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Constitutional Law I
University of Cincinnati School of Law
Lockwood, Burt B.

Con Law Outline – Lockwood – Fall 2008
I. Allocation of State v. Federal Powers
a. Intro to Con Law:
1. We have the oldest Constitution in the world, written for an agrarian nation, but still applicable today. Only 17 amendments (not counting BoR), and 200 + years – we’re interpreting the C. The SC is considered the most respected institution in the world.
2. Madison introduced the BoR to get Congress to accept the C. Most people consider the BoR to be part of the C.
3. It would appear that the framers of the Constitution had a distrust of power. Even though we have this separation, the exercise of power often needs more than one branch.
4. Deliberations of the C Convention were private, but we had Madison’s notes (father of C). Secrecy was a key element, b/c it gave them the chance to compromise. A man could make a stmt and then go back on that stmt for the better good of the people without being seen as a hypocrite.
5. The C is meant to be a blueprint of our government. The Framers tried to create a government of limited powers – Jefferson wanted more than the C. He wanted Madison to create the BoR. The genius of the Constitution is that we seem to have the ability to turn any legislative issue to the courts with a willingness to agree with the ruling.
6. C doesn’t talk about the Judicial Branch as much as the other branches.
7. C was approved by the people – not the states, and this shows why the C has the power of the American People.
8. The Federalist Papers were propagandas to convince the states to agree to the C. Written by Madison, Hamilton, and John Jay.
9. Federalism – group of members are bound together with a governing representative head. The term federalism is also used to describe a system of the government in which sovereignty is constitutionally divided between a central governing authority and constituent political units (like states or provinces). Federalism is a system in which the power to govern is shared between national and state governments
10. Judicial Review –The power of the court to strike down acts of the legislative branch, judicial branch or states b/c they are unconstitutional.
i. The C doesn’t say that the court can strike acts of Congress, but Marshall said it was in the phraseology of Article 2 and 3.
b. Marbury v. Madison
1. This was a power struggle between the Federalists and the Republicans – Marshall and Jefferson – Judiciary and the other branches.
2. Facts: Marshall was Adam’s Secretary of State and the CJ of the SC. Adams party lost the presidential election, and he created positions for circuit court judges, and Justices of the Peace. The nominations for JPs were supposed to be sent out, but the person who was delivering them failed to serve all of the nominees. One of those nominees who didn’t receive his nomination was Marbury.
3. Jefferson would not honor the new position. Marbury brought a writ of mandamus against James Madison who became the new secretary of state under the Jefferson administration. This was done thought the Judiciary Act of 1789, which allows the SC to issue writs to public officers. Meanwhile, the Republican congress changed polices regarding the reconvening, and ultimately didn’t act on the case until February of 1803.
4. L: Marshall should have recused himself b/c of his personal involvement in the case (previous SoS and brother failing to deliver).
5. The court had to decide if there was a right to judgeship (Y), if there was a legal remedy (Y), and if the writ of mandamus was the right course(N).
6. Outcome: Marshall said what Jefferson did was wrong, but that the SC has no power to hear the case b/c § 13 of the Judicial Act is unconstitutional. It grants original jurisdiction to the SC – not the DC.
7. While a section of the Judiciary Act of 1789 granted the Court the power to issue writs of mandamus, the Court ruled that this exceeded the authority allotted the Court under Article III of the Constitution and was therefore null and void. So, while the case limited the court’s power in one sense, it greatly enhanced it in another by ultimately establishing the court’s power to declare acts of Congress unconstitutional. Marshall’s decision required no action – genius. Marshall wrote dicta about what Jefferson did so that he would get the message, but Jefferson “won” the battle.
8. Peculiar Delicacy – Marshall said that overruling the writ is a peculiar issue b/c it would be the SC telling the Executive what to do, but by stating that Congress was wrong, he can assert power to review acts of Congress and avoid telling the Executive what to do (they won’t obey, and this would weaken the authority of the courts).
9. The Genius of Marshall – Marshall found a common ground where the Court could chastise the Jeffersonians for their actions while enhancing the SC’s power. Marshall declared that Madison should have delivered the commission to Marbury; however, he ruled that the Court lacked the power to issue writs of mandamus.
