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Constitutional Law I
University of North Carolina School of Law
Scales, Ann C.

I. Authority for judicial review

A. Marbury v. Madison (1803; Marshall)
1. Facts
a. New president Jefferson told his secretary of state to withhold undelivered commissions of new judges that former president Adams appointed before leaving
b. One judge, Marbury, filed suit in SCOTUS, seeking writ of mandamus to deliver commissions
2. Holding
a. SCOTUS CANNOT hear suit because it does NOT have original jurisdiction
b. Declared provision of statute unconstitutional because that original jurisdiction type was NOT in Constitution
3. Issues
a. Marbury have right to commission? YES
i. Signed by president, seal of U.S. affixed by secretary of state à good to go
ii. Receipt of delivery NOT required—just a custom
b. Laws afford Marbury a remedy? MAYBE
i. Political matter left to executive discretion
ii. If specific duty to a particular person, then CAN afford remedy
c. Can SCOTUS issue this remedy? YES
i. Where executive has a legal duty to act or refrain from acting, federal courts can provide remedy—can review executive actions

B. Does law authorize mandamus on original jurisdiction? YES
1. Court said yes under Judiciary Act of 1789, Section 13
2. MORE plausible readings say NO

C. Does mandamus on original jurisdiction violate Article III? YES
1. Court said YES—NOT enumerated
a. If congress could add areas of original jurisdiction, Article III would be “mere surplusage, . . . entirely WITHOUT meaning”
2. However, Article III could be just the floor and NOT ceiling—this is NOT the law today
3. Established that federal courts are courts of limited jurisdiction and congress CANNOT expand that

D. Can SCOTUS declare laws unconstitutional? YES
1. Limits on government powers are meaningless unless subject to judicial enforcement
2. Inherent to judicial role to declare constitutionally of laws it applies
a. “. . . emphatically the province and duty of the judicial department to say what the law is.”
3. Court’s authority to hear cases arising under Constitution implied the power to declare unconstitutional laws conflicting with basic legal charter
4. Judges would violate oath to uphold Constitution
5. Article VI makes Constitution “supreme law of the land”

II. Authority for judicial review of state and local actions

A. Martin v. Hunter’s Lessee (1816; Story)
1. Facts
a. Martin claimed title to land in VA based on inheritance
b. Hunter claimed VA had taken title before property treatise with England had taken effect
c. SCOTUS reversed VA Court of Appeals and held that federal treaty was controlling, so Martin wins
d. VA Court of Appeals then said SCOTUS lacked authority to review state court decisions
2. Holding
a. SCOTUS had authority to review state court judgments
3. Rationale
a. Constitution presumed SCOTUS could review state court decisions
i. Constitution creates SCOTUS and gives congress discretion to create lower courts
ii. If congress did not create lower courts, SCOTUS would be powerless since very few cases fall within its original jurisdiction (UNLESS it could review state court rulings)
b. Importance of SCOTUS review of state courts
i. State interests might obstruct or control regular administration of justice
ii. Ensure uniformity in interpretation of federal law
c. Very nature of Constitution, contemporaneous understanding of it, and years of experience established SCOTUS authority to review state court decisions

B. Cohens v. Virginia (1821; two brothers convicted in VA or selling DC lottery tickets; sought review by SCOTUS because Constitution prevents them from being prosecuted for selling tickets authorized by Congress)
1. State courts could NOT be trusted to adequately protect federal rights because some state judges are dependent for office and for salary on will of legislature
2. Criminal Ds can seek SCOTUS review when they claim their conviction violated Constitution

C. Cooper v. Aaron (1958; federal district court ordered desegregation of Little Rock public schools; state disobeyed order on basis of violence and it did NOT have to comply with judicial desegregation decrees)
1. Federal courts also have authority to review constitutionality of state laws and actions of state officials
2. Article VI makes Constitution supreme law of the land, and Marbury said federal judiciary is supreme in the exposition of the law of the Constitution
a. Principal has been respected by this court and this country as a permanent and indispensible feature of our Constitutional system
b. Every state legislator, executive, and judicial officer is committed by oath to support Constitution


III. Doctrine of limited federal legislative authority

A. Overview
1. Congress may act ONLY if there is express or implied authority to act in Constitution Article I
2. States may act UNLESS Constitution prohibits actions 10th Amendment

B. Analysis steps for constitutionalist of act of Congress
1. Does Congress have authority under Constitution to legislate?
2. Does the law violate another Constitutional provision or doctrine?
a. Infringe separation of powers?
b. Interfere with individual liberties?
3. Has police power ONLY for DC or territories

C. Analysis steps for constitutionality of state law
1. Does the legislation violate the Constitution?
a. Has police power

IV. Scope of congressional powers

A. McCulloch v. Maryland (1819; Marshall)
1. Facts
a. Back of the U.S. was re-created to solve the country’s economic problems after War of 1812
b. State governments did NOT like the banks because of their policies
c. Some states adopted laws prohibiting operation of bank within their borders
i. Other states taxed it
1. MD law required any bank NOT chartered by the state to pay annual tax
d. MD U.S. Bank refused to pay the tax
e. John James and MD sued bank and won
2. Holding
a. SCOTUS reversed
3. Rationale (see analysis below)
a. Does Congress have the authority to create the Bank of the U.S.? YES (Four arguments)
b. Is the state tax on the bank constitutional? NO

