Select Page

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

A)     History of Constitution
            Constitution was a reaction to events which preceded it.
Declaration of Independence authored by Thomas Jefferson was signed in 1776. Although possessing no legal authority, its ringing rhetoric complaining about British rule foreshadowed many of the Protections which would later become the Bill of Rights.
            Articles of the Confederation were ratified in 1781 by the 13 colonies. A of C was the first constitution and created a weak national government and a strong state governments which retained their sovereignty. A of C had no executive and no judiciary, only a Confederation Congress. Confederation Congress had authority to wage war, coin money, establish post offices, and deal with Indian Tribes, but had no power to tax and no authority to regulate commerce amongst the states.
            Serious Problems developed under the A of C concerning trade amongst the states. States adopted laws which discriminated against goods and services from other states. Confederation Congress was powerless to stop this. Congress also had no way to enforce its legislature since there was no judiciary or executive.
            Constitutional Convention met in Philadelphia from May- September 1787. Convention was supposed to amend A of C, but instead (secretively and possibly illegally) proposed abandoning the A of C for a New Constitution. Agreed that there should be a legislature, executive and judicial branch. But dispute soon arose as to how the Legislature would be constructed. Big states wanted power based on population (VA plan), small states wanted it to be based on sovereignty of each state (NJ plan). Compromise was reached in a bi-cameral legislature consisting of an Upper and Lower House. (Senate (NJ Plan), House (VA Plan). Convention also created a Supreme Court, but left the creation of smaller federal courts up to congress. Document was signed on Sept. 17, 1787.
            Ratification Process. Anti-federalists opposed ratification, because they felt that the National Government was too powerful and would supersede the state governments and because there was no enumerated individual rights. The Federalist Papers, propaganda to trumpet up support for the Constitutions Ratification in NY, written by Alexander Hamilton, James Madison, and John Jay. The FP’s are cited frequently by SCOTUS to find what the original intent of the constitution was. In VA, anti-federalists like Patrick Henry strongly opposed its ratification, but by June 1788, 10 states had ratified it.
            Addition of the Bill of Rights was essential to the Constitutions Ratification. 10 were passed by the states. These enumerated individual rights which could not be encroached upon by the Federal Government.
B)     Different Constitutional Approaches
Originalists- If it is neither in the constitution nor intended by the framers, then the legislature, not the courts, should address the issue.
1)      To correctly interpret the Constitution, draw must be limited to Framers Intent
2)      It is desirable to constrain non-elected judges in a democratic society from changing the constitution (the people ratified it)
Non-Originalists- The constitution is a living document which can be changed to adapt to new challenges (Bend-not-break model)
1)      Cumbersome amendment process cannot adequately meet the needs of a fast developing society.
2)      Impossibility to find the ‘Intent’ of the Framers since many dis-agreed and, historically far removed.
3)      It was the intent of the framers for the document to be interpreted.
Who Should Interpret the Constitution?
–          not expressly written in the constitution,
I)                  Judicial Review
–          Establishes authority for the Judiciary to review acts of Legislature & Executive regarding their Constitutionality and to interpret the Constitution.
–          American Creation (English Courts different)
–          Constitutional Reference,
o   U.S. Constitution, Article III, Sec. 2, Clause 2
§ SCOTUS has appellate jurisdiction, (protectors of the constitution).
A)     Origin
Marbury v. Madison (Marshall-1803)
            Facts: 1800 Election between John Adams (Federalist incumbent), Thomas Jefferson, and Aaron Burr (Republicans). Jefferson received popular vote but tied with Burr in the Electoral College. Adams while still president appoints his Secretary of State John Marshall (Federalist) as the 3rd SCOTUS C.J. Also appoints 42 judges. Secretary of State Marshall has his brother deliver most of them. Marbury’s was not delivered and once Jefferson took office and told James Madison as Secretary of State to refuse to deliver the remaining ones. Marbury sued in the SCOTUS asking for a writ of Mandamus to force delivery saying the SC had authority via Judiciary Act of 1789.
–          Judiciary has judicial review power capable of nullifying acts of Legislation and Executive decrees unconstitutional. JA of 1789 unconstitutional. Marbury loses.
–          When an act of Legislature and the constitution are at odds, the constitution trumps
–          Flip side of coin- SCOTUS can declare acts constitutional (just as important)
–          “It is emphatically the province and duty of the judicial department to say what the law is.” 
–          Extended the power of the courts by refusing power granted by congress.
B)     Extended to State Courts
Martin v. Hunter’s Lessee (Story-1816)
Facts: During the American War of Independence, the state of Virginia enacted legislation that allowed it to confiscate Loyalists property. Lord Fairfax (a loyalist) held land in VA. He died in 1781, leaving the land to Denny Martin (his nephew and a British subject). VA legislature voided Martins land grant and sold the land to David Hunter. The Jay Treaty, protected land owned before the War of Independence. Martin sued Hunter (the owner of part of the confiscated land).
Holding: First case to assert ultimate USSC authority over state courts in matters of Federal Law.
·         Story (judge writing opinion) found that it was clear from history and the preamble of the Constitution that the Federal power was given directly by the people and not by the States. Story then cited Article III, Sec. 2, Cl. 2, stating that “in all other cases before mentioned the Supreme Court shall have appellate jurisdiction” showed a textual commitment to allow Supreme Court review of state decisions. If the Supreme Court could not review decisions from the highest State court, the State courts would be excluded from ever hearing a case in any way involving a Federal question, because the Supreme Court would be deprived of appellate jurisdiction in those cases. Thus, because it was established that the States had the power to rule on Federal issues, it must be true that the Supreme Court can review the decision or the Supreme Court would not have appellate jurisdiction in “all other cases.”
·         Further, the Supremacy clause (Article VI) states that Federal interpretation trumps state courts interpretation.
·         If every state was free to interpret Federal Law as they saw fit, the codes would not be uniform and therefore unenforceable. (Foreign nations would not enter into treaties with us because it would vary from state to state).
C)     Limits on Judicial Review “Polit

