Constitutional Law: Potuto 2008
I. The Constitution and Its History
A. Origins and Rationale
1. Disconnect between GB and Colonies
2. National consensus of autonomy and power over political policy in GB
3. During Rev. War—common goals; disrupted after war—Unionization different interests: agrarian or industrial
4. South wanted little federal control—strong local gov.
5. Articles of Confederation: 10 years—States are sovereign; no tax; no power without State ratification—Problems between states regarding interstate commerce.
6. As a result—constitutional convention
7. Federalists: wanted more Fed power; Republicans (Anti-Federalists) didn’t.
B. Issues
1. Federalism issue—conflict between State and Federal powers
2. Separation of Powers—scope of Executive; Judicial; Legislative
3. WHO DECIDES? Which issues are to be decided by whom?
4. WHO IS WHO? If Fed/State—which branch/gov. body?
C. Article I: what the new Gov. needs:
1. Representation based on state population/Equal representation (Senators)
2. Currency
3. Interstate/International Commerce—only between the states, but doesn’t say Fed has power within to regulate commerce power within state.
a. How is the line drawn between commerce within State and Interstate
b. Expanded broadly what “interstate” and “commerce” means
1. beyond regulation and the method of buying and selling
4. Dormant commerce clause—the granting of commerce power to Fed makes it impossible for States to have any power even if Fed does nothing with its power (legislate).
5. Taxes
6. Uniformity of Borrowing money
7. Uniform laws on bankruptcy/naturalization
8. National Defense
9. §8 [18] Necessary and Proper clause
D. Article III.
1. Since Fed. Courts are statutory—not necessary; fed questions can be litigated in state.
2. §1: Vesting power in a Supreme Court and grants Congress power to form inferior Courts. The Big Compromise—Fed doesn’t form lower Fed Cts—States have/had power to form.
3. §2[1]: Where States have given power to Fed to settle dispute
a. Fed. Question
b. Diversity Jurisdiction
c. Cases affecting ambassadors, other public ministers and Consuls
d. Admiralty
e. Where the U.S. is a Party
f. Controversies between two or more states
g. Controversies between a State and Citizens of another State
h. Between Citizens of the same State claiming lands under Grants of different States
i. Controversies between Foreign States.
**IF not within one of these categories—Fed Can’t Hear**
4. §2[2]: Exceptions Clause: where Ambassador, public Ministers, Consuls; State as Party—Supreme Court has Appellate Jurisdiction.
5. ¶2 just divides up what is considered original jurisdiction and appellate jurisdiction.
6. Original: affecting Ambassadors and other public Ministers; Consuls
Where a State is a Party
E. Article VI:
1. If any power has been given to Fed; every state shall be bound by the Fed’s decision.
F. 13th; 14; 15th Amendments (Post Civil War)—less power to states; more uniformity in a Fed.
G. Bill of Rights: not originally adopted because fear South wouldn’t ratify became 1-11 Amendments;
H. Act of 1789 Created Fed. Cts.
II. Judicial Review
A. The legitimacy of Judicial Review
1. Marbury v. Madison—Separation of Powers—who has last word
a. Many Federalists appointed judges who would support the strength of the constitution
b. Facts: Judiciary Act 1789 conferred original jurisdiction upon SC to issue writs of mandamus to U.S. officers. This “conflicts” with Art. III § 2, which gave SC original J in particular cases (ambassadors, treaties…) and appellate J in all others. Art. III limited by what is enumerated: the act is unconstitutional because it falls outside purview of Art. III.
c. Issue of what the appellate jurisdiction of SCOTUS is
d. Case Says To Things:
1. Any Act wider in scope giving power to SCOTUS outside bounds of Constitution is unconstitutional even though Congress has the power to confer powers onto the judiciary.
