Constitutional Law
Bagenstos
Fall 2016
Introduction
Judicial Review: Establishment CB 25- 38 (Marbury)
Marbury v. Madison (1803): Marshal takes this opportunity to establish the principle of judicial review
This was very much contested – Jeffersonians not supportive, Hamiltonians (federalists) supportive
Four reasons for judicial review
Written constitution (Hamilton’s argument in Federalist 78)
Province and duty of judges – when proper case before the Court, the Court has to decide the constitutionality
This is why he has to erect the strong law v. politics position
Therefore, the Court’s decision should not extend to anyone other than the parties involved.
Specific constitutional provisions (makes no sense otherwise)
Bagenstos thinks this argument “cuts no ice”
Not clear why the Court should not defer to Congress; Court does not explain why it is the decider rather than whoever enacted the law
Supremacy Clause – constitution is the supreme law of the land
Oath – judicial oath, but legislators also take an oath so not that strong of an argument
The question that is live within constitutional system à what does judicial review mean?
Marshal court basically doesn’t use judicial review to invalidate a federal statute, but happens often to invalidate state laws
Implications of judicial review:
Idea that every public official has to make certain constitutional choices that may or may not be constrained by the court, but we expect to be guided by a sense of constitutional authority
Bound by rulings about constitutionality by the Supreme Court, not just the parties involved
As a practical matter, there are many cases in which we don’t all agree that the Supreme Court should decide
It is a matter of contestation – the people who are not compliant will be brought into Court
Applications: CB 38-48 (Martin)
Martin v. Hunter’s Lessee – take note of the power of the Supreme Court as the decider
In Martin, the Supreme Court issued a ruling, reversing the highest court in Virginia, and then that Court says “no. you have no authority” and claimed co-equal authority with the U.S. Supreme Court
The Supreme Court says “we decide, and everyone has to follow what we say”
Conflict between the two visions of what the power of the Supreme Court is in this case (do all the states get to decide for themselves what the Constitution means?)
Marshall thinks not, the Supreme Court is the decider (even though Justice Story writes the opinion, many people believe that Marshall was still involved in the opinion)
Modalities of Interpretation CB 48-69 (McCulloch)
District of Columbia v. Heller
Scalia writing opinion as a textualist opinion and defends textualism against Breyer’s free form
Says textualism constrains the Court
But then says that the right to bare arms is not without constraint
Breyer argues that he is being honest
McCulloch v. Maryland
Does Congress have the power to incorporate a bank? Yes, based on a broad reading of the “Necessary and Proper Clause” of the Constitution.
The 10th Amendment omits the word “expressly” (which was in the Articles of the Confederation): The powers not delegated to the U.S. by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
This is an important distinction because it suggests that the power to charter the bank does not need to expressly mentioned in the Constitution
There are other powers in Article 1, section 8 (the power to tax, regulate commerce, etc.), that imply the power to charter a bank
This section mentions that Congress can punish counterfeiting and piracy but it doesn’t make sense if Congress can’t punish things that violate its power to tax, regulate commerce, etc.
This is the Necessary and Proper Clause
Compare 10th Amendment to article 1, section 10, which says what States cannot do. There the language uses the term “absolutely necessary,” which is omitted in the 10th
ho are not constituents of the taxer which is not ok
But then why can’t Congress make clear that this taxation is illegal, why must it be the Court that makes this determination?
(Judicial) Precedent
In the Marshall court, doesn’t rely on much precedent. Purely architectural moment.
In a lot of Marshall decisions, he takes the law from England
Calder v. Bull (1798) – Connecticut legislature ordered a new trial in a will contest, setting aside a judicial decree
The Court unanimously held that the legislature’s action was not an “ex post facto Law” forbidden the states by article 1, section 10
Justice Chase v. Justice Iredell:
Chase: natural law limits the government
Iredell: natural law too vague, must be constrained by the Constitution
Justice Iredell: No one knows what natural rights are, and without it being explicitly defined in Congress, it should be up to the legislature
The precursor to Bickell and Scalia
Think back to Marbury v. Madison: The Court must determine what the written Constitution means
Justice Chase goes further – there is an “unwritten” Constitution, consisting of principles of national law, which is enforceable as against the states even though it cannot be found in the Constitution
Does the 9th Amendment provide a textual grounding for the enforcement of national rights that are not, themselves, enumerated in the text?
The people had natural rights before the formation of the government. They have retained those rights, and those rights should be treated in the same manner as those (natural) rights enumerated in the Bill of Rights
