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Constitutional Law I
University of Cincinnati School of Law
Bryant, A. Christopher

Constitutional Law Notes
Fall 2011 / Spring 2012
Judicial Review
Marbury v. Madison (United States Supreme Court – 1803)
·          Parties:
·          Plaintiff: Marbury, appointed by President Adams to serve as Justice of the Peace in Washington, DC; appointment did not go through before the end of President Adams’ term; seeking a writ of mandamus to fulfill commission
·          Defendant: James Madison, President Jefferson’s Secretary of State; believes that Marbury is not entitled to commission
·          Legal Issues:
·          Does Marbury have a right to his commission?
·          Yes; the commission was signed by President Adams and affixed with the seal of the Secretary of State, therefore it is valid
·          If Marbury has a right to his commission, and that right has been violated, do the laws afford a remedy?
·          Yes; it is the duty of the government, through the courts, to provide remedies to ministerial actions
·          Marbury’s commission is a ministerial action, not a discretionary action
·          Had Marbury’s commission been a political appointment or other act at the discretion of the Executive, then there would be no remedy – the only remedy to political acts is to vote the Executive out of office
·          If a remedy is afforded, is it a writ of mandamus issued by the Supreme Court?
·          Yes; Marbury is correct in seeking a mandamus – mandamus is the correct writ to solve his problem – the Judiciary Act of 1789 allows the Supreme Court to issue writs of mandamus to the district courts, when the Supreme Court is acting in an appellate capacity (Marshall takes out of context in his opinion – p.10)
·          No, it is unconstitutional for the Supreme Court to issue a writ of mandamus in this case – the Supreme Court does not have original jurisdiction in this area, as outlined by Article III, Section 2 of the Constitution
·          In order for the Supreme Court to hear this case, it would have to come before the Court in an appellate capacity
·          Article III, Section 2 does not give the Supreme Court original mandamus power, but does enumerate categories of original jurisdiction
·          What does Marbury v. Madison Accomplish?
·          Calms down the debate over judicial review between Federalists and Jeffersonian Republicans – all sides recognized some form of judicial review, but by refusing to act in the Marbury case, the Court avoided a showdown the would have required the opposing Administration (Jefferson) to act or made the Court look impotent
·          Establishes that issues of jurisdiction must be sorted out before a case proceeds in the court system
·          Establishes that the Constitution’s definition of what constitutes original and appellate jurisdiction must be respected at all times
·          Furthers the belief that the courts cannot act preemptively – can only decide matters that arise in cases
·          Enforces the supremacy of the Constitution – final and authoritative; will be dictate terms over other government acts such as the Judiciary Act of 1787
·          Madison ultimately wins case because the Supreme Court, though it objects to Madison’s position, does not believe it has the authority to act
·          Establishing Judicial Review – Marshall’s arguments for Constitutional Supremacy
·          Structural Implications of a Written Constitution (Structural Argument) – a written constitution is meaningless if Congress can opt to ignore it – Marshall infers that it is the role of the courts to enforce constitutional limits; separation of powers will keep courts within their boundaries
·          Article III grants Judicial Power Over Cases Arising Under the Constitution (Textual Argument) – Article III does grant federal courts the authority to decide cases arising under the Constitution; however, a case does not arise under the Constitution unless judical review exists (somewhat circular)
·          Constitutional Provisions Specially Directed to Courts (Textual Argument) – some provisions in the Constitution directly apply to the role of the courts and court regulations
·          The Supremacy Clause – Article VI, Clause 2 (Textual Argument) – “Constitution and the laws of the United States which shall be made in pursuance thereof [as] the supreme Law of the Land.” – Established primacy of federal law over state law, allowed for interpretation on grounds of substantive validity, not just procedural correctness
·          Judges’ Oath (Textual Argument) – Article VI requires judges to take an oath to support the Constitution – Marshall argues that judges would violate the oath if they supported unconstitutional laws
·          Controversies with Judicial Review
·          Are the courts the exclusive interpreters of the Constitution? What happens if Congress or the President interprets the Constitution differently than the courts? How binding is judicial review?
·          The Court’s judgments bind the parties in a case, but controversy surrounds the extent to which politically accountable branches of government may differ with the court’s rulings in their actions
Cooper v. Aaron (U.S. Supreme Court 1958) – unanimous
·          Arkansas governor says he is not bound by the decision in Brown v. Board of Education because he is not a party to the case; tries to block school integration
·          Supreme Court disagrees with governor, refers back to Marshall’s ruling in Marbury – “it is emphatically the province and duty of the judicial department to say what the law is.” – establishes that the federal judiciary has the authority to give the ultimate interpretation of the law of the Constitution – Arkansas is bound to accept the rulings of the court
·          What happens when the rulings of the Supreme Court are inherently flawed by politics (Dred Scott)?