10. Just as important, it emphasized that the Constitution is the supreme law of the land and that the Supreme Court is the arbiter and final authority of the Constitution. As a result of this court ruling, the SC became an equal partner in the government.
11. Usually, this case is thought of as establishing judicial review, but L thinks that it was an intentionally ambiguous ruling: to decide the case would mean Congress has attempted to affect the court’s jurisdiction, in a manner that would violate the C. The court has the power to refuse to accept that unconstitutional act (this is a narrow interpretation).
12. Marshall’s interpretation of Article 3 and § 13 of the Judiciary Act: L says that Marshall was doing selective reading of this section and ignored the word “appellate.” Marshall could have dismissed this case b/c it was in the wrong court (Marbury brought the action to the SC b/c he was a gov. official), but he saw it as an opportunity to give the court power, by stating that Congress gave the SC too much power (jurisdiction). Also, Article 3 seems to indicate that Congress can make exceptions as it sees fit when it comes to the jurisdictional powers of the Supreme Court. – Marshall could have interpreted this to mean the Judiciary Act was Constitutional.
13. Power of Judicial Review: The Constitution is Supreme
14. Creates a system of checks and balances to make sure that the branches are not making unconstitutional laws. L says there is always the political check that keeps them in balance. What’s wrong with just relying on that?
15. Weakness of JR: no enforcement power, not elected and only a reactive power.
16. The Coin of Judicial Review: The court can also say that the law is good, just and constitutional. If an act can go either way, then the act is supposed to be declared constitutional.
17. The court isn’t elected and can support the just laws that may not be popular. Today 40% of SC cases are against the Govt. and they usually lose. Congress can still repeal a law and the president can veto it.
18. Two conflicting ideas: fundamental law (limits on power / constitution) and popular sovereignty (the power of the people).
c. Martin v. Hunter’s Lessee (1816)
1. Marshall recused himself (he owned some

rable and manageable standards for resolving it.
c) The impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government.
d) An unusual need for unquestioning adherence to a political decision already made.
e) The potentiality of embarrassment from multifarious pronouncement bys various departments on one question.
v. Clark’s concurrence: You should be able to change things through the political process, but here the TN voters were being denied an opportunity to vote. Their only choice was to go to the courts and that’s why the courts should help in this situation.
vi. Frankfurter’s dissent: Precedent requires that the court does not decide these types of cases. TN will not obey the court and the court has no enforcement power so it will lose respect. The political system was meant for this to be fixed by elections or legislation not courts.
vii. Baker v. Carr is an example of a decision which leads to a revolutionary change in attitude. Just because it is a political case doesn’t mean it is a political question – this case deserves JR b/c none of the factors above are met. They rejected the argument that political doctrine applied in Baker v. Carr. Some examples of political questions: foreign relations, deciding when wars start and end, validity of enactments (determining how long a proposed amendment to the Constitution remained open, Coleman v. Miller.
e. National Powers v. Structure of Federalism
1. McCullouch v. Maryland
i. L says this is the most important case in Con Law b/c it est. implied powers and the foundations of federalism (state can’t impede on the federal gov.)
ii. Facts: Maryland was taxing the Bank of the United States. The Baltimore branch did not pay the tax and MD sued.
iii. Two Issues:
a) Marshall: Does Congress have the power to establish a bank? YES
Article I §8 has a laundry list of enumerated powers but no bank. Marshall says the necessary and proper clause intended to expand this list. Implied Powers Doctrine: Congress can do whatever is necessary to carry out the enumerated powers. The federal government is charged with high duties, surely it also has the power to carry out those duties.“Necessary” means convenient/appropriate not absolutely needed. Marshall sees necessary in a loose manner. “The power to Tax involves the power to destroy” – Marshall. He also said the judiciary should defer the legislature because the creation of the – Bank went through the whole political process. This seems to be the opposite of Marbury.
Can Maryland tax the bank? NO. The federal government comes from the people (who approved the constitution). People are the source of the power, therefore, Maryland is attempting to tax the people of the whole country. The states are inferior, therefore can’t tax the sovereign country. That would be like allowing the voters