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Constitutional Law I
University of North Carolina School of Law
Nichol, Gene R.

Prof. Nichol/Constitutional Law/Spring 2010


A. General Themes of Con Law:
1. Democracy – meaning policies choices (laws, statutes, rules, governing principles) are made by the people/populous. Rule by majority will of the people.
a. Constitutional Democracy – is what we have in this country. Diff b/t Con Democracy & a pure democracy is that in a constitutional democracy there may be some things that we promise not to do that even if a majority of people want to do certain things, they will not be able to do them. Pure & Constitutional Democracy can collide.
2. Republic – we elect people to carry out our objectives.
3. Committed to a system of right to jury trial (6th Amend) regardless if a case is easy or hard. (Ex. Jack Ruby shot Lee Harvey Oswald on national TV and we still give him a jury trial even though it is clear that he is guilty.
a. POLICY: We think these practices are a greater guarantee of liberty or greater accountability. We have promised to follow them ahead of time.
4. Con Rules that are designed to slow the process down —-to make gov’t less efficient, therefore dangerous in terms of being confiscated by some exuberant authority.
5. Constitutional Constraint/Limitation is not always anti-democratic.
6. There is frequently conflict b/t majority sentiment and Constitutional restraint. Some circumstances where Constitution limits what can be done.
7. Separation of Pwrs: a decision about the appropriate content of the constitutional & statutory limits on fed judicial pwr is a quest about the proper role for fed judiciary in scheme of Amer gov’t and determining Congress’s ability to control fed ct juris involves SOP analysis.
8. Federalism : State cts are primary alternative to fed cts, so scope of

fed judicial pwr is crucial in determining the authority of the state. Expansion of fed judicial authority defense on federalism grounds: as necessary to protect the interests of the fed gov’t from state intrusion. Other side : Increased fed ct review under federalism grounds as usurping pwr properly reserved for States.
9. Constitutionalism more justifiable b/c it opens the channels of democracy.
10. Dealing with controversial & vague concepts
11. E/P of the Law –Who does EP protect? What does EP mean?
12. Due Process of Law —What process is required under Constitution?
13. Freedom of Speech –what is the freedom? What is speech?
14. Nature of Constitutionalism
15. Theories of Interpretation
a. Judges who are strict interpreters -( this is not a helpful phrase for Constitutionalism) def.) –strictly construing the language of the Constitution.
b. Strict constructionist of the Constitution does not mean a division b/t Liberal or Conservative. It looks at the bear language of the Constitution and suggest that good judges limit themselves to that.
· Ex.) Justice Black is a strict constructionist and thus is very liberal regarding the 1st Amendment.
c. Originalist – belief in the original meaning of the language in Constitution as defined by the Framers. They say you can interpret a Constitution provision no more broadly than those who thought about it had in mind.
d. Living Document – say we are not bound by the Framers and that notions change over time. Idea that it should be updated with each generation. Originalist says you have no authority to read a provision beyond the Framers.
Tension b/t Democracy & Constitutionalism (IMPT THEME)


A. Art. III never expressly grants the fed cts pwr to review constitutionality of fed & state laws but there is an understanding that Ct possesses this authority.
B. Art. III: “Fed Cts shall have judicial pwr over “all cases & controversies:”
1. Arising under the Constitution, laws & treaties of the US
2. Admiralty, & maritime juris,
3. Cases in which the US is a party,
4. B/t 2 or more states,
5. B/t a state & citizens of another state,
6. B/t citizens of diff states
7. B/t citizens of the same State claiming lands under grants of diff States
8. B/t a State or citizens thereof & foreign states, citizens, or subjects
C. LIMITS ON FED JUDICIAL POWER Fed Ct are cts of limited juris.
1. They can only rule on things brought before them; judicial authority is not self-induced; Justiciability
2. Congress can limit the cts jurisdiction: Art III restricts access to fed cts on principles of standing, ripeness, mootness, and political quest doctrine; Also limit through statute or Amend Constitution
3. Try & pack the court – appoint judges who agree w/your pt of view
D. Marbury v. Madison – Before Marbury, Parliamentary Supremacy – If a collision b/t Cts & the parliament the parliament prevails. HOLDING:”It is emphatically the duty of the judicial branch to say what the law is.”
1. The Constitution creates regulatory framework & creates principles that can be regulated
2. Congress cannot increase the juris of the fed cts (Article III) i.e. Congress cannot authorize fed cts to hear cases beyond what is specified in Article III & fed cts can’t gain juris by consent.
3. Ct may review acts of Exec & Legis to determine their Constitutionality
4. Established authority for judicial review of legislative acts.