2. Judicial duty I determining which of conflicting rules governs the case in a conflict between a law in conflict with the constitution and the constitution itself. The Constitution is a paramount law and SCOTUS has the power to decide all cases under the Constitution. Thus, a law repugnant to the constitution is void and courts as well as other departments are bound by it.
e. Mandamus—trying to force the appointment; has to be nondiscretionary. If the act is discretionary in a certain branch and the judiciary decides instead—becomes a separation of powers issue-supercedes its own right.
f. if Congress acts in a constitutional matter—then a writ of mandamus cannot be issued because it cannot supercede an act where the court has no discretion. Only way is where the thing to be done is part of one’s duty.
g. Commission was already ordered—so writ is an appropriate remedy
h. Since Madison was only a Secretary of State—not a public minister because didn’t deal with foreign matters.—All Article III §2¶2 deals with foreign national representatives.
i. Cannons of Construction: Cts. Do not reach constitutional issues that they can reach on any other grounds.—don’t play around with the Constitution.
j. Historical Significance: to set executive in place; federalist elected justices;
k. Ct. points to the oath they take to uphold the constitution justifies their power to declare a legislature’s law unconstitutional.—Problem because all gov. employees take the same oath.
l. Counter argument would be that Congress cannot act unconstitutionally and be Congress (Sovereign).
m. Ct. does this b/c perfect vehicle to fight over judicial power—gave prez. What he wanted; and expressed Judicial power.
n. SCOTUS didn’t have subject matter jurisdiction so technically couldn’t have ruled on the constitutionality of the provision, but had last word–
o. Only way to overturn: SCOTUS overturns or Amend. To constitution or yanks Justices with different judicial philosophy (impeachment); revolt
B. Congressional Control of Judicial Review by the Federal Courts
1. The Scope of Congressional Power over the jurisdiction of Lower Federal Courts
a. While Art. III of the Constitution created SCOTUS, it deliberately gave Congress the option to create ‘such inferior Courts as the Congress may from time to time ordain and establish.’
b. Justice Story’s central argument in Martin v. Hunter’s Lessee
1. Court uses the Supremacy Clause to strike down a judgment by the Virginia Supreme Court that refused to recognize a treaty with England that preserved the property rights of loyalists. Court said “Congress may constitutionally omit to vest the judicial power in courts of the United States, but it cannot be denied that when it is vested, it may be exercised to the utmost constitutional extent.”
2. The judicial power of the US must extend to certain cases and must be vested—in either original or appellate form—somewhere in the federal judiciary.
3. There are some cases, such as federal criminal prosecutions, falling within the mandatory judicial power that could not be heard as an original matter by state courts.
4. SCOTUS’s original jurisdiction could not be expanded to take cognizance of all such exclusively federal cases.
c. The Hart School: Congressional exceptions to the appellate jurisdiction of the SCOTUS must not destroy the Court’s essential functions: to provide a tribunal for:
1. interpretations of federal law by state and federal courts
2. maintaining the supremacy of federal law when it conflicts with state law or is challenged by state authority.
2. Sheldon v. Sill
a. Mortgagors pleaded in their answer that the circuit court had no jurisdiction because the instruments were originally given to a Michigan bank and that the assignee stood in the bank’s stead pursuant to §11 of the Judiciary Act of 1789.
b. SCOTUS stated that the Constitution had defined the limits of the judicial power of the US, but it had not prescribed how much of it would be exercised by the circuit courts; consequently, the statute which prescribed the limits of their jurisdiction could not be in conflict with the Constitution, unless it conferred powers not enumerated therein.
c. Congress may withhold from any court of its creation jurisdiction of any of the enumerated controversies. Courts created by statute can have no jurisdiction but such as the statute confers.
3. Ex Parte McCardle
a. McCardle, a newspaper editor in military custody, appealed a lower federal court’s denial of habeas corpus to SCOTUS, relying on a recently enacted jurisdictional statute. After the Court sustained its jurisdiction over the appeal and heard oral argument, Congress repealed those provisions of the 1867 law authorizing SCOTUS review on writs of habeas corpus. All this took place in a period of great tension among the three branches. Congress overrode President Andrew Johnson’s veto on Congress’ withdrawing appellate jurisdiction in 1868. SCOTUS unanimously upheld the 1868 withdrawal of jurisdiction and dismissed the appeal.
b. The jurisdiction-stripping statute did not read as if Congress stripped the Court, instead the Court read the statute that it sustained there did not foreclose all appellate review: cases like McCardle’s could still reach the Court through a route other than the repealed 1867 provision as the Court knew. **Statute lists what it is granting, and the assumption is that what Congress does not grant is not included.***–Default goes to Congress because wording notices the power of Congress to confer jurisdiction.