B. Congress’s authority to create Bank of the U.S. (Four arguments)

1. Historical practice established the power of Congress to create the bank
a. History of first Bank of U.S. is authority for constitutionality of second bank after War of 1812
i. MUCH debate
ii. Those opposed to first favored second
b. “Long-continued practice, known to and acquiesced in by Congress, would raise a presumption that the [action] had been [taken] in pursuance of its consent” U.S. v. Midwest Oil Co.
c. “Systematic, unbroken executive practice, long pursued to the knowledge of Congress and never before questions . . . may be treated as a gloss on ‘executive power’ vested in the President” Youngstown Sheet & Tube Co. v. Sawyer

2. Refute the argument that states retain ultimate sovereignty because they ratified the Constitution
a. MD’s argument
i. “Compact federalism”
1. Sees the states as sovereign because they created the U.S. by ceding some of their power and by ratifying the Constitution
2. If states are sovereign, then they have power to veto federal action (such as creation of Bank of U.S.)
b. People ratified the Constitution, NOT the states
i. People are sovereign, NOT the states
ii. “The government of the Union . . . is, emphatically, and truly, a government of the people”
iii. Counter
1. Article VII says Constitution MUST be approved by states, NOT national plebiscite
iv. Counter-counter
1. Natural that people would act within the states

3. Scope of congressional powers under Article I
a. Non-enumeration in Constitution of Congress’s power to create U.S. Bank is NOT dispositive as to Congress’s power to establish such institution
i. If Constitution included every power, it “could scarcely be embraced by the human mind”
b. “In considering this question, then, we MUST NEVER forget that it is a constitution we are expounding”
i. Do NOT interpret the same as a statute
ii. Congress is NOT limited ONLY to those acts specified
1. It may choose any means, NOT prohibited, to carry out lawful authority
a. Counter
i. Jefferson—slippery slope
1. “Congress [is] authorized to defend the nation. Ships are necessary for defense; copper is necessary for ships; mines, necessary for copper; a company necessary to work the mines . . . “
b. Counter-counter
i. If narrowly construed, doubtful Constitutional would survive WITHOUT extensive amendments

4. Meaning of the necessary and proper clause
a. Grants the power to Congress “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers

5; see below)
i. Court declared unconstitutional federal law prohibiting person from having firearm within 1,000 feet of school because it exceeded limits of commerce power
e. United States v. Morrison (2000; see below)
i. Court declared unconstitutional provision of Violence Against Women Act which authorized victims of gender-motivated violence to sue their assailants because it exceeded limits of commerce power

4. Court consider three questions
a. What is “commerce”?
i. Is it one stag or business or does it include all aspects of business and even life in the U.S.?
b. Was does “among the several states” mean?
i. Is it limited to instances where there is a direct effect on interstate commerce or is any effect on interstate activities sufficient?
i. Does the 10th Amendmentlimit Congress?
1. If Congress is acting within the scope of the commerce power, can a law be declared unconstitutional as violating the 10th Amendment?

B. Commerce clause before 1887 (before the New Deal)

1. Gibbons v. Ogden (1824; Marshall)
a. Facts
i. NY legislature gave Fulton and Livingston a monopoly for operating steamboats in NY waters
ii. They licensed Ogden to operate ferry between NYC and port in NJ
iii. Gibbons operated competing ferry service and violated exclusive rights of monopoly
1. Argued he had right to operate because licensed under 1793 federal law of “vessels in the coasting trade”
iv. Ogden sued and won in NY state courts
b. Holding
i. SCOTUS reversed
ii. NY monopoly was preempted by 1793 federal law
iii. NY monopoly was impermissible restriction of interstate commerce
c. Rationale

i. What is “commerce”?
1. Ogden’s attorney
a. Should be limited “to traffic, to buying and selling or the interchange of commodities”
a. “Commerce undoubtedly is traffic, but it is something MORE; it is intercourse. It describes the commercial intercourse between nations, and parts of actions, in all its branches, and is regulated by prescribing rules for carrying on that intercourse.”
i. Includes all phases of business, including navigation

ii. What is “among the states”?
1. “The word ‘among’ means intermingles with. A thing which is among others, is intermingled with them. Commerce among the states CANNOT stop at the external boundary line of each state BUT may be introduced into the interior.”
a. NOT broadest definition à “in midst of”
i. à ALL commerce within the U.S. could be regulated because everything is in the midst of the U.S.

2. As “comprehensive as the word ‘among’ is, it may very properly be restricted to that commerce which concerns MORE states than one . . . The completely internal commerce of a state, then, may be considered as reserved for the state itself.”
a. BUT Congress could regulate intrastate if it has an impact on interstate activities
i. “But, in regulating commerce with foreign nations, the power of Congress does NOT stop at the jurisdictional lines of several states . . . The power of Congress, then, whatever it may be, MUST be exercised within the territorial jurisdiction of the several states.”

3. Three possible definitions of “among” to choose from
a. Limit Congress to regulating interstate activities
i. Intrastate commerce would have been beyond scope of power
b. Concerning MORE than one state Gibbons
i. May regulate when commerce has interstate effect, even if it occurs within a state
ii. Concern (case-by-case basis)