process has the opportunity to resolve the conflict.”
“If the Congress, by appropriate formal action, had challenged the President’s authority to terminate the treaty with Taiwan, the resulting uncertainty could have serious consequences for our country. In that situation, it would be the duty of this Court to resolve the issue.”
Rehnquist- “I am of the view that the basic question presented by the petitioners in this case is ‘political’ and therefore nonjusticiable because it involves the authority of the President in the conduct of our country’s foreign relations and the extent to which the Senate or the Congress is authorized to negate the action of the President.”
Brennan Dissent- “The issue of decisionmaking authority must be resolved as a matter of constitutional law, not political discretion; accordingly, it falls within the competence of the courts”
Notes: When a fight breaks out against minority of congress and the executive, the judicial is hesitant to act, because it usurps the separation of power. Checks are already written into the Constitution.
–          deus ex nihilo- god out of nowhere saving the day (judiciary does not want to be that)
Seems like there are three strikes against this: not ripe, foreign affairs, and political in nature because of the two branches of government fighting. However, isn’t it the Supreme Court’s job to settle disputes between the two branches?
d)      Impeachment
Nixon v. U.S. (Rehnquist-1993)
Facts: Federal District Court Chief Judge, Walter Nixon, was convicted and sentenced to prison for committing perjury before a grand jury. The House adopted articles of impeachment against him and presented them to the Senate. Following the Senate Rule XI (allowing a committee of Senators to hear evidence against an impeached individual and to report the evidence to a full Senate) the Senate convicted Nixon, and entered a judgment to remove him from office. Plaintiff filed suit claiming Senate Rule XI prohibits the whole Senate from taking part in the evidentiary hearings, it violates the Constitution’s Impeachment Trial Clause Art. I. sec. 3. clause 6 which states that the “Senate shall have the sole power to try all Impeachments.” The DC held that his claim nonjusticiable (involved a political question that could not be resolved by the courts.)
Holding: Rehnquist – Judiciary may not review impeachment of a Federal Officer because the Constitution reserves that right for the Senate. Art. I. Sec. 3. states that the Senate has the ‘sole’ power to ‘try’ impeachments. Framers thought a Judicial Bench to small to justly try impeachments.
Also, Judical branch (being Federal Officers) are checked by impeachment proceedings (Separation of Powers Implied in Constitution)
Concurrence : there were circumstance in which they would no want to bar judicial review of proceedings to protect against arbitrary hearings. ‘Coin-toss’ scenario.
Significance: Retreated from more liberal interpretation under Warren Court