·          Surplusage: Language included in a legal document that does not need to be there in order for the document to communicate its intended purpose
·          Must assume that every word does independent work in a legal document
·          Lawmakers and issuers of contracts need not repeat themselves!
·          Holding: Judges’ actual decisions in cases
·          Dicta: Arguments made in expressing the opinion of a court
Utility / Lack of Utility of Judicial Review:
·          Counter Majoritarian Role
·          The Court puts brakes on the political branches of government – necessary because legislatures may pass legislation that is intolerant of minorities or in violation of constitutionally guaranteed rights – the court has the ability to remedy this problem
·          Some believe that courts should seek to uphold a moral vision of the Constitution that may not be embraced by the majority of citizens or legislatures
·          Judicial Review does come with risks: 1) may be seen as a repudiation of democracy because binding decisions are not made be elected officials, 2) danger may stem from the difficultly of repealing Supreme Court decisions – if one political party stacks the Court, Constitutional law may turn into partisan politics
·          Avoiding the Counter Majoritarian Problem
·          Argument that judicial review is not anti-democratic because it implements the majority view of earlier generations as to what the limits of government power should be
·          Is not anti-democratic because the Court’s decisions can be tools for eliminating barriers to participation in the democratic process
·          Stability
·          Argument that the Constitution will have no settled meaning unless some branch of government has a final say on its meaning (tendency of this argument to favor judicial supremacy)
·          Entrenched Error
·          Judicial interpretations of the Constitution are very difficult to overturn if they are incorrect and neither Congress not the President may ignore Supreme Court decisions
·          Limited avenues for correction: 1) persuading the Court to change its mind (new justices, new case, etc.),
2) impeaching and removing justices, 3) Constitutional Amendments
·          Erosion of Constitutional Responsibility of Legislative and Executive Branches
·          Will reliance on the judicial branch to interpret laws zap the will of other branches to consider the constitutionality of the their actions seriously?
Methods of Constitutional Interpretation
·          Interpretivists v. Non-Interpretivists
·          Interpretivists – believe that the only legitimate form of judicial review is interpretation of the original text of the Constitution
·          Non-Interpretivists – believe that trying to interpret the original text of the Constitution is pointless and that judges should use the Constitution as a vehicle for reflecting current notions of fundamental justice; also believe that review of Constitutional issues may utilize other texts or materials that reflect Constitutional norms
·          Textual Method of Interpretation – belief in the primacy of the text itself and belief that interpretations must look to the text as must as possible in making decision on constitutionality; consultation of other sources for meaning is only permitted if the text itself is inadequate to deduce accurate meaning (i.e. “cruel and unusual” – depends on time and place for social norms)
·          Historical Methods of Interpretation
·          Original Intent – method of interpretation based on discovering the authorial intent behind each section of the Constitution; advocates insist that focusing on the original intent of the framers inhibits the tendency of politically unaccountable judges from remaking the Constitution to their own liking
·          Original Meaning – method of interpretation based on discovering the original meaning of the words of the Constitution, as they were understood in the late 18th century
·          Vectors of History Interpretation – focuses on how societal norms have evolved since the time of the Constitution’s writing and looks at how concepts would apply to present time (i.e. making contraception use a crime in not jusiticable)
·          Structural Arguments Approach
·          Method of Constitutional interpretation based on analysis of the relationship between different branches of government as outlined in the Constitution (i.e. Marshall’s argument in Marbury that written constitution implies an active role for the judiciary in deciding constitutional law issues)
·          Structural arguments often come into play in disputes about federalism – allocating power between federal government and the states; or in disputes about separation of powers
·          Doctrinal Arguments Approach
·          Refers to the common law method of deciding cases on precedent/ stare decisis
·          Consider that common law approach to problem solving may be at its weakest in Constitutional interpretation because of 1) the difficulty in overturning past decisions, and 2) the uncommon frequency with which the court adheres to past decisions
·          Prudential Arguments – relate to using the court system in a particular way, often surround separation of powers issues (i.e. should the Court review procedural tasks of the Senate? No.)
