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Constitutional Law I
University of North Carolina School of Law
Papandrea, Mary-Rose

Constitutional Law Outline
Professor Papandrea
Spring 2013
The Judiciary Power:
a)      Marbury v. Madison: Asserts the power of judicial review.
i)        Facts:
(1)    Federalists wanted to keep power so before Jefferson (Republican) took office they hired as many Federalists justices of the peace as possible
(2)    Marbury’s commission did not get delivered before Jefferson’s inauguration & Jefferson refused to deliver the commission
(3)    Court could not hear case because it did not have original jrx but it went on to discuss the Constitutionality of reviewing the executive actions anyways
ii)       3 Questions:
(1)    Does Marbury have a right to the commission?
(i)      Yes, all procedures were followed – when it is signed by the President, the appointment is made
1.       Delivery was merely a custom and withholding Marbury’s commission “violated a vested legal right”
(2)    Do the laws afford him a remedy?
(i)      Right of every individual to claim protection of the laws whenever he is injured
(ii)    Even against the executive branch
1.       When there is a specific injury/duty to a specific person
2.       NOT when the matter is left to executive discretion
(3)    Can the Supreme Court issue this remedy?
(i)      Yes, where the executive has a legal duty to act or refrain from acting, the federal judiciary can provide a remedy (including a writ of mandamus)
(ii)    Establishes judicial authority to review constitutionality of executive actions
iii)     Article III would be “mere surplusage” and without meaning if Congress could add more areas of original jrx
(1)    Article III as the ceiling or the floor? Still Debated
(2)    Marbury says that Article III is the ceiling and that federal courts are courts of limited jrx
(i)      Congress can’t expand the jrx granted in Article III
(2)    Why Supreme Court can Declare laws Unconstitutional:
(1)    Constitution imposes limits on government powers and these limits are meaningless unless subject to judicial enforcement
(i)      Hamilton: the Constitution is WRITTEN (can’t be mistaken or forgotten)
(2)    Inherent in judicial role to determine constitutionality of the laws that it applies
(3)    Court’s authority to decide cases arising under Constitution implies power to declare laws conflicting with legal character
(4)    Judges take an oath of office and they would violate this oath if they enforce unconstitutional laws
(i)      Begs the question though – would they be violating their oath if they didn’t have the power to make such review?
(5)    Constitution is the “Supreme law of the land”
(3)    Perfectness of Marshall’s opinion: established judicial review in a case where a statute was declared unconstitutional for expanding the Court’s powers
iv)     Issue: is the court empowered to review acts of Congress and void those that is finds to be regugnant to the constitution?
(1)    Held: yes. Here, court finds §13 of the judiciary act unconstitutional.
(2)    Importance of Marbury: authority of courts to review executive actions except in cases involving political questions. Article II is a “ceiling for federal court jurisdiction, authority for judicial review of legislative acts. “
b)      The power of SCOTUS to review State actions:
i)        Martin v Hunter’s Lesse
(1)    Finds that the structure of the constitution assumes that the supreme court may review state court decisions
(2)    Inherent distrust of state courts, need for uniform interpretation of federal law
(3)    Congress could have chosen not to create state courts and had it done so, there would have been original jurisdiction in Supreme Court
ii)       Cohens v. Virginia
(1)    2 brothers convicted of selling lotto tickets in VA in violation of VA law
(2)    Reviews federal court power to take cases from statecourt
(1)    State courts cannot be trusted to adequately protect federal rights because judges are dependent for office and for salary on the will of the legislature
(2)    Criminal defendants CAN seek Supreme Court review when they claimed that their conviction violates the Constitution
c)       External Checks on the Judiciary Branch
i)        Impeachment, presidential nomination, senate confirmation, constitutional amendment, congressional power to regulate and restrict fedral judicial power.
d)      Self imposed checks on judiciary:
i)        Interpretive limitsàoften inconsisten
ii)       Originalism
(1)    Rights limited to those explicit in text, intended by founders, and/or supported by history and tradition.
