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Constitutional Law I
University of North Carolina School of Law
Gerhardt, Michael J.



I. Terms

a. Federalism: basic relationship between federal government and state government

b. Separation of powers: the relationship among the 3 branches of federal government

c. Fundamental Rights: individual’s interests which restrict government; government has to respect their rights and cannot interfere.

d. Countermajoritarian Difficulty: a problem with the judicial branch’s ability to invalidate, overrule or countermand laws that reflect the will of the majority.

II. Modes/Sources of Constitutional Arguments

a. Textàactual text of the constitution; different clauses, proper reading (plain meaning, intra-textualism, expressiounius–exclusion if not expressed.)

b. Judicial PrecedentàSupreme Court Cases

c. Structureà perceive inferences from structure. Powers of state and federal government, president, etc.

d. Consequences/Pragmatismàgood? Bad?

e. Original meaning (Framers); historical practices and understanding power?

i. Public understanding at the time the Constitution was ratified?

f. Moral Reasoningàmoral ramifications to the intentions and decisions made?; Basis for the Justice’s choosing arguments—controversial—principles they use. (ex. Notions about fairness)

i. Provides a basis for removal away from text

ii. Answers “what would be the right thing to do?”

g. Ethosàspirit of the laws, national identity, what decisions say about us as a country.

h. Historical practices→ How government has understood its powers over time

i. There is NOT one “right way” to interpret the Constitution, cannot use one analytical tool to show or establish that is superior to other analytical tools.


a. Establishes power of the judiciary to review the constitutionality of executive and legislative acts. Where the executive has a LEGAL duty to act or refrain from acting, the federal judiciary can provide a remedy. Executive power has complete discretion when issue is POLITICAL.

i. Judiciary Act of 1789: going to be source, if there is any source, of the power to issue a writ of mandamus. To make that decision, Marshall will decide (1) what the statute (Judiciary Act) means, (2) if it is consistent with the Constitution, and then (3) if a statute is inconsistent with the Constitution, may the Supreme Court strike the piece of statute down.

ii. Marbury v. Madison—Marbury was appointed a justice of the peace at the very end of Adam’s Presidency. Jefferson, the incoming president, chose to disregard the appointment. Marbury filed a writ of mandamus to compel Madison, Jefferson’s Secretary of State, to deliver the commission. In order for the Court to decide on the case, there must be jurisdiction, which Court only has through Congressional law. **Court holds that Congress does not have the power to expand the content of Article III of the Constitution (Congress may narrow, but cannot broaden the SC’s jurisdiction, BUT see infringement on fundamental rights). Supreme Court’s jurisdiction can only be changed/expanded through a Constitutional amendment. Because the Court lacks jurisdiction, the court CANNOT issue a writ of mandamus, compelling the VP to finish the commission.

1. Major Points:

a. Establishes Constitution as paramount legal authority:

i. Marshall’s approach is to look at the text and then to look at the “plain meaning,” contemporary understanding of the law.

ii. This is consistently how Marshall approaches constitutional interpretation.

b. Province and duty of the Judiciary to say what the law is:

i. It is the court, and not the legislature, which must make the determination whether, in a particular case, an act of Congress is in conflict with this Constitution.

c. Right: Legal (no discretion) vs. political (discretion)—commission is legal so actors have no authority.

i. Where there is a legal right there is a remedy.

ii. Ex. Only the president has appointment power so no one else can enforce it.

iii. In Marbury, there was a legal right, but he is not entitled to the remedy he is seeking (writ).

The Judiciary Act expanded the power of the SC from what was written in article III to what is theoretically allowed in the Judiciary Act i.e. issuing writ of mandamus, but this expansion of power isn’t allowed under the constitution so the act must be struck down and with it the power to issue the writs.

2. Criticisms:

a. Nowhere in the Constitution is it stated that the courts, not Congress, ought to decide whether a given statute does in fact conflict with the Constitution.

b. Possible counter-argument: this is an argument of assumption by Marshall (Emmanuel’s p. 9)—trying to decide which assumption to make, There are some practical reasons why judicial interpretation, rather than legislative interpretation, might be a better means of construing the Constitution. (1) Federal judges are appointed for life, and (2) are thus free from political influence, (3) and are more readily able to objectively and dispassionately review constitutionality.

b. 6 Reasons To Explain Why the Court has the Power to Declare that a Law is Repugnant to the Constitution:

i. Article IIIàjudicial branch has the power to consider all cases arising under the Constitution

1. We must look at constitution when assessing law arising under it

ii. Judges Oath

1. It would be a volation of Judge’s oath to protect constitution to allow an unconstitutional law to exist

2. Response: other officials take oaths for their positions

iii. Language in other parts of the Constitutionàin order for those parts of the constitution to be valid, the court will have to implement them; “arising under” language.

