Constitutional Law Main Outline
Table of Contents
Neomi Rao, Constitutional Law, Fall 2012, UMN Law
1. Broad Themes
a. Written Constitution
b. Supreme Law of Land
c. Entrenched.
i. Cannot be changed except by delineated and onerous amendment procedures.
d. Need for interpretation
i. Written nature and some latent ambiguity require interpretation
ii. Art II § 1 Presidential oath seems to require interp by Pres
e. Republicanism and Popular Sovereignty
i. Res publica; Art IV § 4
f. Methods of interpretation
i. Textualism
1. Original meaning, strict constructionist (meaning as understood at time)
ii. Structuralism
1. Often rather nuanced.
2. Relationship between textual components.
iii. Intent or purpose-based
1. More of a philosophical grounding
2. Original public meaning v. specific drafter meaning
iv. Precedent/traditional
1. Influence of common law principles
v. Precedent/traditional
1. Common law principles
2. Prior SCOTUS jurisprudence
vi. Pragmatic/flexible
1. Places greater weight on outcomes than other methods
g. Formalism v. functionalism
i. Formalism
1. May be thought of as the idea that there are certain rules in the Constitution
2. Therefore cases must be decided within this frameworks
3. These rules can be explicit or implicit
4. Connected with “rule of law”-type ideas
5. Constitution is a type of meta-rule that creates a structure that is formalistic
6. e.g., no headless “fourth branch”
a. Not in Constitution, can't be fairly inferred
7. Black in Youngstown
8. Textualism and structuralism may be thought of as formalistic methods of interpretation
ii. Functionalism
1. More about “how things work” and utilitarianism
2. More focused on political realities
3. E.g. Morrison opinion: does President have enough control over IC?
4. Not strictly the same thing as pragmatism, but there is overlap
a. Functionalism more concerned with how things will work in terms of the realistic application, while pragmatists will tend to look at results
5. Functionalism and formalism are not in and of themselves methods of interpretation
2. Judicial Review and Constitutional Interpretation
a. Federalist No. 78 [Hamilton] [p. 154]
i. Retention of judges in office during good behavior protections against encroachment from legislature
ii. In a government whose powers are separated, judiciary will be least dangerous branch
1. Judiciary has no influence on “sword or purse”
2. Union of judiciary with other branches cannot be permitted
iii. A limited Constitution requires an independent judiciary able to declare acts contrary to the “manifest tenor” of the Constitution void
iv. No legislative act contrary to the Constitution can be valid
1. To hold otherwise is to put the deputy above the principal
v. To allow the legislature supremacy of interpretation over other branches would allow it to substitute its will for the Constitution
vi. If judges are to be interpreters of the Constitution, their tenure in office should be protected
vii. Judges holding temporary office too subject to political pressures
viii. Permanency of judicial office also supported by complex nature of office and necessity of judges to become familiar with the law.
1. Few will be skilled enough to discharge duty.
b. Marbury v. Madison [p. 164]
i. Holding
1. The Court found that the appointment of Marbury by Adams could not legally be annulled by Jefferson. The appointment to office, once made, confers legal right on the appointee which cannot be derogated in this case except through impeachment proceedings. It is natural that Marbury be able to seek the protection of the law in asserting his right. Furthermore, the overriding of Marbury's legal right to the commission was more than just a political act by the executive. As an action implicated questions of legality, the Court has subject-matter jurisdiction over it.
2. The fact that Marbury had a protected term creates a non-derogable right to the commission. If Marbury did not have a protected [set, 5-year] term Jefferson would likely have been able to revoke commission.
a. Court found in later cases president has broad power to remove executive officers.
3. Appointment evidenced by commission.
4. However, problems arise with the mandamus writ sought by Marbury. Marbury brought the case to the Court under provisions of the Judicial Act that allow the Court to exercise original jurisdiction over cases in which such writs are sought. However, the US Constitution grants the Court original jurisdiction only in cases involving ambassadors, public ministers and consuls (of foreign governments), and suits in which a state is party. The Constitutional does not allow for original SCOTUS jurisdiction in this case and Marbury has therefore brought suit in the wrong forum.
5. Court could not provide writ of mandamus as it had appellate but not original jurisdiction. Case brought as original jurisdiction case.
ii. Principles
1. The reasoning in the case is the fundamental logic of judicial review of the constitutionality of executive and legislative action. The Constitution vests judicial power in the Supreme Court and the inferior courts it may create. A necessary component of this adjudicative power is legislative and statutory interpretation. In resolving conflicts in the law, the Court must turn to the more legitimate authority. In cases of straightforward statutory conflict, this may be the more recent statute.
2. Much of the reasoning of the Court turns on the role of the Constitution as the supreme law of the land. As the fundamental organizing conceit of the remaining corpus of the laws, it by necessity must take hierarchy over them. If the Constitution were not to be held to be superior to other law, the Constitution would be in effect a dead letter and the legislature would be unrestrained.
3. It is logical, given the duties of the Court, that it be able to review acts by the other branches of government to determine their accordance with the Constitution.
4. M v. M does not necessarily require judicial supremacy. Marbury was a
s the “preserver, protector, and defender” of the Constitution and will necessarily implicate interpretation. This is intensified in emergency situations.
g. Bank of the United States Controversy [Constitutional Interpretation]
i. Jefferson [p. 69]
1. Thought Bank unconstitutional. Restrictive reading of specifically enumerated powers. If power of incorporation (power implicated in Bank creation), would say it is not in power of national government.
2. Restrictive reading of Necessary and Proper Clause. If an action is not necessary for the carrying out of the law, it is out of bounds. A liberal construction of “necessary” would not appropriately limit the sphere of legislative action and anything could be tortured into slotting into the convenience of the legislature.
ii. Hamilton [p. 71]
1. Liberal reading of Necessary and Proper Clause. “Necessary” in the grammatical and popular sense means needful, requisite, incidental, useful or conductive to.
2. “Necessary” ought to be construed liberally in the advancement of the public good.
3. For departmental action: End should be clearly within scope of authority, and measure should have obvious relation to end and not be specifically prohibited by Constitution.
iii. Jackson Messaging Vetoing Bank [p. 76]
1. It is the duty of the coordinate branches to independently review the constitutionality of their actions.
2. There is not judicial supremacy.
3. It is for the coordinate branches to determine if something is Necessary and Proper.
3. Separation of Powers [pp. 196-199]
a. People sovereign.
b. Each branch possesses checks on the others and is in turn checked. No branch is superior and all derive their power to act equally by a constitutional grant of power from the sovereign people.
c. Congressional powers
i. Holds check on executive through power of the purse
ii. Can propose constitutional amendments
iii. Can hobble presidential administration through refusal to appoint
iv. Can hold oversight hearing of executive branch through committees
v. Can check judiciary by denying salary increases
vi. Can alter jurisdiction and remedial powers of lower courts
vii. Has some power over SCOTUS jurisdiction
viii. Can impeach and remove any executive and judicial officer
ix. Can overturn SCOTUS constriction of Constitution through amendment passage
