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

Constitutional Law
Prof. Gerhardt
Spring 2011
The Power of Judicial Review:  Foundations for the Supreme Court’s power of judicial review
Judicial Duty – It is the duty of the judicial department to say what the law is, because those who apply the C to particular cases must of necessity interpret it.  Structural argument
•   If a law is in conflict with C, court must determine which of these conflicting rules governs the case.
•   “It is emphatically the province and duty of the judicial department to say what the law is”.
•   Text of Article III: The Supreme Court has explicitly been given the authority to decide all cases arising under the Constitution.  Textual argument
•   Structure: The C gives direction to the courts as well as to the legislature, and these directions are listed separately.  Need to maintain system of checks & balances.  Structural argument
•   There must be some authority to enforce these provisions. That authority seems to be the courts.
•   No ex post facto law: A law passed after the act that makes it criminal. This is a specific restriction on Congress, who has the authority to pass laws. This is also a restriction on the courts.
•   The Supremacy Clause: the C establishes itself as the supreme law of the land.
•   Any valid federal law trumps a conflicting state law.
•   Why should the courts defend this more than any other branch?
•   The oath justices take (imposed by the legislature) is to uphold the C.  Textual argument
•   This is the same oath that the President and legislature take, though.
•   Written-ness – the very fact that the C is written.  Textual and structural argument
•   For there to be any value in written text, there must be someone with power to enforce it (i.e., SC).
•   If you don’t live by what is reduced to writing, the whole act of writing becomes meaningless. The court must hold everyone to what is written, otherwise what is the point of writing it down?
But, why does this have to be the judicial branch’s duty? It doesn’t necessarily have to be.
Marbury v. Madison (1803):  THE SC HAS THE POWER TO DECLARE LAWS TO BE UNCONSTITUTIONAL.  Where the C of the US, as interpreted by the SC, conflicts with laws enacted by the congress, the SC may declare such laws UnC and invalid.  Established judicial review, & increased SC’s prestige & power.  Marshall’s first opinion, & the first unified opinion issued by SC. Marshall is able to look objectively at his actions as Sec. of State, and establishes that the job of a justice is to protect C. 
Marshall asks three questions:
1.  Has the applicant a right to the commission?  Yes: vested legal rights based on how commission was issued.
2.  If his right has been violated, do the laws of the country provide a remedy? Yes. Where there’s a right, there’s a remedy. But:   Not every right is a vested legal right.
•   If it’s a matter over which political authorities have complete discretion, there is nothing for court to do. They are subject only to public oversight. There is no legal remedy, and their acts are only politically examinable & politically restrained.
•   If it’s a matter over which political officials do not have complete discretion, it is something the court can review. Political authorities do not have discretion over whether or not legal rights are enforceable – legal, not political, question.
3.  In this case, is there a legal remedy?  No. Marbury is not entitled to remedy he asked for (writ of mandamus). Its an unusual remedy – although not specified, its assumed that natural, usual remedies were only ones available to SC in original jurisdiction.
The court gets their powers from law in two places:
1.  The C – Article III enumerates the Court’s original jurisdiction
•   For suits “affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party”.  The only way to expand the original jurisdiction of the Supreme Court is by Constitutional amendment.
2.  A federal statute (Article III of C grants Congress the power to make regulations for the Supreme Court’s appellate jurisdiction)
•   Even though SC is only court where this case could be brought, SC does not have the power to issue a writ of mandamus.
•   Marshall read Judicial Act (gives courts power to issue writs of mandamus) as an attempt to expand SC’s powers of original jurisdiction, which is not allowed by the C.
•   Congress can only add to the appellate jurisdiction of SC by statute – can’t touch the original jurisdiction of SC by statute (only by Constitutional Amendment).
•   SC only has the power to issue a writ of mandamus in cases over which it has appellate jurisdiction. This is not a case of appellate jurisdiction.
•   If SC could issue this, 1 high-ranking official in one branch would be telling a high-ranking official in another branch what to do, which is irksome to Marshall.
•   Executive powers are not to be interfered with by SC, although Marshall acknowledges it might be appropriate for SC to issue a command to executive branch with regards to non-political actions.
•   Marshall asks this question last because it would have finished the argument before he could have made any of his points.
Grounds for SC review of state cts.  If a fed. treaty is inconsistent with state law, fed. treaty wins – Supremacy Clause.
1.  Reasons for granting Supreme Court review:
•   Uniformity of laws – judicial review promotes uniformity of interpretation of federal law. Otherwise, the federal law could be interpreted 50 different ways by 50 different states and would not essentially be a federal law.
•   Finality – ultimate authority must rest somewhere, otherwise there is continuing uncertainty regarding what the law means.
•   No bias – this argument could be the most contestable. C presumes that in the absence of a SC, state courts are elected and therefore they may represent state-held preferences and biases.
•   State courts hate federal authority (Martin v. Hunters Lessee), and do not believe it can tell them what to do.
