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Constitutional Law I
University of North Carolina School of Law
Boger, John Charles


Constitutional Interpretation: Types of Arguments

Framers’ intent
Precedent (Supreme Court)
Contemporary mores
History and tradition

The Federalist Vision

10 – Larger, heterogeneous, representative republic as best way to guard against problems of factionalism rooted in property interests, with interests contrary to the rights of others or the interests of the whole.

Vs. Antifederalist: Smaller, more homogenous govt – pure democracy

51 – Safeguards of separation of powers; checks and balances.

“if men were angels” – Counting on people’s self-interest rather than good nature – Madisonian republican theory
Allowing for US economic development

78 – Countermajoritarian difficulty in judicial review – will of legislature vs. judgment of courts. Hamilton.

Judicial review implies Const’s supremacy, not judicial supremacy

Court not undemocratic, but upholding democracy, making Const. the best it can be, making public sensible of its true best interests. Leading public opinion by imposing objective stds of right and wrong.
Protection against abuse of power by Congress.

Judiciary the “least dangerous” of the 3 branches, has neither the power of the sword (exec) or the purse (legislative), but “merely judgment”. Has to depend on the other 2 branches to enforce its judgment.

47: Madison takes up challenge of whether separation of powers ought to be completely separate from each other.

Separate branches are interconnected by checks and balances.
Tyranny = all powers in one

48: Checks = Independence.
Branches can’t be truly independent unless each branch has some of the power of other branches

Judicial review, presidential veto, slow enforcement of statute, etc – other branches’ checks and balances. Genius is that checks on tyranny happen before they can become tyrannical.
Highlights problem of legislative over-reaching.

JUDICIAL REVIEW of Constitutional Issues

Marbury V. Madison (Const. supreme; Judiciary interprets const.)

Establishes Constitution as supreme/higher law, and anything conflicting with it is void.

Reinforcing Art. 6 Sec. 2 Supremacy Clause

Sets up judiciary as supreme authority to declare federal statutes and federal executive actions unconstitutional.

Although nothing in Const. text grants this power
“It is emphatically the province and duty of the judicial department to say what the law is.”
But, there are some issues that are “political questions” in which the courts won’t interfere – for other branches to determine

Though the court decides whether it’s discretionary/political question.

Supreme Court Review of State Courts/State Laws

Martin v. Hunter’s Lessee (Implied power to review state Cts.)

SCt’s authority to review state court judgments is implied in Const., based on text & logical deduction.
Textual arguments:

Art 6 § 2 Supremacy clause – constitution binds state governments, too.
Art 1 § 10 – states’ sovereignty is limited/constrained by the Constitution.
Art 3 § 1 – SCt’s authority – Logically, if Congress didn’t create lower fed cts, SCt would be powerless unless it could review state rulings (except for SCt’s small original jxn)

Importance of uniformity of interpretation of fed law – rather than states developing different interpretations of fed laws.
Defendants’ rights against state prejudices.

Cohens v. Virginia (SCt review of State Courts-state Statutes)

Affirmed SC’s authority to review state court judgments involving state statutes
State constitutions/laws can be MORE generous with respect to rights, but not less, than US.
State Supreme Court is final authority to interpret a state statute.

But SCt can review its Constitutionality

State court judges: elected, may not be trusted to protect federal rights, vs. federal appointed judges.

Cooper v. Aaron, 1958 (SCt review of state officials’ actions, laws)

Facts: Ark. claimed it was not bound to comply with fed. Ct. order to desegregate Little Rock schools

Mcculloch v. Md. (Means/Ends; Implied Cong. powers vs. limiting state interference w/ fed govt)

There are Constitutional powers that are implied, and court can give them shape, develop them, based on means test
1: Broadly defines scope of Congress’s powers; limits state govt authority to impede fed govt.

Implied powers of Congress: not limited to powers enumerated in Article I.
Based on Necessary & Proper clause. Congress has power to do what’s necessary; not limited to only what is absolutely necessary.

Vs. 10th amd., says Powers not delegated to US by Const., are reserved to the states or the people.

Marshall reads narrowly; it lacks “expressly” like Articles of Confed. had.

Means/ends test : “Where the end is legitimate and within the scope of the Constitution, all means that are appropriate and plainly adapted to that end, that are not prohibited and do not conflict with the letter and spirit of the Constitution are constitutional.”

And judiciary decides if means are adapted to end.

Held: Congress had the authority to create the Bank of US

Historical argument (original bank)
Framers intent (many of the same people created Const. and original bank)
Constitution derives its power directly from the people, not the States.

State sovereignties are bound by US Constitution.

Fed govt’s power is limited, but supreme within its sphere of authority.

2: Court can step in where majority of Americans not being represented by a state govt’s actions.

Here, the state (a part) cannot tax the US (the whole).
E.g. later stepped in to protect minority voting rights.

Constitution must be adapted to the ages

Calder V. Bull (Unenumerated “Natural” Rights)

Judicial activism vs. judicial restraint (first SCt debate)
Upheld “natural rights” not just those enumerated in Const. (J.Chase)

Text supports: 9th Amd, “Enumeration in the Const of certain rights shall not be construed to deny or disparage others retained by the people.”

Opposition. (J.Iredell): We have a written Const, and that’s what should govern.

9th Amd says other rights, but doesn’t say courts should be discerning them. Maybe legislatures should define those rights.

nsferring executive power to the courts in turning a general public interest into individual right to sue in court.

As Congress tried to do in Endangered Species Act

NWF members who used land “in the vicinity” of area alleged mining under federal regs would destroy its natural beauty lacked standing. Too general. Needed to show they used the specific land.

Mass. v. EPA (2007)

Held state can sue EPA for failure to regulate greenhouse gases bc harms from global warming sufficient

Elk Grove USD v. Newdow (2004)

3rd party standing – not sufficient for noncustodial father to sue on behalf of daughter regarding Pledge of Allegiance “under god”.

Ct dodging controversial political issue here? Appropriate use of justiciability?


Marbury: “Questions in their nature political…can never be made in this court.”

Baker v. Carr, 1962 (TEST for what’s a political question)


Commitment of the issue to another branch of govt in the Const
Lack of judicially discoverable and manageable stds for resolving issue
Inability to decide case without ct. making policy decisions best left to political branches
Likelihood that judicial resolution will show a lack of respect to other branches
Unusual need for unquestioning adherence to a political decision already made
Potential for embarrassment caused by multiple decisions on subject from different branches

Held: Tenn. Malapportionment of legislative districts violates EPC

(Judge) Nixon v. US, 1994 (no judicial review of judicial impeachmts)

Held: Fed dist. Ct. judge impeached & removed by Congress can’t appeal to the courts to tell legis. branch how to deal with judicial misconduct.
Framers’ intent: Impeachment is only legislative check on the judiciary; Judicial review of impeachment would interfere w/ intended checks and balances.
Left open question of whether executive impeachments are nonjusticiable political questions.

Powell, 1967 (Upheld judicial review of internal congressional decisions)

Judicial review of internal congressional decisions allowed; not a nonjusticiable political question.
Held, case was justiciable because House can’t take away people’s power to select their legislators by excluding duly elected and reelected member.
Even though Art. 1 § 5 allows each house to “be the judge of the qualifications of its members,” Ct held they only have discretion to ensure members meet age/citizenship/residence reqts in Art. 1 § 2.