Constitutional Law I Outline

I.                   Role of The Judiciary
a.      AUTHORITY FOR JUDICIAL REVIEW
                                                              i.      It is unclear from the const. that judiciary should be supreme interpreter
                                                            ii.      Judicial Review is undemocratic & counter majoritarian (Rep. Reinforcement helps balance this)
                                                          iii.      Marbury v. Madison (1803) – The Judiciary is supreme in Const interpretation. (President Adams signed Marbury’s commission, but did not deliver, President Jefferson refused to deliver, Marbury asked Supr Ct to issue writ of mandamus to president)
1.      Marbury argued that Judiciary Act of 1789 allowed Supr Ct to issue the writ. Justice Marshall said that although Marbury’s right vested when his commission was signed, the Supr Ct could not issue a remedy b/c it did not have original jurisdiction over this case b/c the Sup Ct has only appellate jurisdiction à Act was unconstitutional (and struck it down). Said Marbury should have sued in lower cts and appealed.
2.      Marshall avoided a Constitutional Crisis by avoiding a showdown w/ Jefferson and grabbed the power of interpreting the Const by striking down a law of congress!
3.      “It is the province of judges to decide what the law is . . . .”
b.      Arguments For Constitutional Supremacy
                                                              i.      Constitution is supreme law of land (uncontested) – says nothing about judicial rvw
                                                            ii.      Principles established in Const. are fundamental, and designed to be permanent.
                                                          iii.      Judge’s oath to uphold the Constitution
                                                          iv.      Congress has power to alter constitution, so they should be supreme arbiter here. But this can cut the other way (if congress could change const. by mere legislation, then its not really a constitution)
                                                            v.      Const. says Sup Ct has mostly appellate jurisdiction, and less original (so cant hear case like Marbury!)
c.       Arguments For Judicial Supremacy 
                                                              i.      Implied enforcement of constitution/greater adherence to it
                                                            ii.      Judge’s duty – to declare the meaning of the law (ie. This is what judges do!)
                                                          iii.      Necessary to make system of checks & balances work
                                                          iv.      Ct has jurisdiction over cases “arising under” the Const., and so must interpret it. But this arg can cut the other way too (Ct can only decide cases arising under, not change Const).
d.      Enforcement Problem for Judiciary – the court needs the executive branch to enforce it’s rulings (Court + Executive Branch = makes decision happen) [Worcester v. Georgia]                                                               i.      Adherence to the power of the Sup Ct is voluntary
                                                            ii.      The power is dependent on our willingness to do what the Ct says.
                                                           iii.      Worcester v. Georgia (1832) – GA law conflicted w/ federal treaties and Const., GA tried to regulate who could go onto Cherokee land). Ct struck down the GA law, but Prez.Jackson refused to enforce the Ct’s will. (Note: Sup Ct has auth to regulate laws of the states that are repugnant to the const., but subject to exec willingness to enforce)
1.      Not in conflict with Marbury…in Marbury, Marshall never addresses the conflict directly at all (he was aware of it)…so here, when the conflict actually occurs, it is not in opposition with the point of the Marbury ruling
                                                          iv.      Cooper v. Aaron – Arkansas failed to comply w/a district court order requiring desegregation…
1.      Note that the declaration in this case the Supreme Court is “supreme” would have been outrageous in the time of Marshall’s original Marbury decision (Such grandiose assertions of power would have been a joke in the developmental stages of a government)
2.      This case demonstrates how much the Court and his power have grown over time in our society
                                                            v.      U.S. v. Nixon (1974) – Court orders President to turn over tapes. President does not have to comply…he can say “make me.” B/C President is commander and chief, he holds all the enforcement power. Nixon agrees to go along, but this was tense time, and a potential huge constitutional crisis…
1.      While the court rejects Nixon’s claim to an absolute executive privilege, there might be a need for it in cases of diplomacy, national security, etc…
2.      Sup Ct has ultimate Power of Rvw, but there is ultimate Exec Privilege
3.      Despite “ultimate” Exec Privilege, ct has the ability to put Prez in a const. “choke-hold”
 
e.       SOURCES OF CONSTITUTIONAL INTERPRETATION
                                                              i.      McCulloch v. Maryland (1819) – MD tries to tax U.S. bank; bank sues
1.      There are IMPLIED POWERS in the “Necessary & Proper Clause” (Art I, § 8 [18]); Congress has the power & discretion to choose the means to perform the duties imposed on it.
2.      So, Congress has power to create a bank, & State’s can’t tax US govt.
                                                            ii.      Arguments for Implied Powers:
1.      Structural Arg: “necessary and proper” clause is in § 8, where powers are granted to Congress, not § 9, where restrictions on Congress’ power are.
2.      Textual Arg/Framer’s Intent Arg: “Necessary and proper” does not mean “absolutely” necessary. Framers knew how to say “absolutely” (it says that elsewhere in the Const.) but did not, so did not intend that.
3.      Logical Arg: “It is a Const we are expounding,” not a statute, which would be strictly construed. Const lays out the skeleton of govt and it must be fleshed out.
4.      Power Arg: Congress has power to create nat’l bank b/c the People, not the States are the source of the federal govt’s power (this is a counterarg to MD’s arg that States are source of fed govt pwr, and know what they did and did not cede).
                                                          iii.      Arguments for Rule that State’s can’t tax the US govt.
1.       Supremacy Clause: Congress trumps. Servant can’t tax the master.
2.      Representation Reinforcement – Idea that Supreme Court Intervention is justified for the purpose of fixing defects/flaws in the political process
a.       The people burdened by the legislation can hold the legislators accountable (ie. Vote them out); if state taxed national voters, no one can hold them accountable
b.      Bank of U.S./Fed tax-payers can’t vote in MD, so there is no political check and, thus, there is a flaw in the political process. Ct. must guard against flaws in the democratic process.
3.      Problems w/ Rep. Reinforcement
a.       Limits – (1) We can have a wonderfully functioning democracy that yields some great results (See; woman’s right to vote…etc…); (2) If everyone decides something (i.e. the political process works {The majority agrees}, the Supreme Court can not intervene)
b.       What is a flaw in the political process? – It is whatever the court decides is enough of a flaw that it inhibits the political process [“Nicky was rat ‘cuz Sonny Black said Nicky was a rat”] – EX: Arme