•   State courts are prone to making decisions according to what will get them reelected, and are thus sympathetic to their own citizens (and might be hostile to people from other states).
•   Federal court, by design, is not subject to the will of the majority because federal judges are appointed and serve during good behavior and cannot be removed.
•   Expertise of federal judges – federal courts deal with questions of federal law all the time, and state courts do not.
2.  Political reprisals for Supreme Court decisions that states don’t like
•   Constitutional Amendment:  It’s hard to amend the C, but its very effective when it can happen
•   4 Supreme Court decisions have been overruled by Constitutional Amendment
•   11th – prevents states from having to pay civil damages.  13th, 14th, 15th – overruled Dred Scott
•   Impeachment:  Federal officials can be impeached for treason, bribery, and other “high crimes and misdemeanors.”
•   Not really a way to remove SC justices because you don’t like their (partisan) decisions.
•   Judicial independence
•   Judges have to be allowed to make mistakes. They have to know that they have this freedom or they will be paralyzed. Justices don’t do anything on their own (5 = majority opinion).
•   Nominations and confirmations:  President can change the direction & composition of courts with nominations, one of the most significant political checks.
•   Jurisdiction – Congress has power to regulate appellate (not original) jurisdiction of federal courts & what cases they hear.
•   Comes with authority to create, establish, or disband courts. The number of seats on SC is a function of Congress.
•   Controversial, but Congress can use things like §1332 amount in controversy to limit Jx.
•   Funding – up to Congress to fund SC. They cannot diminish compensation, but it does not follow that they must increase it.
•   Under-enforcement – President can choose to withdraw enforcement from a decision that he doesn't agree with, and enforce that principle or position less.
3.  Other checks on the Supreme Court
•   Passive Virtues (Alexandar Bickel)
o   Self-restraint:  It is virtuous for the court to internally restrain and limit it’s own power.
o   Avoidance Canon:  SC will avoid C questions whenever possible, and when pressed to answer, decide issues narrowly.
o   Political Question doctrine: certain questions arent up to SC to decide, ie “What is a war?” & “Who can Prez nominate?”
•    Grand Theory of C Law:  if you consistently interpret the C in a very principled manner, certain issue will be avoided.  Relies on

is saying it’s trying to achieve one thing when in reality it is trying to achieve something else, the court should step in. Pretext raises a few issues:
•   You can look behind the law to determine whether or not it is really being enacted for the purposes Congress says it is, by looking at leg. history, context, motives, etc, but it may be very easy for Gov. to hide its true motives.
•   Criticism:  the search for pretext itself is misguided, making the judiciary an interfering agent, giving them power to intrude to look behind the laws
Federalism: Suprm’y Clause sets up hierarchical relationship between Feds & states-declares fed law superior to state law.
•   Default rule:  resolve all ambiguities in favor of Feds, because Feds represent a creation of people of the US as a whole (not divided up into states).
•   The last Federalist justice was John Marshall, and he manages to perpetuate Federalist ideas in the court long after the party was dead (counter-majoritarian?).
•   10th Am: reserves zone of authority to states. Debate over whether judiciary should invalidate laws infringe that zone.
McCulloch v. MA (1819):  NECESSARY AND PROPER CLAUSE GIVES CONGRESS IMPLIED POWER TO INCORPORATE A FEDERAL BANK.  The N&P clause gives Congress the implied power to incorporate a national bank b/c if the end is legitimate, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited but consist with the letter & spirit of the C, are constitutional.
MA wants to tax the national bank located in its territory.  National banks were a HUGE issue then.  This case is not just about a bank, its about federalism.
•   Representation Reinforcement: The court decides this is unconstitutional, b/c it is unfair to allow a state to regulate those who have no representation in the state (the national bank was subject to all Americans).
Marshall established that he was going to read C in a way that would ensure the fed gov. is a vigorous, powerful institution.
•   In Articles of Confederation, states retained all of their authority, unless some power had been expressly given to feds. In 10th amendment, word “expressly” disappeared. So we are dealing with an omission. But, in C, which replaced Articles, there is no mention of a national bank.  Realize this is an either/or situation – either FEDS or STATES get power (plus lots of implied power in C).
Questions Marshall asks:
•   (1)  Does Congress have the authority to create a Bank of the United States? Once it is established that Congress has authority to create the bank, it is easier to explain why states cannot tax or regulate it.
•   (2)  Is the state tax on the bank Constitutional?
Arguments Marshall makes:
•   Historical Practices: This has been considered by every President and Congress ever.
•   The first Congress was made up of of people who were really smart and intimately connected with the creation of C. These people believed that a national bank was constitutional, and we shouldn’t overlook this belief easily.
•   Sovereignty:  It was people who ratified the C, and thus the people are sovereign, not the states.
•   Text: The C should not be read like a statute.
•   Not as a code of laws, but as a general framework for how government should operate. It doesnt enumerate every power it granted at time of writing. That would be like tax code – public wouldn’t understand. It was important to Marshall for public to understand the C.