E. The holding in Marbury can be interpreted broadly or narrowly:
1. Most broad – SC has power to rule on constitutionality of everyone – State & federal courts, legislature, executive, individuals.
2. Broad – SC has power to rule on constitutionality of acts of other branches of federal gov’t
3. Narrow – SC has power to rule on constitutionality of acts of Congress
4. Most Narrow – SC has power to rule on constitutionality of acts of Congress only when it pertains to powers of the judiciary
5. Marbury understood to give a limited power of JR (most narrow). Then Dred Scott broadened the scope of JR, interpreting Marbury to give the narrow power (all acts of Congress). But since that case supported slaver, it’s not cited, and Marbury instead is cited. Today, we have the “most broad” interpretation.
F. What Happens When A Statute Is Declared Unconstitutional
1. It may be that it is narrow enough that the Statute is unconstitutional as applied to that case.
2. It is not repealed. It does not go away
3. It means that if someone tries to enforce this statute, the cts are likely to rule against the statute.
4. Only power to ignore what are deemed to be statutes which violate the Constitution
1. Good idea for SC to be the “Final” Arbiter of what is Constitutional?
ii. Good idea – for efficiency. If SC wrong, amend the Constitution.
iii. But, uniform laws may not work for vastly different cultures across the states.
a. Counter-Majoritarian Dilemma – SC not answerable to the people like Congress & Prez, b/c not elected by ppl & hold position for life. So we have a minority telling the majority what to do, which creates a counter-majoritarian dilemma.

