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Constitutional Law I
University of Mississippi School of Law
Nowlin, Jack Wade

to “constitute”: to comprise, make up, form, establish
U.S. Constitution: constitutes the framework of the fed gov (does not const the nationhood)
Declaration of Independence: taxation w/out representation. A constitutional doc in the sense that it constitutes the US as a nation, predating the constitution as a political community. Constitutes our nationhood and is the basis of national sovereignty (life, lib, pursuit of happiness)
State constitutions: constitute the indiv state govss. 
The Gov:
Foundation of gov: the People. Popular sovereignty. “We the people.” Preamble.
Purpose: (not stated but) protect Natural (Human) Rights, along w/ life, lib, pursuit of happiness (peace and prosperity along w/ justice).
Form: “Republican”
1.       Representative Democracy: a corollary of the sovereign (the people).
§         Purpose: prevent a tyrannical gov.
2.       Balance:
§         Separation of Powers: divide, diffuse, and balance gov poli pwr into 3 branches
§         Federalism: diffusion of power b/n nat’l gov and the states
·         Art VII—ratification of Const
·         Art V—Amendment process
§         Bicameralism: 2 legis chambers (Senate and House)
3.       Limits:
§         Judicial Review: power of SCt to invalidate legis it feels is in conflict w/ the Const.
Ultimate guarantee/security: of the protection of natural rights and our sys of gov is “the Civic virtue of the people”. 
Tocqueville’s “Democracy in America”:
Idea: Lawyer’s have a special right and special influence in this democracy/gov/const.
How: Judges and lawyers by exercising the law through interpreting the Const, have particular influence over life (almost an aristocracy).
Why: The Const is the foundation for all other law. Lawyer’s must interpret the law in practice…they have the most knowledge on the issue and in order to serve as good citz, they have a special duty to treat the Const w/ reverence and respect. 
A.        The Basic FRAMEWORK
Def: power of ct to invalidate a law b/c its unconstitutional.
Texas v. Johnson: SCt declares offensive flag burning TX stat unconst and says ∆ cannot be criminally prosecuting for violating statute. = contemporary ex of SCt judicial review and power over states.
Pros of Judicial Review:
·         Separation of Powers: part of the form of our gov. Another constitutional check to balance and diffuse power.
·         Popular Sovereignty: Simply enforcing the Constitution (e.g. 1st Amendment), which was ratified by the people. [Can also argue bad interpretation.] ·         Representative: this is a technical question, one which only legal scholars are qualified to answer
·         Ultimate Guarantee: SCt teaches us about what the Const means. They engage us as citizens in constitutional issues.
·         Uniformity of the law over the states
·         Protection of poli minorities
·         Protection of Constitutional rights: through Const remedies
·         Consistency
Cons of Judicial Review:
·         Popular Sovereignty: can argue it’s a bad interpretation of the (people) ratified Constitution.
                                                                           i.      Federalism undermined: by ct forming it’s own interpretation
                                                                          ii.      SCt decisions may violate the structure of the Const
·         Balance and diffuse: Acts as a centralization of power—the exact opposite of what we desire as a nation. I.e., there should be no enforcement power by the SCt
·         Ultimate Guarantee: Might wind up as citz saying don’t bother me w/ const issues. That’s a job for the SCt, not for citz…or even representatives, etc. 
·         Judicial review is NOT in Art III expressly. Might be there impliedly in 1st sentence. “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. 
·         See Marbury v. Madison
Marbury v. Madison (1803):
Facts: Appointment as Justice of Peace is signed and sealed but not delivered.  Marbury tries to go directly to SCt to enforce his appointment. Believes SCt has orig jurisd under the Judiciary Act of 1789. Π sought a writ of mandamus compelling Jerfferson’s Secretary of State (James Madison–∆) to deliver their commissions. 
                                                                           i.      Does the Π have a right?
                                                                          ii.      Has the right been violated?
                                                                        iii.      Does the ct have orig jurisd (i.e. is writ of mandamus the appropriate remedy)?
Hold: Marshall says NO orig jurisd. Says SCt needs enabling legis, whose constitutional basis is derived from Art III, §2. Orig jurisd fails to conform to Art III (not on the list); thus, Marshall declares this section of the Judiciary Act unconstitutional. The Constitution is paramount and it is the duty of the judicial dept to say what the law is (not the legis). Hence, judicial review.
Jefferson’s arg: Congress is a co-equal branch of gov and also read Art III and interpreted it differently. Basically, Marshall made up the unconstitutionality of the writ under Art III. Says Congress could say that the exception in Art III allows for orig jurisd. Could arg Marshall wrong in interpreting the statute.
Marshall’s “unconst” args: Marshall uses structure (S/P) and text (art III, Jud Act, Supremacy Clause) to interpret the Const. Could have used original understanding by citing Hamilton’s Federalist No. 78, which says JR exists.