c. Ct interpreted Article III, §2 “with such exceptions & under such regulations as the Congress shall make” means that Congress can determine the scope of SCOTUS’ appellate jurisdiction found in §2[1] except the three original jurisdictional grants, thus jurisdiction stripping statutes are kosher
d. Could argue Art. III, §§1 & 2 “judicial power shall be vested in one SCOTUS and in such inferior courts as the Congress may from time to time ordain & establish” “Shall extend to…” the power needs to exist somewhere in the Federal court system, thus if it’s not appellate jurisdiction then it must fall under SCOTUS’ original jurisdiction
e. Implications:
-Another check & balance on the SCOTUS potentially could gut the power of judicial review
-Could diminish the uniformity b/t States
-Supremacy clause is implicated b/c Federal law is intended to trump state law, but w/out federal review we must trust the states to regulate themselves
-Bottom Line: both branches need to trust each other to exercise proper restraint if Congress tried to exercise this power modernly, Duncan thinks there’s a good chance that either McCardle or the floor and ceiling restriction of Marbury would be overruled (w/out touching the right to judicial review)
f. Interpretation—You read a statute in order to uphold constitutionality, give deference to what interpretation would be constitutional (Marbury did the opposite though).
g. Ex Parte Yerger: filed writ directly to SCOTUS in order to avoid this problem—appellate jurisdiction not original.
4. United States v. Klein—In times of crisis you get weird decisions
-About both Appellate jurisdiction of SCOTUS and jurisdiction of lower Fed. Limits SCOTUS appellate jurisdiction by limiting lower courts.
a. 1863 statute provided for seizure and sale of captured or abandoned property in areas of rebellion and for payment of the proceeds into the US treasury. In United States v. Padelford, the statute was construed to permit recovery by a claimant who had not been loyal in fact, but who had been given a presidential pardon. Congress passed a statute providing that a presidential pardon was not proof of loyalty, but was proof that the claimant had given aid to the rebellion. Thus, a court must outright dismiss if presidential pardon.
b. The SCOTUS opinion concluded that the 1870
ndependent—that is, whether, no matter how the federal issue is resolved, the state ground will be dispositive. Thus a state court decision invalidating a state law on both state and federal constitutional grounds cannot be reviewed by SCOTUS, even if the bulk of the state court’s discussion concerned the Constitution.
c. Ground can only be adequate when it doesn’t conflict with FED—If State Law gives more protection then is adequate; if State law gives lessànot adequate.
d. The body that has the ability to finally decide has the ability to decide if it has jurisdiction. Always have subject mater jurisdiction to decide if you have subject matter jurisdiction. When Fed law is uncertain—SCOTUS can take in order to decide FED law.
e. Upholding Claims of Federal Constitutional Rights
1. Recent years have seen an increase in the number of state court decisions that have relied on parallel state constitutional provisions, precluding SCOTUS review of decisions that state laws violate the Constitution.
2. Michigan v. Long
a. Terry Stop Case, where Long was convicted for possession of marijuana found by police in the passenger compartment and trunk of Long’s car. Police had reason to believe that the vehicle contained weapons. The Michigan Supreme Court held that the search was part of the poisonous tree because the Terry Stop did not justify the search for pot in Long’s car. Long argued that the decision below rested on adequate and independent state ground in order to prevent SCOTUS review.
b. O’Connor developed the rule: “If a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, we will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so. If a state court chooses merely to rely on federal precedents as it would on the precedents of all other jurisdictions, then it need only make clear by a plain statement in its judgment or opinion that the federal cases are being used only for the purpose of guidance, and do not themselves compel the result that the court has reached…If the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent grounds, we, of course, will not undertake to review the decision.”—Deference to SCOTUS Review–
c. SCOTUS found that the Michigan Supreme Court’s decision did not rest upon independent state ground because it only cited the state constitution and relied exclusively on Terry.
d. Stevens Dissenting stated that since Michigan provides greater protection to its citizens, there was no federal interest in the case and to admit such cases would fill SCOTUS’ dockets when states render decisions in favor of their citizens.—But this isn’t the issue because there was no way of deciding what the basis for the decision was—however is majority being lazy? However, not the litigant’s fault so would be denying rights to litigant for no fault
3. Constitutional Litigation Initiated in Federal Courts
While the lower federal courts were given certain powers in the 1789 Act, they were not given any power to review directly cases from state courts, and they have not been given such powers since that time. Only the SCOTUS was authorized to review on direct appeal the decisions of state courts. Thus from the beginning we have had in this country two essentially separate legal systems. Each system proceeds independently of the other with ultimate review in the SCOTUS f federal questions raised in either system.