·          Cultural Arguments – arguments rooted in social norms and concepts of morality; rarely if ever used alone, but often used to buttress other types of Constitutional arguments
Tiers of Judicial Review
·          The courts use three levels of scrutiny to review Constitutional issues (applies to many, but not all, areas of law)
·          Minimal Scrutiny (Rational Basis) – Default, Lowest Level of Review         
·          Courts begin with the assumption that statutes and other government actions are valid
·          Unless there is a reason to doubt constitutionality, the challenger has the burden of proving that a law, regulation, or executive act is not rationally related to a legitimate government objective
·          Weak basis for review and is very deferential to political branches of government
·          Courts will generally accept hypothetical as well as actual objectives
·          Intermediate Scrutiny
·          Utilized when government action comes to the courts with taint of presumptive invalidity but not enough to invoke strict scrutiny (ex: discrimination based on sex)
·          Defender of government action must prove that the actual purpose of the statute or action is important and that the statute or action is substantively related to the accomplishment of the actual purpose
·          Inherently subjective
·          Strict Scrutiny
·          Courts will apply this level of scrutiny to government actions that are presumed to be invalid (ex: a statute that classifies by race is in stark opposition to the Equal Protection Clause)
·          Defender of the government action has the burden of proving that the law or executive act is necessary to accomplish a compelling government objective – extremely difficult standard to meet
·          This standard was met in attempts by the government to dismantle the effects of de jure segregation after the Civil Rights movement – race was assessed so that schools could be integrated
·          Usually comes into play when dealing with equal protection and due process
·          Calder v. Bull (United States Supreme Court – 1798)
·          CT legislature passed a law requiring second review of a will before it could be executed – law was challenged ont eh grounds that it was changed after a problem had arisen – ex post facto law
·          Supreme Court held that the ex post facto clause in the Constitution applies only to criminal laws
·          District of Columbia v. Heller (U.S. Supreme Court – 2008)
·          Heller is a private citizen gun owner who was denied a permit for a handgun in Washington, D.C. – filed suit against the District alleging that its gun control laws were unconstitutional and violated his 2nd Amendment rights
·          District Court held for the District, stating that 2nd Amendment only applied to regulated militias
·          Federal Appeals Court reversed and found for Heller, declaring that the District’s law 1) baring the registration of handguns, 2) prohibiting carrying a weapon without a license, and 3) requiring all lawful firearms be kept unloaded and disassembled or trigger locked violated 2nd Amendment rights
·          Supreme Court:
·          Scalia (Majority): Original Meaning Interpretation – Affirms the ruling of the federal Appeals Court – 2nd Amendment does not solely apply to regulated militias
·          Believes the operative clause in the 2nd Amendment is “the right of the people to keep and bear Arms, shall not be infringed” – controls constitutionality, refers to pre-existing right that predated the Constitution, and refers to ability to keep guns for private use and intrinsically for defense against tyranny
·          No previous Supreme Court decision interferes with the Court’s ruling in Heller
·          Stevens (Dissent): Original Intent Interpretation – Agrees with the District Court that 2nd Amendment only regulates the right to bear Arms in a militia
·          Breyer (Dissent): If the right to bear Arms extends outside of the 2nd Amendment, any law regulating the use of fire arms would have to “unreasonable or inappropriate” to violate the 2nd Amendment – the D.C. laws are reasonable and appropriate
·          Recent singular effort of court to grapple with constitutional ambiguity in the absence of precedent – this was the first case to directly address whether the 2nd Amendment right to bear arms applied to individuals or only to regulated militias
*Posner – very Conservative, but a pragmatic interpreter of the Constitution – believes that Scalia erred in his decision, that 2nd Amendment is antiquated
*Legal Process Theory / Purposivist Interpretation – interpretation based on first seeking to discern what the law makers’ purpose was in enacting a certain law, and second, if that interpretation has given the text of the Constitution a meaning it cannot bear? If the answer to the second question is no, the interpretation is valid
·          What is Congress’ Ability to Limit the Power of the Supreme Court and Federal Courts?
·          Process of repealing Supreme Court decisions typically involves passing an Amendment – ex: 14th Amendment overturns Dred Scott
·          Congress can limit the scope of the Supreme Court’s power through Article III, Section 2 – Congress can limit scope of Appellate jurisdiction, not Original jurisdiction
·          However, the Constitution does not give Congress unlimited power to decide what types of cases the Supreme Court can hear – Internal and External limits bind scope!
·          Internal Limits: Nothing explicit in Article III that defines limit, but concept o

authority to charter a national bank – Maryland held that nationally chartered banks doing business within the state had to pay a $15,000 annual tax or purchase stamped paper from the state to issue bank notes
·          Parties:
·          Plaintiff: State of Maryland, trying to sue McCulloch for failing to pay state bank tax
·          Defendant: McCulloch, treasurer of the Baltimore branch of the Second National Bank who refused to pay tax
·          Legal Issues:
·          Has Congress the power to charter a national bank?
