Select Page

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

1. Threshold Questions:
A. Is there an individual right?
B. How absolute is it?
C. How much deference should it receive?

2. Modes of Constitutional argument
A. Original text of the Con. This can mean reading the actual portion for its plain meaning or also looking at how the same phrase is used in other parts (Intratextual analysis)
B. Historical precedent: looking at how the same issue has been resolved in previous cases
C. Historical Record: Looking at what the public understanding of a clause was at the time it went into effect. This can be divined by the public discussion and congressional speeches. It also includes how the law, etc. has been employed over the course of history
D. Pragmatism: the real world results of an interpretation
E. Moral Reasoning: an argument will prevail because it is morally superior
F. Structure: The con is designed to be a blueprint for how to run the republic. Anything that is contrary to this is probably not construed correctly. This looks at the con as a whole, not just the particular text
G. Ethos: the distinctive nature of the American people of the republic

3. Marbury v. Madison:
A. Historical context: Adams lost the presidential election and spent the last few weeks as a lame duck creating new cts and installing loyal federalists in them. The commissions were granted but not delivered when Jefferson took office, and he refused to install the judges. One of them sued to compel delivery of the commission. The case was filed directly w/ SC under original juris.
B. Decisions:
i. Marbury et al have the right to the commissions. They became effective when Congress approved them, regardless of whether the papers had been delivered.
ii. Remedy: Ct distinguished between political acts, which are not reviewable and acts of law, which are.
a. Political: Who can pres nominate for commission?
b. Legal: I’ve been nominated, where is my commission?
iii. Remedy not allowed: Marbury had requested a writ of mandamus compelling Jefferson to hand the commissions over. Judiciary Act of 1789 allowed ct to issue mandamus in appellate juris only, but Marshall reads it as giving him power to do that in original juris
C. Judicial review rationale:
i. Article III: ‘Judicial power of SC is extended to all cases arising under the con.’ It doesn’t follow that because you can hear a case arising under juris that you can strike down a law. He can make the case he has the power to hear a case arising under the con, but how does he get the power to strike it down.
ii. Judge’s oath to ‘defend and support the con’; the oath requires judges only do things they think are consonant with the con. Unfortunately, the pres and congressmen take the same oath, so there’s no reason they cannot review the con as well. You’d think all the members of congress who voted for this would think the law was con.
iii. Language of other parts: con says treason needs two witnesses. What would the SC do if congress passed a law saying only one witness was ok for treason? SC must be the authority to enforce. But this may be true for those particular clauses, but it does not follow that SC’s interpretation is better than Congress’s for other clauses.
iv. Article VI, the supremacy clause: states that the con is the supreme law, and fed laws under it; if a law conflicts with the con, the con wins. But that doesn’t answer whether SC makes that call or say if this part of article III is in conflict with con.
v. Structure: Within structure of con, we need to infer judicial review. If we don’t Congress would be in the position of being able to judge if its legis was con or not. That gives too much power to congress. It makes more sense that the cts be in a position to oversee congress’s power. No one wanted congress to be in charge of its own power. The only flaw is what does that say about the SC’s power? What’s the check on it?
vi. Nature of judiciary: Article III empowers cts to do certain things, and it is ‘the province of the courts to interpret the law.’ If the questions arises in the course of deciding the case, it’s the court’s job to say what the law is. If that conflicts with the con, SC has to say so. Cts looking at wills and contracts have to decide if they’re valid. Why not the same for a ct looking at a statute?
D. Judicial review application: con allowed ct original juris in only a few cases, and mandamus was not one. Therefore JA 1789 is uncon, and Marshall can’t issue mandamus
E. Modes of argument:
i. Constitutional text:
a. Article III. If we can decides cases arising from con, we should be able to decide con itself
b. Article VI: Supremacy Clause
c. Oath given in con
d. All of these are assailable and not foolproof. Why does SC get priority over another branch?
ii. Structure:
a. Nature: the basic duty of a ct is to say what the law is.
b. Other clauses on con: they contemplate someone enforcing them-but none are at issue here
c. Nature of written con: It’s inappropriate for congress to be the final judge of its own actions

4. Review of State Court Decisions
A. General: Review is limited to federal questions decided in the states, Ct cannot hear cases about interp of state law
B. Martin v. Hunter’s Lessee
i. Historical context: Does a VA law conflict with a Federal treaty? VA cts held that if the case arose in VA, they had the power to decide, even if the question was of fed law.
ii. Decision: Ct is final arbiter of federal questions, rega

to reverse itself: Solicitor General can, while arguing in front of SC, urge it to reverse a prior decision. This is easier than amending the con. (partial-birth abortion ban is an example. A state version was struck down, and later SC approved a fed one)
ii. Constraints w/in ct:
a. Reasoned elaboration: SC has a practice of explaining the reason they’re doing something and why; this is not necessarily a con mandate, however. New justices all understand this is part of the job, and there’s no real chance this will ever end.
b. Cert discretion: Sac has gotten more discretion over the years about which cases it is allowed to take. SC’s power over its own docket has increased. SC’s docket shrunk by half under Rehnquist, and this has continued under Roberts (200 or so before, and 80 or so now)
c. Majority Decisions: No one person exercises the authority of SC. There need to be enough people together to make an opinion.
d. Dissents: Can keep the majority in check. One reason to dissent is because of disagreement, another is to make an argument for the future as to why they’re right and the majority is wrong. This does happen frequently.
e. Precedent: Prior decisions may serve as a check on what SC does. Many studies say it does not constrain SC much, but it does not overrule all the cases with which it disagrees. The average # of cases overruled per term is 2. Justices seem to recognize that overruling too much is a shock to the system.
f. Passive virtues: there are virtues in not doing something, and there are areas where SC has made decisions constraining what it does:
i. Standing: who may bring a claim. When SC says someone does not have standing, it is saying SC cannot hear the claim. It is self-limiting.
ii. Political questions: SC will not decide political questions. It governs what kinds of claims SC may hear.
iii. Mootness/Ripeness: When something can be heard. Moot claims have already been resolved (too late to bring) Unripe claims are not ready to be resolved (too early to bring)

6. Federal govt has limited power
A. Limited, enumerated power only
i. Taxing
ii. Defense
iii. Borrow money
iv. Coin money
v. Regulate commerce