General: All Questions in Con Law deal with:
1. Substance – What is the rule?
2. Method – How do you determine what the rule is?
3. Authority – Who gets to decide what the rule is?
I. “The Great Case” & Our Constitutional Tradition
Marbury v. Madison (US S.Ct. – 1803)
Facts: A commission for a Justice of the Peace position was made out in Marbury’s name. It was signed by the outgoing president (Adams) & sealed by the outgoing Secretary of State (John Marshall), but not delivered. The new president (Jefferson) ordered his Secretary Of State (Madison) to not deliver the commission.
Procedure: Plaintiff sued Defendant in the Supreme Court asking for a writ of mandamus to be issued forcing delivery of the commission.
Issues: 1. Does Marbury have a right to this commission?
2. If so, is there a remedy to realize this right?
3. Is so, can the S. Ct. issue that remedy?
Holding: 1. Yes- once signed & sealed. It is then Marbury’s property, a vested right
(fully realized, not inchoate). Yet in property law a deed doesn’t vest until
delivered).
2. Yes – a writ of mandamus.
3. No – S. Ct. does not have original jurisdiction. The Judiciary Act allows this
writ, but the Constitution doesn’t. Judiciary Act is thus void.
Reasoning: The Judiciary must determine what the law is, as listed by Article 3 of the Constitution. If a law is in conflict with the Constitution it is not law. The Judiciary Act of 1789 is in conflict with Article 3 because it grants the S.Ct. original jurisdiction in cases where Article 3 grants only appellate jurisdiction. Thus, that part of the Act is invalid.
Outcome: Case dismissed for lack of jurisdiction.
Notes: This firmly established the already-existing idea of Judicial Review, which limited what the executive & legislative branches could do. Those branches (both controlled by Republicans) were put in no position to complain as they “won” the case.
Marshall on Judicial Review:
– An act repugnant to the Constitution is void
– Constitution says it is the province of the judiciary to say what the law is
– All depts. Are bound by the Constitution
– To not allow judicial review leads to differing interpretations at the same time.
Views of the holding in Marbury v. Madison:
1. Strong – Supreme Ct. decides what the law is
2. Moderate – Each branch must determine the Constitution for itself (Jefferson)
3. Weak – This case deals only with the concept of the court’s jurisdiction.
* * * * *
Alexander Hamilton, Federalist Paper #78 (pg. 34-5)
– No legislative act is valid if it is contrary to the constitution because the people are superior to their representatives.
– Courts are designed to be an intermediary between the people & the legislature (to keep them within their authority, among other things).
– Interpretation of the law is the court’s right
– This doesn’t mean the judicial branch is superior to the legislative, only that the will of the people is superior to both
– But courts cannot substitute their will over legislative acts that are constitutional
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– Federal judges with tenure – Does this make judicial review “countermajoritarian”?
Conceptions About Constitutional Interpretation
1. Democracy, Constitutions & “Mechanical” Interpretation
– US v Butler (1936) – Judicial review is simply deciding whether an act of
Congress violates a decision of the ratifiers of the Constitution.
– Reflects A. Hamilton’s distinction between the “will” (based in politics) &
“judgment” (the province of the courts)
Problems with this view:
1. Should we be beholden to the will of people from over 200 years ago?
2. Should interpretation be carried out by judges rather than elected officials? Are
they better at it due to their insulation from political pressures?
Ackerman – The Court is not countermajoritarian. It reflects the majority that
Drafted the Constitution. Judicial review is the morally highest kind of politics,
But…
Brest – The framers were also concerned with self-interest & people will always
Be influenced by self-interest.
Thayer – Aggressive judicial review hurts normal politics. People turn the
Subject over to the courts & assume that if something is constitutional then it is
Morally OK. Thus, people don’t work out the issues
dicial power.
Legislative (regulate commerce, “all legislative powers herein granted”) = some legislative powers.
Article 5 – Entrenched clauses: Things that can’t be changed (Art 1, Sect 9 – slavery until 1808; 2 senators per state)
Intro: History of the Constitution – 1781 – Articles of Confederation ratified; 1787 –
Constitution written; 1789 – Constitution ratified.
Views of the Constitution:
1. Framers were intellectual giants who could rise above squabbles.
2. Constitution is a series of ad hoc compromises.
3. A product of aristocratic conservatives to protect private property.
– Articles of Confederation were created to ensure unity of foreign and domestic problems, but understanding that the states were sovereign.
Problems with the Articles – No power to tax, regulate commerce, no executive, no national judiciary, retaliatory trade measures which restricted interstate trade. Shay’s rebellion – no central army. Revisionist view – problems were faced primarily by commercial interests.
-Group created to amend Articles, but went farther. Constitution “fixed” many of the above problems.
Anti-Federalists – Believed in decentralization. Many felt that decisions should be made in small communities. Commerce as a threat because it gave rise to avarice & not to communal thought. Felt that the Constitution was inconsistent with the principles of republicanism because it removed people from the political process & created a powerful, remote government with a new emphasis on commerce.
Federalist #10 (Madison) :
– Union tends to control factions.
– Causes of faction can’t be removed, as they are a natural product of liberty. So, let’s control its effects.
– Small societies can’t control factions
