Constitutional Law I Outline

Constitutional Law- Chinn- open note exam

Marbury v Madison- President Madison appoints Marbury as Justice of Peace in his last days to preserve Federalist party political clout as allowed by new legislation passed by congress to lessen power of incoming president. Appointments are made, but commissions are not sent by the time(Marshalls brother) Jefferson becomes president who refuses to send. P sues to make president send out commissions.

-judge Marshall concludes “It is emphatically the province and duty of the judicial department to say what the law is”=Sup Ct has right to declare invalid a law that contradicts constit. 1st time Sup Ct voids fed law

Issues:

Does Marbury have legal right to the commission? Yes, as vest when appointment is signed by president and not when mailed. Withholding office is violation of his vested rights.

Since Marbury’s right has been violated, does he have legal remedy? Yes, Law must uphold irrevocable appointed officers as commission is subject to legal obligation.

“…remedy for violation of a vested legal right.”

“..must be tried by the judicial authority…”

Reason for legal remedy.

a) Exec actions that emanate purely from presidential authority/discretion should be kept pure and ct should NOT intrude. (foreign affair, natn’l security= pure exec)

b) Exec actions not entirely political/pure, then exec discretion should be have legal limitations and obligations. (ministerial act to deliver paper not pure exec power)

Is Marbury entitled to remedy he applied for (Mandamus)?

Is he entitled to specific remedy of mandamus (yes)

Is he entitled to mandamus from sup ct (ct can issue via appellate, but not in orig jdx)- NO

– sup ct given right to issue mandamus via Section 13 the judiciary act of 1789 BUT sup ct finds act unconstitutional via Art III so cant issue to Marbury.

step 1. Ct jdx- Art III say where ct has original jdx, all other cases appellate.

3 interp of Article III

1. read as floor(legis can add, but not subtract)(orig & app jdx may overlap)

-if use this interp then 1789 act , as is adding jdx, is OK.

2. read as ceiling (congress cant add, but can take away jdx)

-if interp w- ceiling, then 1789 act , if adding jdx NOT ok.

3. Read as both floor and ceiling (set upper and lower bound- Marshall)

-1789 NOT ok, if add/subtract orig JDX. Congress cant add or subtract as then Art III words are superfluous/no meaning. Why would constit say which cases w/in jdx if congress able to adjust. (expressio Unis).

-as judiciary act of 1789 adds to original JDX (issue mandamus) and rigid view of Art III, sec 2 says congress lacks power to adjust original jdx, 1789 act is Unconstit

Therefore ct has NO JDX to issue mandamus under orig JDX.

ART III § 2(2): In all Cases affecting Ambassadors public Ministers, and in which a State is a Party, the Sup Court shall have original JDX. In all the other Cases before mentioned, the Sup Court has appellate JDX, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

step 2. relation betwn appellate & orig jdx of ct-

Sup ct power- has to be one or the other, never can be both.

Appellate jdx- matters being heard on appeal from other courts

Original jdx- matters heard for 1st time. Marshall sees Art III as floor and ceiling on Sup cts orig power.

Main Marshall Arugments

1. Art III is both a floor and ceiling-

Expression unius est exclusio alterius- as Art III sec 2 enumerates cases of orig jdx, must assume it is excluding all other cases. As issue mandamus no fall w/in Art III orig jdx, it must be appellate.

-original & appellate powers DON’T overlap. Case is appellate or orig, but not both.

-Granting power to issue writs in cases under 1789 section 13 = new grant of orig jdx, which therefore unconstitutional as congress cannot add power to ct.

Counter- 1 floor & ceiling intep NOT correct (doesn’t limit congress to add- just a floor)

2. Act just empower ct to issue mandamus as ct already has jdx to do so.

Counter- Marbury would have lost anyway as too much political pressure and political suicide for cts would use any way to void (poltical Q, time of vesting).

2. “It is emphatically the province and duty of the judicial dept to say what the law is”

-Marshall reserving right of ct to deem if law is constitutional (never said exclusive right). If congress can render constitution meaningless- legis has unlimited power.

– power for ct to hear cases under constitution implies the right of judicial review.

-Judges are duty bound to apply constitution. Cant uphold constit if allow conflicting laws to exist.

Counter- congress members talk constit oath too.

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Marshall was Judicial Statesman- “a masterwork of indirection, capacity to sidestep danger and advance in one direction while his opponents are looking in another” – Robert McCloskey

-b/c his ruling ended up on the right side of history.

legitimacy is: timeless/objective (ruling was always right/wrong) or

relative/historicized (decision was right/wrong based from time it was made)

Marshall was partisan Hack- General counter- Ordering of the opinion- could start/end w- jdx conflict.

-Political strategy, saved jdx for last to be able to secure judiciary power and chastise Jefferson.

-simply a soapbox too afraid to uphold law. (self preservation- of ct power)

-could have dealt by saying commission didn’t vest until delivery, or as Political Q, or just JDX issue

Topics and arguments:

Textualist argument-use of expressio unis in interp constit. What NOT written in constit assumed excluded

Prudential argument-acknowledging political “peculiar delicacy of the case” and “gov’t of laws, not of men.”

Ethical argument- Judicial review is best way to ensure separation of powers

Judicial authority/Supremacy based on Marshall’s opinion:

Modest- judicial function requires the ct to be AN interpreter the Const. (McCulloch view)

1- Marshall never said it was exclusive duty to interpret, but A interpreter.

2- legis also required to interpret in order for them to engage in lawmaking

3- argues supremacy of constitution, and not supremacy of cts

Robust- the judicial function implies sup ct is THE supreme interpreter.(Beyond Judicial review)

-Judges are legal scholars, need one clear definition that other branches follow. (Martin)

middle ground, President or congress acting on their own vision of the constit.(reality)

Departmentalism- ct can interpret the constit, but other branches allowed to make independent constit interp. (Lincoln defying ct order to release a prisoner) (Boerne) (president and congr can seek to overturn ct ruling)

Counter- Of indep with checks and balances, One party needs supremacy or else can have conflicting views simultaneously existing.

Cooper v Aaron- 1958- Fed District court ordered desegregation and Arkansas disobeyed. SCOTUS used Art VI and Marbury to affirm. Arguably goes further than Marbury – and applies “robust version” instead of Marshall’s “modest version” of judicial review.

Martin v Hunter’s lessee-Story-VA passes law confiscating land of foreigners against treaty terms not to. Sup ct says VA law unconstit. Affirms fed supremacy over state to keep uniform decisions. VA claims Sup Ct doesnt have authority to review state issues AND Sup Ct lacks appellate JDX over constit decision of state ct

-VA argues fed can enact removal statute for unfair laws (counter- hard to maintain/workload)

Power of fed court to review state court decision- Story uses Art III plus supremacy clause

Art III. Textual argument: If Constit meant to limit appellate jdx, would have expressly stated so.

– Article III would have no meaning if SCOTUS couldn’t hear lower court rulings

Supremacy Clause- where state laws intersect Fed law or constitution, Fed law is supreme.

-Constit is “supreme law of land,” (Art VI) it trumps all other law.

Combined effect- Art III didn’t mean to limit app jdx and if constit trumps all other law and ct duty to uphold, then must have app jdx as fed and state will intersect.