JUDICIAL REVIEW – Marbury v. Madison.

· Power of judicial review not explicitly in Art. III.

· Marbury v. Madison

o 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 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

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. à AVOIDANCE PRINCIPLE

§ 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.

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

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

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

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

SCOTUS HAS APPELLATE LEVEL OVER DECISIONS OF STATE COURTS à Martin v. Hunter’s Lessee

§ 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. 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).

o (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

II. POLITICAL QUESTIONS

POLITICAL QUESTIONS ARE NONJUSTICABLE à Nixon v. United States

Nixon v. United States

· FACTS: P was a senator who was impeached / P claims his trial was not by the ‘full’ senate (it was only by a committee) and therefore the impeachment is not valid / P claims the case falls under the political question doctrine

· HELD: case falls under the political question doctrine so the court can’t hear it / as long as the senate said he had a trial, the court was satisfied

· Baker v. Carr à two part test for deciding in nonjusticiable political question:

1. Textually demonstrable constitutional commitment

a. Does it appear that only one branch was given control over something?

2. Lack of judicially discoverable and manageable standard for resolving it?

· The provision of the Constitution that discusses the impeachment proceedings provides a textually demonstrable commitment” to let Congress interpret this portion of the Constitution.

· Art. I, § 3, cl. 6 provides “The Senate shall have the sole Power to try all Impeachments…”

· The Constitution indicates that the mechanics of the impeachment process are under the discretion of the Senate not the Court. The mechanics of the impeachment process are “nonjusticiable” (i.e. a “political question”).

· If you fall within the political question doctrine, it’s beyond judicial comment – the courts won’t address the meaning of the Constitution on issues concerning political questions.

· If the judiciary could review Senate impeachment proceedings, then the power of the Senatorial check on the Judiciary would be undermined.

· Concurrence said the area was not political question, but believe Senate fulfilled its role on try.

Pacific States Tel. & T. Co. v. Oregon à GUARANTEE CLAUSE IS A POLITICAL QUESTION

U.S. 1912 – Oregon’s Constitution permits citizens to enact laws through an initiative process. When citizens enacted a tax against a utility, the utility sued arguing that the Guarantee Clause (Art. 4, §4) guaranteed a Republican form of government and since the tax was enacted by citizens rather than elected representatives of those citizens, it should be repealed.

· Whether or not a state’s government is republican in form is a political question. It is Congress’ domain to define the character of a state’s government per Art. 4, § 4.

Baker v. Carr. – When Tennessee citizens sue under the Equal Protection Clause (14th Am.) because of a legislative apportionment scheme wherein certain districts had inordinately large populations, the Court held that the issue was justiciable, even though an action under the Guarantee Clause would not have been. The Court stated that, “Judicial standards under the Equal Protection Clause are well developed.”

Powell v. McCormack à JUSTICIABLE CASE. 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 AGE 25 Years and RESIDENCY OF STATE. 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.

Gilligan v. Morgan à Regulating militia following Kent State shooting. POLITICAL QUESTION/ Nonjusticable question.

§ “The nature of question to be resolved on remand are subjects [military] committed express to the political branches of the government.”

Goldwater v. Carter à Whether or not the president has the power to terminate a treaty with a foreign country without