Select Page

Constitutional Law I
University of Connecticut School of Law
Becker, Loftus E.

Constitutional Law
UCONN Law
Prof. Becker
Wechsler and Amsterdam
Wechsler’s central thesis is that courts should act on the basis of such neutral principles when the decision of a case is not settled by reference to the relevant text, history, and precedent.
Hand’s thesis to which Wechsler was responding:
Federal courts have the power of judicial review, but because it is not provided for in the constitutional text, the court should in less important cases refuse to exercise it and leave the question to resolution by other braches of government.
Wechsler believes that Brown and its progeny were decided without an adequate neutral principle, since the relevant precedent established no more than that state-sponsored racial segregation (with equal facilities) violated the EPC in context of public education, and the court failed to give any explanation for its expansion of the doctrine.
Wechsler argues that Brown should been decided on a neutral principle to extend to other cases of racial segregation.
Amsterdam
Lofty thinks that Amsterdam (kinda) disagrees with Wechsler, insofar as an important part of Wechsler’s position appears to be that courts always should defend their value choices on the basis of neutral principles, and that ventilation of disagreement is better than unified silence. Lofty thinks that Amsterdam takes this position on, directly, when he states that the Court “cannot always state openly all of the considerations that affect its decisions and he is not implying that the Court should have confronted basic 4th amendment issues in any systematic way, and questions whether the Court could have found a consensus or whether a consensus, if found, would have been worth the torment. At the same time, Lofty admits that Amsterdam’s argument in whole seems to grant Wechsler’s thesis as a general principle or ideal, and argues only that sometimes it is advisable or even necessary to depart from it.
Amsterdam – Court as a committee; practical approach.
Judicial Review
The Courts
Marbury v. Madison (1803)
Judiciary Act Section 13 assigns the right for SCOTUS to issue writs of mandamus to “any person holding office under the authority of the United States.”
Unconstitutional because Article III grants original jurisdiction in “all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the supreme court shall have appellate jurisdiction.”
BUT Marshall probably constructed Section 13 wrong – it actually gave appellate, not exclusive jurisdiction to the issue
Holding: If SCOTUS feels that an act of Congress is contrary to the constitution, they should not apply that act of Congress.
“The constitution, and not such ordinary

pared with Congress, there is nevertheless something in the nature of judicial review that makes it important to have principles and reasons for how we understand the constitution beyond framers-said-so.
Best justification for judicial review – Court has to determine the Constitutionality of an Act of Congress which is the basis for rights being asserted.
Cooper v. Aaron (1958)
Arkansas refused to comply with order requiring integration of Little Rock schools. District Court asked Eisenhower to interfere.
SCOTUS reaffirmed Marbury, recognizing as supreme law of the land
Judgment of a Federal Court issued against the State of Arkansas
Court says that “the States [are bound by] any thing in the constitution”
Takes the article VI quote out of context
And the JUDGES in every State shall be bound thereby, any Thing in the constitution or Laws of any State to the Contrary notwithstanding
Does not say that individual States are bound
Eakin v. Raub (1825) (PA case)
Gibson (dissenting) – follows from Marshall’s opinion in Marbury