“It is the province of the judiciary to say what the law is.”
1.       Constitutional Supremacy***: Art VI, §2: “supreme law of the land.” Ratified by the people. Thus, in conflict…Const wins/rules.
2.       Art III***: judicial power to all cases “arising under” the laws fo the US (including Judicial Act and Art III…2 conflicting fed laws). Thus, SCt can hear cases through orig jurisd or appellate jurisd.
3.       Judicial function (S/P): duty for judicial branch to interpret the law (say what the law is)—given through the Separation of Powers. Ct protects the const in times of conflict…NOT job for legis. I.e., Congress is influenced by the majority and a key function of the Const is to protect the minority. With judges impartially appointed for life, they are best suited for this function. 
4.       Written Const: written b/c we intend for it to govern our affairs. Const says it is supreme.
5.       Judges Oath: Judges take oath to uphold the Const. Not declaring conflicting law unconstitutional would violate oath of office. 
Criticisms of Marbury:
1.       Supremacy: Clause does not necessitate judicial review. Ex: Fed statutes are not considered supreme law of land, even though they are federally created. ???
2.       Art III: vague language; power would have been explicitly written
3.       S/P***: It “really” suggests that interpretation of Const should be distributed b/n all branches of the US, not just judiciary. Thus, it suggests some other, more limited authority to judicial branch.
4.       Oaths: Many public officers take oaths. That means little. 
                                Nowlin on Marbury:
·         Marshall goes out of his way to find a conflict b/n the law and the const in order to estab precedent by establishing judicial review. 
·         There is nothing Jefferson can do but gnash his teeth to defy the ct. 
KEY ?: Which branch of gov shall have the final say in interpreting the Constitution when a statute and the Constitution conflict?
Answer: The Supreme Court has the power of judicial review—the power to declare laws unconst when in conflict w/ the Const.
Most people say Marbury not only declares judicial review, but also judicial supremacy. Not clear if it does. 
Def: SCt has judicial supremacy if interpretation rests solely in judicial branch. I.e., SCt has sole and final power to interpret the constitution. 
Martin v. Hunter’s Lessee (1816):
Conflict b/n VA statute and a Federal treaty. Federalism issue.
RULE: SCt has appellate jurisdiction over state court decisions. The US SCt has jurisdiction over issues of federal law in state court.
·         National uniformity—const means same thing in all states.
·         Systematic state judicial bias against federal power
·         State abuse of power
·         Forum shopping as a result of home state bias
Counter-args: B/c of federal appellate power,
·         State supreme cts are weakened
·         Encroachment on state sovereignty
·         Federal judicial bias
Diff b/n Martin and Marbury:
                                Martin: about SCt’s pwr over the states
                                Marbury: about SCt’s pwr over president and Congress
Nowlin’s History of State Const interpretation:
·         Nullification: asserted pwr of state legis to nullify a law it things unconst. 1700-1800’s.
·         Interposition: state legis interposes its political authority to prevent a tyrannical gov.
·         Pre-Civil War: Ideas appealing right after Decl of Ind, when states are viewed as friendly, not tyrannical.
·         Post Civil War: Idea dies w/ Civil War. State pwr no longer asserted to invalidate Fed law. Now want a stable gov; thus, Const must mean same thing everywhere. 
·         Policy: Idea died for lack of uniformity + distrust of state interpretation over fed interpretation after Civil War, where states no loner viewed as friendly.
Nowlin’s Take on Federal Const interpretation: “Mere” Judicial Review?
·         Judicial Supremacy: Marbury suggests SCt has JS, more than “mere” JR. Federalist idea.
·         Legislative Supremacy: Marbury would clearly be inconsistent w/ this.
·         Executive Supremacy:
·         Departmentalism: Co-ordinate review. All 3 branches have compartmentalized review. No one branch defers to the other branch. Judicial does JR. Congress does LR. Pres does ER. Idea has some supporters. [Lost support in about 1900.]  
                                                Pro-JS/JE/JR under Marbury:
·         S/P: Judicial duty to say what law is, not legis or Pres’s
·         Art III: “arising under”
Thus, Marshall args supreme/near exclusive interpretation.
Anti-JS; Pro-Departmentalism (Jeff args):
·         S/P: above is misinterpretation. S/P means interpretation shared equally b/n 3 “equal” branches of nat’l gov. Otherwise, imbalance.
·         Art III: “arising under” does NOT give exclusive power. Exclusive power would have been exclusively written. Therefore, pwr does not exist. 
                                                Modern take on Judicial Supremacy: accepted. NOT departmentalism.
Cooper v. Aaron (1958): 1st time ct says we believe Marbury stands for JS.
McCulloch v Maryland (1819): “By this tribunal ALONE can the decision be made. On the SCt of the US has the Constitution of our country devolved this imp* duty.” Statement based on Art III and S/P args. 1st judicial supremacy statement. 