1. Response: is this true for all portions?

iv. Article IV: Supremacy Clauseàif a law conflicts with the Constitution, the Constitution wins

1. The constitution is the supreme law of the land, so something that is not consistent with the constitution would not supersede the constitutionally dictated laws/powers.

2. Response: Cant derive judicial review from supremacy clause

3. Doesn’t say Court is the one to enforce

v. Structureàneed to infer judicial review from the structure because otherwise congress would be its own judge. TOO MUCH power for Congress.

1. What’s the point of writing down a constitution if the government can change it by statute?

2. To hold congressional power in check, someone must oversee congress and it obviously cant be congress so judicial must step in to hold congress to what’s constitutional.

vi. Nature of JudiciaryàProvince and duty of judiciary to say what the law is/interpret the law.


Text Arguments

Structure Arguments

“Arises under” the constitution

Nature of the judicial function; what is the duty of the court? To say what the law is

Supremacy Clause

From other clauses in the Constitutionàcourt probably enforces them

The Oath that Justices must take

Nature of the written constitution—would be inappropriate for Congress to judge the constitutionality of its own actions

c. Supreme Court Authority to Review STATE Court Decisions

i. Martin v. Hunter’s Lessee: 2 conflicting claims to certain land within the state of Virginia. Martin claimed title to the land based on i

to reject law.

d. Constitutional Amendments

i. Strong in theory, difficult in practice

ii. Has only happened 4 times in history

e. Under-enforcement of Court Decisions

i. President is supposed to administer/enforce the law

ii. President can choose to enforce a law weakly

f. Get the Court to reverse itself

i. Requests by the government to reverse itself

ii. Easier than Constitutional Amendment.

vi. Restrictions within the Court

1. Reasoned elaboration

a. Has to explain what it is doing and why

2. Certiarori discretion

a. Courts discretion to which cases it will take and decide

3. Majority decisions

4. Dissent

a. Keeps majority accountable

b. Use dissent to make future arguments

5. Precedent

a. Have to abide by certain decisions in order for there to be stability/consistency in the law

6. Passive virtues

a. Standing Doctrine

i. Who may bring a claim in federal court?

ii. Not all plaintiffs are permissible

b. Political questions—what kinds of issues may be heard by the court

c. Timing: Moot-ness (already decided) and ripeness (too early)


a. What is the relationship between the federal government and the states? Who has what power?

i. Federalist Madison says wherever the end is required the means are authorized. Every particular power to do a thing is included in the grant to do a more general power.

ii. Principal grant of specific federal powers (enumerated powers) is in Article I, §8—grant power to Congress to law and collect taxes; defense, borrow money; regulate commerce among the several states; immigration and bankruptcy; patents and copyrights; declare war…make all laws which shall be necessary and proper for the execution of these powers.

iii. McCulloch v. Maryland: Congress chartered a second bank of the US with branches in many states. In 1819, Maryland enacted a law requiring all banks not chartered by the state to pay an annual tax. McCulloch, the bank’s cashier, refused to pay the tax. Trial court and Maryland Court of Appeals decided in favor of Maryland. SC reverses. SC upholds constitutionality of the Federal Bank, and holds that Maryland’s tax on the bank is unconstitutional. REPRESENTATION REINFORCEMENT.

iv. Original meaning, consequences, structure

1. Expands the power of Congress to implied powers that allow the government to carry out reform; those ancillary powers that are “necessary and proper”

2. The Constitution gives the federal government implied powers to achieve its enumerated powers (as long as these powers are within the scope of the Constitution).

3. Criticism: implied powers can be problematic because it may lead down a “slippery slope” of broad discretion—such as the problems that arise under the ICC.

4. Lessons from Case:

a. How to interpret the written Constitution

b. First case on Federalism

c. Highlights differences between Constitution and Articles of Confederation