·          Does the tax Maryland levied on the bank represent an unconstitutional tax on an instrumentality of the United States?
·          Legal Reasoning – Chief Justice Marshall:
·          Question #1: Does Congress have the power to charter a national bank?
·          The people of the United States willfully and deliberately ratified the Constitution through the states, the Constitution is the binding and supreme law of the land
·          The powers of the federal government are absolutely enumerated in the Constitution, but included in the enumerated powers are implied powers via the necessary and proper clause, which gives Congress the power to enact laws to carry out business of government and any dept. thereof 
·          “there is no phase in the instrument [the Constitution] which, like the articles of confederation, excluded incidental or implied powers and which requires that everything granted shall be expressly and minutely described”  – 10th Amendment reserves power not delegated to the federal government to the states or to the people – this leaves open the possibility of implied or “possible” powers
·          Among the powers delegated to the federal government are broad powers to regulate commerce, raise armies and navies, etc. – government must also be entrusted with the power to execute these powers
·          Look to the “necessary and proper clause” – as it is written in the Constitution, “necessary” does not need to be interpreted narrowly – can apply to any means that are convenient, useful to accomplish goals – Under Maryland’s argument, the federal government would practically be stripped of its power to select the means for carrying out legislation
·          The placement of the elastic clause within the Constitution is informative: 1) it is placed among the powers to Congress, not the limitations, 2) its terms “purport to enlarge, not to diminish the powers vested in the government”
·          The elastic clause gives Congress broad discretion to select the means it will employ to achieve one of the legislative objectives permitted to it or to realize some other federal power independently granted in the Constitution – under the modern standard of review, any Congressional objective that is rationally related to a legitimate, Constitutional objective will pass muster under judicial review – Congress may pick its “means” without much judicial oversight, but the “ends” must be Constitutional
·          Congress may find the creation of a national bank the most expedient vehicle for carrying out its regulation of the nation’s money supply, as such, it is Constitutional
·          Question #2 – Does Maryland have the power to tax the Second National Bank, an instrument of the federal government?
·          Default rules for determining whether the states or the federal government have authority:
·          The states, as reservoirs of authority, have the power to act on an issue
·          The federal government has been granted sole dominion over an issue by the Constitution
·          Both the states and the federal government have the power to act, but federal action prevails in the face of conflict
·          The power of the federal government to create a national bank implies a power to preserve it; The power to destroy (the power to tax), if wielded by another hand, is hostile to and incompatible with the powers to create and preserve; If there is conflict, the federal power must prevail
·          If the states had the power to tax a national bank, they would theoretically have the power to tax any federal entity – this could push the federal government out of existence, given the destructive nature of taxation – must have limits on the ability to tax
·          Structurally: the whole can tax a part, but a part may not tax the whole – if Maryland were to tax the federal government, the state would essentially be taxing all American tax payers as the source of federal funds – Maryland has no power to tax those over whom it has no jurisdiction; the ability of Maryland tax payers to elect the officials who will oversee taxing and spending is a sufficient check on oppressive taxation – no such check on power exists if MD tries to tax a federal entity
·          Maryland law taxing the Second Bank of the United States is unconstitutional
*Why is judicial intervention important in this case? According to Marshall, judicial intervention is most important and most acceptable/importnat when it is exercised to protect the representative nature of democracy
*Marshall points out that if Congress passes laws that abuse the necessary and proper clause, the Supreme Court will step in and declare such laws unconstitutional
*Marshall utilizes intratexturalism – using one part of the Constitution to resolve an ambiguity about another; applied to the elastic clause, if something was absolutely necessary, the Constitution would have said as much, otherwise there is a different meaning
*Marshall is committed to federalism – allowing the states to tax a federal entity would fundamentally alter the relationship between the states and the federal government
·          11th Amendment
·          Neither an American citizen nor any foreign person or government can sue a state unless the state consents or Congress abrogates the immunity by utilizing §5 of the 14th Amendment
·          A state official will not be considered a state unless the remedy sought against the state official would require the state to pay compensation
·          Implying “Default” Rules for Federal and State Power
·          When the Constitution is silent and does not grant exclusive authority over an issue to the federal government and does not deny authority to the states, there are three possibilities: 1) states have the power to act, 2) only the federal government can act, 3) both the federal government and state governments may act, but the federal action will prevail if there is conflict
·          When a state government acts on an issue and the Constitution is silent on whether that issue is the domain of the federal government or off-limits to the states, should states be presumed to have the power to act? The answer depends on the nature of the issue.