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Constitutional Law I
University of Dayton School of Law
Greene, Dennis

         I. The Federal Judicial Power. 
In reading the Constitution, there are many inherent tensions in all the checks and balances. One fundamental inherent tension in the Constitution is the idea of a set of different priorities and how those priorities and tensions manifested themselves over the following years. One tension was a worry over tyranny, nobility, and dictatorial kings. There was a desire for freedom generally, but also freedom to make a living. The rights weren’t just to feel free, but to earn money freely.  Another tension is that between the states and the federal government. The south in particular were very protective of state’s rights. There’s an inherent tension there that plays out leading to the Civil War which was a war over states rights. The southern states wanted to be free of England, but they needed the cooperation of the north to achieve that. There’s also a tension between originalists and non-originalists. Is the Constitution a living document, or is the original intent the key to interpretation? Another tension is the freedom of individuals v. the rest of society. All these tensions in the Constitution are still playing out today. Be aware of these inherent tensions in our society and Constitution.
        A.        The Authority for Judicial Review. The Constitution is silent as to whether the Supreme Court and other federal courts have the authority to engage in judicial review of congressional and executive actions. (In England, no court has the authority to invalidate an act of Parliament.) Marbury v. Madison in 1803 establishes the authority for judicial review of both the federal executive and legislative acts. 
1.          Marbury v. Madison (1803) (Political fight between Adams and C.J. Marshall, and Jefferson). 
Federal courts have authority to review acts of congress and the executive branch and to invalidate acts that violate the Constitution.
Where the Constitution, as interpreted by the Supreme Court, conflicts with the laws or actions of the other branches of government, the Supreme Court may declare such laws or actions unconstitutional and invalid.
A mere political act belongs to the executive department alone, the performance of which, entire confidence is placed by our constitution in the supreme executive; and any misconduct respecting which, the injured individual has no remedy.
The same is true with agents of the executive where they act by the will of the President – “The acts of such an officer, as an officer, can never be examinable by the courts.” However, “But when the legislature proceeds to impose on that officer other duties; when he is directed peremptorily to perform certain acts; when the rights of individuals are dependent on the performance of those acts; he is so far the officer of the law; is amenable to the laws for his conduct; and cannot at his discretion sport away the vested rights of others.
It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such a construction is inadmissible, unless the words require it.
An act of the legislature, repugnant to the constitution, is void.
It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.
If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.
Article III. SECTION. 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
SECTION. 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; – to all Cases affecting Ambassadors, other public Ministers and Consuls; – to all Cases of admiralty and maritime Jurisdiction; – to Controversies to which the United States shall be a Party; – to Controversies between two or more States; – [between a State and Citizens of another State;-]* between Citizens of different States, – between Citizens of the same State claiming Lands under Grants of different States, [and between a State, or the Citizens thereof;- and foreign States, Citizens or Subjects.] In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The Trial of all Crimes, except in Cases of Impeachment; shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
SECTION. 3. Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
2.          Notes on Marbury v. Madison. Marbury v. Madison establishes a number of key propositions that continue to this day. First, it creates the authority for judicial review of executive actions. The Court draws a distinction between areas in which there are individual rights, and therefore government duties and those in which the executive has discretion as how to act. In the latter, the Court says that only the political process is the check on the executive branch.
Second, Marbury establishes that Article III is the ceiling of federal court jurisdiction. The precise holding is that Congress cannot expand the original jurisdiction of the Supreme Court. More generally, Marbury stands for the proposition that Article III authorizes the maximum jurisdiction of the federal courts. As a result, Congress cannot authorize federal courts to hear cases beyond what is specified in Article III, and federal courts cannot gain jurisdiction by consent.
Third, Marbury establishes the authority for judicial review of legislative acts. This, of course, is what Marbury v. Madison is most renowned for establishing. Marbury does this by provision of a federal law, the Judiciary Act of 1789, which the Court interprets as authorizing the Supreme Court to exercise mandamus on original jurisdiction.
Chief Justice John Marshall established judicial review while declaring unconstitutional a statute that he read as expanding the Court’s powers. Politically Marshall had no choice but to deny Marbury relief; the Jefferson administration surely would have refused to comply with a court order to deliver the commission. John Marshall did more than simply rule in favor of the Jefferson administration; he used the occasion of deciding the case to establish the power of the judiciary and to articulate a role for the federal courts that survives to this day. 
In Cooper v. Aaron, 358 U.S. 1 (1958), the Court emphatically declared: Article VI of the Constitution makes the Constitution ‘the supreme Law of the Land.’ . . . Marbury v. Madison . . . declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. . . . Every state legislator and executive and judicial officer is solemnly committed by oath. . . ‘to support this Constitution.”