1. Written Constitution – It’s important that we have a written constitution. What’s the point of having it if it couldn’t be enforced? Therefore, SC has power of judicial review to enforce it.
a) Prof Criticism – ok, but why the court & not another branch? WHO DECIDES? It’s not clear that framers intended for court to have absolute power of judicial review b/c they gave legislature power to take away court’s jurisdiction over certain cases.
b) Still, if legislature had this power, may be problem b/c self-regulation. But the check would be the general public; we can vote ppl out (accountability).
2. Judicial Role or duty – (textual argument) Court has a role or duty to say what the law is, & when laws conflict to determine which law governs.
a) Prof Criticism – Marshall is lumping the 2 roles of the court together as the same thing. Just b/c there’s power of JR to act as CL court doesn’t mean there is JR to act as a Const’l court. Roles:
I. Interpreting the law (acting like CL courts); fill in statutory gaps. Here, Leg can just go back & make changes (by maj vote) to the law if they don’t agree.
II. Saying what has legitimacy as law (acting like a Const’l court). Here, Leg can’t just change the law, they have to make a const’l change (amendment)
3. Checks & Balances / Separation of powers – (structural argument) if no judicial review, the legislature would police itself – & this means nothing, b/c they do whatever, & just decide it’s const’l. Power must be checked.
a) Prof Criticism – But here the court is doing the same thing. Court deciding how much their power extends, and so is policing itself. So also begs question, who decides?
4. Grant of jurisdiction to Judiciary in Art III – (textual argument) Art III, § 2 grants the court power of judicial review to hear cases arising under the Constitution. So there’s an implicit grant of jurisdiction, b/c the grant would be meaningless if court couldn’t examine all parts of the constitution when reviewing one part of it.
a. Prof Criticism – Question of statutory interpretation. Art III could also be viewed as a simple grant of jurisdiction – courts can examine the Constitution, but other branches are not precluded from doing so. If Congress passes a law, then means Congress thinks it’s constitutional. Doesn’t mean judiciary has power over another branch to tell it what to do.
5. Judicial Oath to the Constitution (textual argument) – Art VI, § 3 requires judges to take an oath to uphold the constitution. So they must rule on the constitution, b/c they’d be disobeying the oath if they ignored it.
a. Prof Criticism – Every federal employee takes that oath – doesn’t mean they have this power. So this cannot be the source of the power.
6. Supremacy Clause – Art VI, § 2 requires that an act of Congress be made in pursuance with the Constitution, b/c it is the supreme law of the land. So if inconsistent with Constitution, then legislation is void. For there to be federal preemption under the supremacy clause, there has to be conflict between state & federal; if no conflict, then have to comply with both.
a. Criticism – Yes, but WHO DECIDES? Still doesn’t answer why the judiciary gets to.
1. Structural Argument – certain things implied b/c of the structure of the gov’t set forth in Constitution. Problem here is that you have to be skeptical about what’s implied – might go too far.
2. Textual Argument – rely on the text. Problem is there’s a lot of room for interpretation.
3. Framer’s Intent Argument – look at the legislative history. Problem is that this is hard to define. Framers had diff ideas, and they voted, etc. So whose intent should govern? Also, some things were not contemplated back them (air force).
4. Argument of Original Understanding – Public’s understanding at the time it was written. Ppl wrote books/articles about what they thought it meant; Dictionaries from the time of what things meant.
a. The dead hand problem, we have changed/evolved. Only white men had a say when Constitution adopted, & we would be stuck with how ppl understood it 200 yrs ago. Go back to see how understood – but look at overall purpose of ho gov’t was established. Constitution formed during time of heightened political awareness, public now not as aware.
5. Consensus Interpretation – Today’s majority. The Congress is the majority consensus, not judicial review.
a. Problem – Ppl not really aware of this stuff today; but ppl back then had a heightened awareness of political issues. Also, this is contractual – we decided, as a country, by super majority, back then, and we shouldn’t change that unless we get another super-majority. Need a fixed point of agreement.
6. Judicial Precedent – Stare decisis. Court already decided how it’s interpreted, shouldn’t change that. We’re relying on what the gov’t has always said.
7. POLICY Argument – Constitution must embody good policy & promote justice. Problem is who decides what these fundamental values are. Judicial review – the court decides. Problem is they don’t represent the majority. They have own bias; decide what’s fundamental b/c of what they believe.
8. Functional Argument – argument of necessity.
9. History – rely on historical practice/precedent. Since no one questioned it, must have been right. Problem is that just b/c they’ve been doing it all along doesn’t make it right. May have been wrong to begin with.
1. The Exceptions Clause – Art III, § 2 – says that SC’s appellate jurisdiction is “subject to such exceptions as the Congress shall make.”
2. Art III also says judicial power vested in Supreme Court, & in “such inferior courts as the Congress may from time to time ordain or establish.” So Congress has power to create lower federal courts.
a. Congress has never given lower federal courts the max jurisdiction that Constitution allows. It has always imposed limits on the appellate jurisdiction of the SC. Limits on SC jurisdiction largely to protect SC from being swamped with cases
b. But sometimes Congress will impose limits b/c they didn’t like what the court did. Only way to overturn SC decision is to amend the constitution – this is very hard to do. So, instead, Congress can limit jurisdiction of SC (to not hear certain cases). These are called “jurisdiction-stripping bills.”
3. Ex Parte McCardle – is the leading case on the stripping of SC jurisdiction. McCardle held by military authority under the Military Reconstruction Act, for publishing articles deemed incendiary & libellous. McCardle not in the military. HOLDING: Ct not allowed to hear case b/c of Exceptions Clause.
a. IMPT TAKE AWAY: You have to have a statutory basis for appellate juris in the US Supreme Ct to have your case heard
b. TWO STEP ANALYSIS: 1) Did Statute give you juris? 2) If it did, is that statute consistent with Article III? 2A) If not then your case is out
K. DISCRETIONARY REVIEW – Have to apply for writ of certiorari for SC to hear your case. SC will decide only those issues whole resolution will have immediate importance far beyond the particular facts and parties involved. Reasons for granting certiorari: Disagreement between holdings in various courts; or if 1 court diverges significantly from accepted & usual course; If State Ct decision conflict with another state or federal; When a state or fed court has decided an important matter of law that should be decided by SC, or has decided a federal question in a way that conflict with the SC precedent