B.        The SOURCES of Judicial Decisions: “Text, ‘Representation—Reinforcement, and Natural Law
McCulloch v. Maryland ???
1.       Text: consistent w/ the letter and spirit of the constitution. 
2.       Original Intent or Understanding
3.       Judicial Precedent
4.       Structure: use structural logic
5.       Legal Traditions
6.       Social Consensus: current values
7.       Natural Law: policy args; moral philosophy (a.k.a. human rights or objective morality)
8.       [Prudence/Practicality]  
2.         NATURAL LAW
Def: certain rights are fundamental/natural rights which derived not from any Const or legal sys but simply from the nature of things. 
Calder v. Bull (1798):
Natural law in Const Interpretation: differing views
Justice Chase: Certain things that violate natural law are void within themselves. Nat law doesn’t have to be written down in Const to be valid or declared unconst/void. Compares NL w/ ex of Locke’s S

check by Congress, particularly if we accept JS. 
Plenary Counter: If exceptions swallow the rule, they are no longer exceptions.
Today: Not resolved. Most recent case Felker (1996). Dicta suggesting that Congress has never pulled all aves of appeal. 
                Justiciability: subject to resolution by a court. 
                                Art III: “cases or controversy”
1.             ADVISORY OPINIONS
Art III: prohibits fed cts from acting as advisers to other depts. b/c no case or controversy.
·         Conserve poli resources: Congress wouldn’t pass laws that would get struck down
·         Prevents Const violations before they happen
·         Judicial Restraint:
o        Ct involved in legis process. 
o        PROB b/c of S/P!!! 
o        Would undermine Rep Democ + Federalism. 
o        Should respect structure of Const, esp S/P.
·         Lack of sound decisions: Better decisions w/ concrete cases (actual litigants, legal litigation, etc) over hypos/speculative cases. Don’t want law to resolve hypothetical disputes.
·         Conserves judicial resources: since law may never be passed. We don’t want SCt to have to anticipate legal probs. 
·         Unfairness to non-litigants: Concerned about how it affects real people, i.e. everybody else. 
2.             STANDING
Need proper Π, so that we don’t have something like AO. 
Const Elements: 3 part Const requirement.
                                                                                                   i.      Injury in fact:
1.       individualized: personal injury/harm. Includes stigmatic harm.
2.       concrete: cannot be generalized (i.e. anybody can bring that claim). 
                                                                                                 ii.      Causation: “fairly traceable”
                                                                                               iii.      Redressability: able to be redressed by the requested relief.
Manipulation: Ct can invoke standing list to avoid review of merits. 
Policy: Judicial Restraint. Respect S/P and Const structure. Don’t legis when there is no standing.
Counter: S/P arg is inappropriate and confuses standing doctrine w/ poli qs/justiciability. 
Allen v. Wright:
Public School parents (not the children rejected) sue IRS in class action suit for giving tax exemptions to Non-profit charitable Private Schools that racially discriminate. Issue: Standing? Ct holds NO STANDING b/c chain of causation too weak. I.e., too speculative to think IRS tax exemption is causing segregation.   
Lujan v. Defenders of Wildlife:
Π has a heavy burden to establish standing to challenge a regulation of someone else, since the causation and redressability elements will turn on 3rd party conduct. 
3.             POLI Qs
If NO Const violation (i.e. no legal question or violation of law), = PQ. 
If  HAVE a violation of law = NO PQ
A question is “properly deemed political when its resolution is committed by the Const to a branch of Fed Gov other than this Court.”
Marbury = first Poli Q case. Thus, can be viewed as an exception or affront to the doctrine. OR case may be seen as creating the doctrine. 
Baker v. Carr:
Reapportionment of districts. There was an imbalance in state legis that was prohibited by state const. Arg: violation of EPC under 14th Amend. Ct says yes and rules NOT a poli q under G Clause based on Luther v. Borden. Ct sets out attributes of poli q below. 
Luther v. Borden (1849): issue of which gov is true gov of Rhode Island. Poli q not for ct based on Art IV Guaranty Clause, guaranteeing states will maintain a Republican form of gov. 
·         Chaos would lead to political instability if ct decides Q
·         Congressional/Presidential issue: GClause is presidential issue and SCt will not overrule Pres’ judgment
                   Common attributes of Poli Qs: S/P. Non-exclusive list. 
                                                                                                   i.      Textual commitment to another branch of gov: Something in Const says Q belongs to another poli institution.
                                                                                                  ii.      Lack of judicial standards: no legal standards to resolve this issue
                                                                                                iii.      Initial policy determination: Ct not allowed to make policy determination first
                                                                                                iv.      Adherence: Must be special reason to overturn something from another poli institution.
                                                                                                 v.      Lack of respect to another branch of gov