Marbury v. Madison thus provides the foundation for American constitutional law by establishing the authority for judicial review of executive and legislative acts. 
Marbury. Originally, the Supreme Court was viewed as a powerless backwater, but Chief Justice John Marshall turned that around. Marshall transformed the court and sought to turn it into a dynamic and powerful institution. This case grew out of a vicious partisan political fight. Marbury wanted his commission so he filed a writ of mandamus to force the new Secretary of State to deliver his commission. C.J. Marshall sets out three issues: (1) is there a right; (2) has that right been violated; (3) Is the Supreme Court and a mandamus the proper remedy? Issue 1 and 2 are pretty straight forward and are both answered, yes – there is a right and it has been violated. However, it’s on issue 3 where Marshall gets tricky. Marshall says that no one, even the President, is NOT above the law. This was an in-your-face challenge to Jefferson. Marshall asserts that the Constitution is the supreme law of the land and it and the rest of the laws of the land are to be interpreted by the Supreme Court. Marshall gives himself in his new job an interpretive right of the Constitution, something that the Constitution itself doesn’t give. Marshall also says that the Judiciary Act of 1789 is unconstitutional, or at least a part of it. He says that the Constitution sets the upper limits of what the Supreme Court and judiciary can do, so the Congress can’t go beyond what the Constitution says. Even though Jefferson won because Marbury was denied his relief, Marshall took a big piece of power at the same time. The Dred Scott decision is the next big case that overturns a Congressionally created law.
3.          Authority for Judicial Review of State Judgments. Marbury v. Madison establishes only the authority for judicial review of federal executive and legislative actions. The authority for judicial review of state court decisions was established in two decisions early in the nineteenth century: Martin v. Hunter’s Lessee and Cohens v. Virginia.
4.          Martin v. Hunter’s Lessee 14 U.S. (1 Wheat.) 304 (1816) (Virginia says that the Supreme Court doesn’t have jurisdiction over their courts decisions).
The structure of the Constitution presumes that the Supreme Court may review state court decisions.
Justice Story observed that Supreme Court review is essential to ensure uniformity in the interpretation of federal law. 
Martin v. Hunter’s Lessee. Here the state of Virginia is saying they have the exclusive power to deal with their own internal land, but the Supreme Court disagrees on the basis that the federal treaty controls and that the state can’t override the federal treaty. This is based on the Supremacy Clause.
5.          Cohens v. Virginia 19 U.S. (6 Wheat.) 264 (1821) (Criminal defendant’s can appeal to the Supreme Court for Constitution protection).
Criminal defendants can seek Supreme Court review when they claim their conviction violates the Constitution.
The Supreme Court, in an opinion by Chief Justice John Marshall, reaffirmed the constitutionality of § 25 of the Judiciary Act and the authority of the Supreme Court to review state court judgments.
The Court emphasized that state courts often could not be trusted to adequately protect federal rights because “[i] n many States the judges are dependent for office and for salary on the will of the legislature.”
Cohens v. Virginia. Here there was a criminal case and the defendant’s were looking to the Supreme Court to reverse their convictions. Virginia argued that the Supreme Court didn’t have such power, but the Supreme Court does have the power under a part of the Judiciary Act of 1789 to review state criminal convictions. The Court declared it a local matter though and that their convictions were upheld.
        B.        Limits on the Federal Judicial Power. The judicial power to say what the law is gives to unelected federal judges great authority. There thus has been an ongoing, unresolved debate over how this power is constrained and whether the limits on judicial authority are sufficient. Three primary limits on judicial authority exist: interpretive limits; congressional limits; and justiciability limits. Interpretive limitsraise the question of how the Constitution should be interpreted; some approaches seek to greatly narrow the judicial power, while others accord judges broad latitude in deciding the meaning of the Constitution. Congressional limitsrefer to the ability of Congress to restrict federal court jurisdiction. Justiciability limitsrefer to a series of judicially created doctrines that limit types of matters that federal courts can decide.
1.          Interpretive Limits. How should the Court interpret the broad language of the Constitution? What weight should be given to the text, to the framers’ intent, to the practices at the time the constitutional provision was adopted, to tradition, to social policy needs? Some believe that it is essential that the Court’s discretion in interpreting the Constitution be narrowly circumscribed to limit the judicial power. They argue that democracy means rule by electorally accountable officials and that judicial review by unelected federal judges is inconsistent with this. This is often called originalism. Originalism is the view that “judges deciding constitutional issues should confine themselves to enforcing norms that are stated or clearly implicit in the written Constitution.”  Originalists believe that the Court should find a right to exist in the Constitution only if it is expressly stated in the text or was clearly intended by its framers.  If the Constitution is silent, originalists say it is for the legislature, unconstrained by the courts, to decide the law. Originalists believe that the Constitution should evolve solely by amendment. 