1. Art III – Fed judicial power extends only to cases & controversies. Therefore, Cts precluded from giving advisory o

POLICY: To ensure separation of powers
3. SIX PART TEST (In determining which questions are “political” in nature.Baker v. Carr)
i. Textually demonstrable constitutional commitment of the issue to a coordinate political department;” as an example of this, Brennan cited issues of foreign affairs & executive war powers, arguing that those cases= “political questions”
a. Looking at text of Const to see if the task that has been called on by the ct to decide or has it been given to someone else.
ii. A lack of judicially discoverable and manageable standards for resolving it;”
a. Are there rules or legal principles which would/could turn to decide this case. If not, then this is a reason to deem this political & not judiciable.
b. Is there some reason to defer –overarching power to defer to Federal gov’t
c. In order to meet JMS – there has to be no clearly understood rule & some reason it would be bad for the court to put in place a rule. ( THIS IS THE WIDELY ACCEPTED VIEW)
iii. The impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion;”
iv. The impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of Gov’t;
v. An unusual need for unquestioning adherence to a political decision already made;
vi. The potentiality of embarrassment from multifarious pronouncements by various departments on one question.”
4. Massachusetts v. EPA Several States seeking to get the EPA to enforce the Clean Air Act, claiming that the EPA had juris to force its provisions to limit global warming. EPA said it didn’t have juris & there was not standing to pursue this case. Supreme Ct said there was pwr of EPA to regulate & that standing was appropriate. Relevance: Kennedy moved to the majority that with statutory standing there is no bar if the injury is very widely shared by many people. When you look at causation it is enough that what you are asking the gov’t to do has impart been concerned with the injury & impart remedy it. Rejects the limitation on statutory standing in Lujan. Kennedy would still say there still has to be some injury.
5. What is diff b/t Political Question Doctrine & Standing?
a. Standing – is asking whether the litigant has a sufficient amt at stake that its constitutionally acceptable to trigger the judicial power. Primarily a party-based inquiry.
b. Political Question Doctrine – is whether the issue is one that the court can deal with. You are not focusing on the stake the litigant has, you are looking at the job, one which is for the courts or is it one we will characterize as political. Is this duty which provides the basis with this lawsuit charged to someone else in our Constitutional structure that courts authorized to deal with? Here you are focusing on the legal standard & the cause of action and asking is what the P’s want the judges to do entrusted to someone else beside judges.
6. Baker v. Carr – Apportionment of reps never changed even though population increased. Same # of reps for 2 towns, even though one has higher population. Higher populated town says their power is diminished. Court says it’s not a political question b/c there is a standard to apply – the Equal protection clause. Court defines standard as one man, one vote.
a. Should the court have gotten involved in the apportionment of state legislatures?
i. No – this is legislature’s duty. Ppl elect legislature, so it’s their duty.
ii. Yes – Ppl’s vote is being diluted here & they can’t do anything about it. If court doesn’t get involved, will never change.
7. Exclusive Textual Commitment (Classical Rule) – Constitution gives jurisdiction to another branch of gov’t. If judiciary were to hear it, it would show disrespect to the other branch, b/c other branch can handle it. Even if court has power to get involved, it won’t.
a. Powell v. McCormack – P elected to House of Representatives not allowed to take seat b/c of fraud allegations. HOLDING: Congress may not in any way alter the qualifications of its members from the exclusive list given in the Constitution (age, length of citizenship, and inhabitant of state where elected). Therefore, “excluding” a Congressman by a two-thirds majority vote is not allowed although the Constitution allows expulsion by a two-thirds vote.
b. Nixon v. United StatesHouse of Rep impeaches Nixon, a district court Judge. Senate invokes its own impeachment rule, and creates a committee of senators to receive evidence & take testimony, and then presents this to entire Senate to decide. Senate votes Nixon out of office, and he argues that the impeachment rule violated constitution b/c it prohibited entire Senate from taking part in the evidentiary hearings. HOLDING: Ct says Nonjusticiable b/c it’s a political question. Up to Senate to decide impeachment process b/c they have sole power to try all impeachments. Prof says: Court, by saying it’s a political question, is basically saying what Senate was constitutional. If Senate behavior was egregious & unconstitutional, SC would have intervened. So really decision on merits – it’s constitutional
c. Two Classic Cases Which are Political Questions: 1) Impeachment 2) Election Dispute for President –this is handled by the Electoral College.
8. Finality (Prudential Rule) – there’s an overriding need for finality over a decision already made by another branch of gov’t. Ct shouldn’t 2nd-guess another branch b/c there’s this need for finality.
a) Goldwater v. Carter – Pres wants to terminate a treaty; Congress says no & since you need ¾ Congress to pass a treaty, can’t do it w/o Congress. 4 justices said political question b/c no standard – the Constitution only says how to make a treaty, not how to get rid of it. Powell (concurrence) decides the case – says not a political question, but rather nonjusticiable b/c of prudential considerations – not ripe/ready for judicial review. Dispute b/t Congress & President is not ready for judicial review unless & until each branch has taken action asserting its Constitutional authority. POLICY: So that others are not encouraged to seek judicial resolution of issues before the normal political process has the opportunity to resolve the conflict.
Baker v. Carr – 3 Part Inquiry
1) Does the issue involve resolution of question committed by the text of the Constitution to a coordinate branch of gov’t?
2) Would resolution of the question demand that a ct move beyond areas of judicial expertise?
3) Do prudential considerations counsel against judicial intervention?