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

Six Diff ways to study the constitution
            1) Text- reading the plain text
            2) History –
a)      Origionalism – figure out what the ratifiers thought that the words they chose meant
b)      Historical practices – figure out the meaning of words in practice
            3) Structure – look to the design of the constitution
            4) Moral Reasoning – more like tradition argument
            5) Consequences – repercussions of the interpretations
            6) Ethos – notion of justice and ethics
1. Federalism – (the co-existence of the federal and state gov’t )
a. Limited, enumerated powers – powers are limited to those that are enumerated in the constitution
b. Separation of powers – each branch has their own enumerated powers and one branch may not take actions reserved by the constitution to another branch
c. Commerce Power – most impt power given to congress is the ability to regulate commerce
2. Dormant Commerce Clause – mere existence of the fed commerce power restricts the states from discriminating against or unduly burdening interstate commerce
3. Due Process Clause – 14th amendment
a. substantive due process – limits the “substantive” power of the gov’t to regulate certain areas of human life
b. procedural due process – imposes certain “procedural” requirements on gov’t when it takes an individuals “life, liberty or property”.
4. Equal protection Clause – 14th amendment – prevents the gov’t from making classifications that unfairly treat similarly situated people differently
Dangers of Judicial Review: potential for tyranny by unelected judges; uncertainty of laws when passed by Congress; unresponsiveness of lifetime appointed judges; frustrates will of majority; encourages Congr to pass laws it knows will be shot down.
Advantages of Judicial Review: check on tyranny of majority; part of checks & balances; gives dignity, coherence, and cohesion to Const; Const becomes frame of reference.
Role of the Court:
o    In area of Eq. Protection and Due Process – police values of groups that might not be able to protect themselves.
o    In area of Federalism – either to enhance fed power (for reasons above), or protect the power of states.
o    In area of Sep of Pwrs – generally should be left to political process
Section 1: Judicial Review: The Bases and Implications of Marbury v Madison
A. Marbury v. Madison – establishes judicial review (gives the court the right to review actions of congress and invalidate if unconstitutional)
The Marbury holding cannot rest on the text of the Constitution – because the judiciary cannot interpret the Constitution to increase its own power (this would cause circularity) so Marbury creates an unwritten constitutional tradition Justice Marshall, writing for the Court, held that the Const does not allow the Ct original J to issue writs of mandate and, thus, §13 grant of J thereof was unconstitutional. Marbury established 5 principles:
1)      That the Const is in fact applicable law – it’s not just aspirational.
2)      Congr can’t increase the J of the Fed Ct beyond Art III (“ceiling”)
3)      The Ct can review the constitutionality of any Exec act – unless it is “political.”
4)      The Ct can review the constitutionality of federal legislation.
a)      This is b/c there is a legal duty and therefore where such a duty is assigned to the head of the dept by the legislature and individual rights depend on performance of this duty, an individual who is injured has a right to a remedy.
5)      The court cannot however review the political questions – where the heads of the depts. Execute the will of the president or act in cases in which the president possesses a constitutional or legal right, the acts are only politically examinable and cannot be examined by the court (ex: president can appoint cabinet members and ct cannot question – issue of limits on judicial review and separation of politics and laws)
6)      The Sup Ct is the final arbiter of disputes re the meaning of the Const.
a)      This case came down to the significance of a semi colon (separating judicial from appellate review)
b)      Court will avoid constitutional interpretation whenever possible
i)        Reduces likelihood of permanent error or permanent area of disagreement/ conflict
·         Court will try every other option b4 judicial review
Broad Interpretation of Marbury: The Ct’s interpretation in the context of certain litigation is to be followed by all persons (regardless of whether they were parties).
Narrow Interpretation: In the context of specific litigation that requires the Ct to choose b/t a Statute/Presidential action and the Const, the Ct’s interpretation in that one instance is controlling.
1. If the Supreme Ct. identifies a conflict between a constitutional provision and a congressional statute, the Ct. has the authority and the duty to declare the statute unconstitutional and refuse to enforce it.
a. the people established a government of limited power, so Congress must not be the only reviewer of constitutionality of their own laws, otherwise there is the potential for unlimited power.
b. Act struck down – Judiciary Act of 1789
c. Art VI states that the constitution is the “supreme law of the land”, and it is the function of the judiciary to say what the law is.
1) Supreme Ct. is not the exclusive interpreter of the constitution, but they are the ultimate interpreter.
2. Criticisms- not explicitly stated in the constitution that the Supreme. Ct. is the ultimate arbiter.
a. however, since the constitution is silent, it is more practical to have an ultimate arbiter, and that should be the Supreme Ct. because they can protect the interests of the minority because they are not subject to political pressures (due to life appointments)

s -most cases are not going to make it to the SC. More power going to district courts.
Factors which restrain the practice of constitutional Amendment
1)      Supermajority provisions of 2/3 congress 2/4 states require a degree of political and geographic consensus that is difficult to achieve.
2)      Political culture of self restraint has arisen toward altering the founding fed documents
3)      The SC has interpreted the constitutionals text w/ such latitude that reversals in constitutional doctrine have occurred frequently by judicial action rather than formal amendment.
Section 3: Supreme Court Authority to Review State Court Judgments
B. Martin v. Hunter’s Lessee – judicial review of state court decisions
The Supremacy Clause stands for the proposition that the framers intended uniformity of fed laws throughout the states. Further, questions of constitutionality can’t be left to state judges. Fed laws thus prevail over state laws.
1. Supreme Ct. has power to review the federal questions decided by state courts in order to maintain uniformity and supremacy of federal law.
1.      under Art. III, the judicial power extends to “all cases” arising out of federal law, not just those that are originated in federal court.
a.       limited to review of federal questions, so if there “clear and plain statement” of “independent and adequate state grounds” for the decision, the court will defer to avoid a 10th amendment conflict or giving “advisory opinions.”
2.      the federal gov’t is supreme, the states are not “dual sovereigns”
3.      if states were not subject to review, federal law could not be applied uniformly across the nation.
                        2. What is the support for judicial review of state activity?
a)      Framers – they contemplated that the SC would be reviewing state court -infer this from creation of Article III courts. If the SC couldn’t hear state cases, then they would have nothing to do
·         Counter argument – if the framers thought this why didn’t they put it in explicitly
b)      Uniformity pg 74
·         There is one SC which exists to enforce uniformity in what fed laws mean throughout the country
·         Otherwise there would be 50 cts reaching diff judgments
·         It is an essential ingredient for the SC to be last resort 
c)      Hostility of the States