Non-originalists argue that it is important that the Constitution evolve by interpretation and not only by amendment. Non-originalism is the “view that courts should go beyond that set of references and enforce norms that cannot be discovered within the four corn

urisdiction to change the substantive law. In large part, the debate centers on two major constitutional issues: what does the language of Article II mean when it says that Supreme Court jurisdiction exists subject to such “exceptions and regulations” as Congress shall make? Does separation of powers limit the ability of Congress to restrict Supreme Court jurisdiction?
        II.       The Federal Legislative Power.
        A.        Introduction: Congress and the States. A basic principle of American government is that Congress may act only if there is express or implied authority in the Constitution, whereas states may act unless the Constitution prohibits the action. Article I of the Constitution, which creates the federal legislative power, begins by stating: “All legislative powers herein granted shall be vested in the Congress of the United States which shall consist of a Senate and House of Representatives.” Additionally, the Tenth Amendment declares: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In evaluating the constitutionality of any act of Congress, there are always two questions. First, does Congress have the authority under the Constitution to legislate? This requires defining the scope of the powers granted to Congress, particularly in Article I, § 8 of the Constitution. Second, if so, does the law violate another constitutional provisions or doctrine? In answering both of these questions the issue has arisen throughout American history as to the extent to which concern for state governments and their prerogatives should matter. During some eras of constitutional history concern for state governments has profoundly answered how the Court has dealt with both of these questions. The Court has used the Tenth Amendment as the basis for this protection of state governments from federal encroachment. During other times of American history the Court has refused to use concern over state governments either as a basis for narrowly interpreting the scope of Congress’s powers or as a limit through the Tenth Amendment on the reach of federal legislation. In other words, throughout American history, Congress’s powers have been defined relative to the states. McCulloch v. Maryland, was an enormously important case concerning the relationship between federal and state governments. 
1.          The Framework for Analysis: McCulloch v. Maryland. McCulloch is the most important Supreme Court decision in American history defining the scope of Congress’s powersand delineating the relationship between the federal government and the states. The issue in McCulloch is whether it is constitutional for the State of Maryland to tax the Bank of the United States. After the Bank of the United States was recreated in 1816 several states adopted laws designed to limit the operation of the bank. Others, such as Maryland, taxed it. The trial court rendered judgment in favor of the plaintiffs, the State of Maryland, and the Maryland Court of Appeals affirmed.
2.          McCulloch v. Maryland (1819) (Marshall decides whether states can tax the Bank of the United States).
The necessary and proper clause allows for a federal bank which is immune from state controls.
Under the Necessary and Proper Clause, Congress may enact legislation so long as its ends are legitimate under the Constitution and the legislation is appropriate and plainly adapted to those ends. 
The government of the Union, then is, emphatically and truly, a government of the people. In form, and in substance, it emanates from them [and not from the States.] Its powers are granted by them, and are to be exercised directly on them, and for their benefit.
This government is acknowledged by all, to be one of enumerated powers [but implied powers are part of the Constitution as well].
The government of the United States, then, though limited in its powers, is supreme; and its laws, when made in pursuance of the constitution, form the supreme law of the land, “anything in the constitution or laws of any state to the contrary notwithstanding.”
This great principle is, that the constitution and the laws made in pursuance thereof are supreme; that they control the constitution and laws of the respective states, and cannot be controlled by them.
The sovereignty of a state does not extend to those means which are employed by congress to carry into execution powers conferred on that body by the people of the United States.
The states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by congress to carry into execution the powers vested in the general government.
McCulloch v. Maryland. Article 1, § 8 is the Commerce Clause of the Constitution. Article I, § 8, cl. 18 is the “necessary and proper” clause. That section all goes to Congresses powers, which are enumerated powers. The Tenth Amendment says “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  Article 1 is enumerated powers, whereas the Tenth Amendment is more broad. What do we do for powers that are not enumerated? Are they Constitutional? The Bank of the United States goes to the controversy over federalism and state’s rights.
The controversy in McCulloch was about state’s rights vs. the powers of the federal government. The Federalists were in favor of the Bank since that increased the power of the federal government. The issue is the legitimacy of the Bank and whether Maryland, and other states, can tax the Bank. Marshall says that the power to tax is the power to destroy, so if you give Maryland the p