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Constitutional Law I
University of North Carolina School of Law
Marshall, William P.

1 – Introduction to Federal Power

1) Why have a Constitution
a) Framework for laws
i) Defines powers and scope of laws
ii) Limits exercise of G & protects individual rights
iii) Federalism (between national/state) & checks/balances (between federal branches)
b) Philosophic basis (identity) that provides unity
i) Generally abstract to facilitate agreement
c) Structure is difficult to change
i) Process: both houses 2/3 vote to propose amendment that is effective when ratified by ¾ of states; OR 2/3 states call for constitutional convention to propose amendments for states to consider and approve by ¾ vote
ii) Good: protects long term values from short term passions
2) C Interpretation Theories
a) Open language requires interpretation
i) McColloch v. MD Marshall: C = great outline … adapted to various crises of human affairs
b) Textual, Framer’s intent, C as holistic document, policy (but public interest subject to whims), judicial precedent
c) Originalism = judges only look at norms that are stated in C or explicit; evolution by amendment only. L decides if silent about an issue.
i) Looking at just intent or framer’s actions too? (Declaration of Ind. Didn’t really mean all men created = since framers had slaves)
(1) BUT framer’s actions shouldn’t count, are looking forward. CONTRA: words are meaningless if actions contradict.
ii) Original meaning = look to what C meant at the time and go no further
(1) Want C to be solid, court exceeding boundaries if look further. Δ by A. But isolation from politics could fan flames of instability (Dred Scott)
d) Moderate originalism: framer’s abstract intent should be followed, but not necessarily specific intentions
e) Non-originalism = judges go beyond 4 corners; evolution by amendment or interpretation
i) Waiting for A is too slow, ppl harmed in mean time.
ii) Political opinions at time of C don’t exist going forward
iii) Need court not to be so isolated from politics in order to promote stability
f) Legal Realism = judges guided by own belief. Key is to frame issue IAW judge’s belief

Federal Judicial Power

1) Establishment of Power of Judicial review
a) Marbury v. Madison established the power of the judiciary to interpret the C
i) Recap: Adams appointed justices of peace prior to leaving office to preserve political party; Madison refused to deliver Marbury’s commission. Marbury filed writ of mandamus in SC to compel delivery. SC held Judiciary Act exceeded C (no commission delivered).
ii) Executive discretion = not reviewable (only check is politics)
iii) Individual rights & G duties (assigned by law) are reviewable
iv) Established Art. III as ceiling of judicial authority; found Judiciary Act of 1789 violated by granting original jurisdiction to SC for writ of mandamus
(1) Questionable – § seems to be about appellate jurisdiction
v) Notably, answered jurisdiction question last instead of first. Decision seems moot. (Dred Scott did the same thing in deciding slaves not citizens)
b) Review of state court decisions set forth in Martin v. Hunters Lease & Cohens v. VA
i) State can’t be trusted to protect federal rights (prejudices)
ii) Structure of C presumes SC reviews state court decisions, otherwise would be very limited
2) Pros & Cons of Judicial Review

Should be Judiciary

Should be Legislature

Check to L

Impedes sound law-making: L may pass laws knowing SC will clean up unC mess, or L may be inhibited by threat of striking down; rely on judiciary to check C’lity (burden)

SCOTUS as experts

J may be biased politically

Continuity – less subject to whims

Judiciary hard to get rid of & unaccountable; adaptability limits

Anti-majoritarian protects minority IAW goal of C

L reflect majority/will of people

Does conlaw lead social policy (Brown v. Bd., lead to J) or reflect social policy (Plessy, lead to Leg)?

3) Limits to Federal Judiciary Power (don’t think will be tested)
a) Justiciability Doctrines
i) Prohibition on advisory opinions; only enter into “cases & controversies”
ii) Standing – limit on who can sue on C issue
iii) Ripeness – case not yet developed (§ not enforced/passed)
iv) Mootness – case is over (Roe v. Wade pregnancy over)
b) Can’t judge political questions
c) Limited judicial resources
i) Can stack court to make it ineffective (FDR court packing plan)
d) Possible disobedience by E – up to Executive to enforce
e) L control – at times L has limited jurisdiction, but C uncertain
f) 11A limit on federal court

) Overruled by Garcia: “traditional G functions” is unworkable standard; protection of state sovereignty comes from political process (process federalism). FLSA doesn’t apply to states.
(e) 1990s = 10A can be used to invalidate federal laws
(i) Especially if compelling ST to act (L function in NY, E function in Printz)
(ii) But Reno said fed. § can prevent ST from engaging in harmful conduct, especially if private actors also regulated
1. but most duties can be characterized this way – difficult to understand
(3) Garcia’s Process Federalism: (states represented in L already, so don’t need extra protection from 10A) – but not protecting states as states
(a) For state powers: states as labs for innovative policies; closer to ppl/accountable; local efficiencies; check on expansive Fed. powers; state culture; smaller scale – efficiency
(b) For Federal powers: protects rights of minorities (states rights used to oppose valuable legislation); improve efficiency (economy); help international standing; promotes uniformity (business lobbyists to standardize regs); control externalities; race to the bottom; more funds/expertise – economy of scale
(4) Should judiciary enforce or L (arg against process federalism)?
(a) Questionable that rep. in L is adequate to protect states interests (maybe when Senate was elected by state gov. prior to 17A
(b) L votes usually concerned with own interests, not states rights
(c) National media feeds L process – call for § (FL carjacking hypo) unlikely to ignore
(i) Reflects mov’t for national L (federal tort reform, property law)
(d) Danger = if feds can control means of production, wages & hours, etc. – nothing left for states
c) 3 categories under CC
i) Use of channels of IC (Heart of ATL)
ii) Protection of instrumentalities of IC (Shreveport)
iii) Activities [substantially-case law not clear] affecting commerce (Wickard, Jones v. Steel)
6) Tax/Spend Issues
a) Broad power to tax/spend or just to carry out enumerated powers?
b) Can Feds put conditions on grants to states?