(1)    Aims to limit discretion of Court
(2)    Rely on constitutional amendment process for constitutional evolution
(3)    Example: Nothing in constitution about reproductive freedom  no constitutional right
(2)    Concerns
(1)    Rarely is there an explicit textual basis for a right
(2)    Allows unelected judges to undermine the choices of the people’s elected representatives
(3)    No evidence that the framers ever intended to delegate creation of new rights to judges
iii)     Non originalism: Not bound by text, original intent, history, or tradition
(1)    Consider evolving norms; belief in “living constitution”
(2)    Constitution inherently counter-majoritarian
(3)    Amendment process too cumbersome
e)      Modalities of Constitutional interpretation:
i)        Text, structure, framer’s intent, prior drafts, historical practices, precedent (stare decisis), morality, modern interpretation, tradition, consequence
ii)       District of Columbia v. Heller: rare example of a case where the court relies only on textual interpretation because there is no precedent. To interpret the text the justices look to immediate post ratification understanding and similar clauses in state constitutions at the time.
f)       Tiers of Judicial Scrutiny: Level of scrutiny depends on degree to which law burdens the right
i)        Strict scrutiny: Law narrowly tailored to serve compelling government interest
(1)    Here, the compelling government interest must be one of the actual purposes behind its creation, not enough to have a government interest created for litigation that was not present at the time the law was created.
ii)       Intermediate scrutiny: Law substantially related to important government interest
iii)     Rationale basis review: Law reasonably related to legitimate government interest
iv)     Balancing tests
Justiciability and it’s limits:
g)      Justiciabilty doctrines are federally placed limits on what cases may be heard in federal courts.
i)        Constitutional limits
(1)    Established by the constitution and may not be overruled by Congress
ii)       Prudential limits
(1)    Based on prudent judicial administration and can be overriden by congress bc they are not constitutionally required.
h)      Why are these limits in place?
i)        Limit role of court in democracy
ii)       Separation of powers concerns
iii)     Conserve judicial resources
iv)     Adversarial proceedings better
v)      Better decisions
vi)     Don’

    Necessary and Proper Test:
(i)      Is the end within enumerated scope of Constitution?
(ii)    Is there some minimal degree of fit between the means and the end – is law appropriate?
(iii)   Does anything in the Constitution prohibit what Congress is trying to do?
(3)    + 10Aà “the powers not delegated to the United States bu the Constitution nor probited by it to the states are reserved to the states respectively, or to the people.”
(1)    Leads to 2 question in evaluating the constitutionality of an act of congress:
(i)      Does congress have the authority under the constitution to legislate?
(ii)    If so, does the law violate another constitutional provision or doctrine
(2)    Only one question in evaluating constitutionality of the act of a state:
(i)      Does the legislation violate the constitution?  
ii)       McColloch v. Marylandà pivotal in determing scope of congressional power and relationship of federal and state powers.
(1)    Establishes that federal gov is supreme over the states, Congressional powers are expanisve, and states cannot interfere with the activity of the federal government
(2)    Justice John Marshall writes opinion w/ interpretation of NP clause saying it makes it clear Congress can use any means not prohibited by Constitution to carry out its express authorityà very broad interpretation of the clause which continues to this day
(3)    Reaffirmed interpretation of NP in United States v. Comstock (2010)     
(1)    “in determining whether the NP clause grants congress the legislative authority to enact a particular federal statute , we look to see whether the statute consistitutes a means that is reationally related to the impelentation of a constitutionally enumerated power”
(i)      Means chose must be reasonably adapted to the attainment of a legit end
b)      The Commerce Clause: “The Congress shall have the power . . . [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
i)        Phases of Interpretation
(1)    1st phase (Gibbons): Adopted an expansive view of the scope of the Commerce Clause
(1)    Gibbons v. Ogden
(i)      Issue: does “commerce” include navigation or should it be limited to “buying and selling?” Congress my regulate “Intercourse for purposes of trade,” And “intercourse for purpose of trade,” “intrastate” activities that have “interstate effects,” and only cant regulate completely internal activities. 
(ii)    Defines commerce as all phases of business, including navigation, which was the issue in this particular case.
(iii)   “among the states” interpreted as commerce which concerns more states than one.
1.       Can regulate intrastate activities IF they have impact on interstate activities
2.       A middle of the road definition that requires line drawing and case by case analysis to enforce