What is a Constitution? What is Constitutional Law?
· Constitutional law is “supreme law” – trumps lower laws (supremacy clause)
· Constitutional law is durable – harder to change the text
Text and History of the Constitution
What were the framers reacting against?
· State Legislatures: Madison thought they were vicious (protectionism, etc.)
· Think commerce clause-type violations
· Different approaches to bankruptcy (Madison was opposed to liberal bankruptcy law)
· Articles of Confederation:
· couldn’t restrain state legislatures
· didn’t have power to lay taxes
· no clear provision for raising a national army
· couldn’t prevent states from engaging in their own foreign policy initiatives
· difficult for national government to make a binding treaty
· no national policy towards Indian tribes
· British system (“no taxations w/o representation”)
· Federalists: believed in strong government
· Jeffersonian republicans: supportive of states-rights
How Does the Constitution Approach these Problems?
· Targeted substantive solutions within the Constitution
· Laundry list of specific grievances that grants specific powers to the national government (i.e. collect taxes, borrow money, regulate commerce, uniform rules of naturalization, coin money, uniform bankruptcy law) (Art I, §8)
· Specific prohibitions on the states: entering into treaties, coin money, pass bills of attainder, ex post factor law, engage in war, etc (Art I, §10)
· Full faith and credit to public acts, records, and judicial proceedings of other states (Art IV, §1 – Full Faith and Credit clause)
· Assumption of debt under Articles of Confederation (Art VI)
· Structural solutions for matter we cannot predict
· Federalist 51 (Madison): lays out the basic argument for separation of powers
· Reflects Madison’s Hobbesian view: “If angels were to govern men, no external controls on government would be necessary.”
· Madison distrusted politicians as ambitious, and feared the “tyranny of the majority”
· Therefore wanted a federal negative on all state laws, or alternatively a Council of Revision to look at prospective state laws
· Notes from convention show that these were seen as too extreme, and that the delegates thought the judiciary would take care of state laws
· What we ended up with – bicameralism and presentment – shows the libertarian underpinnings of the Constitution’s structure
· Textualism: finding meaning within the four corners of the Constitution
· Originalism: look to intent of framers
· Formalism: adhere to identifiable categorical labels (as opposed to functional which are more flexible)
· Deference: judiciary will often defer to the interpretation of the “political branches”
· Don’t want to waste time of judiciary
· Don’t’ want to interfere with other branch’s execution of their function
· Judicial restraint: unelected judges (question of competency to hear issues)
· History: the effect of social change, etc. (and the effect on social change, like Brown)
· Look at history at time of Constitution’s ratification
· Look at historical development of the Constitution
· Empirical Evidence: administrative/Congressional findings, etc.
The Supreme Court and Judicial Power
The authority of the US Supreme Court to interpret the Constitution and invalidate unconstitutional acts by other branches of government
· Marbury v. Madison(1803)
· Facts: Pres Adams appoints Marbury as Justice of Peace shortly before leaving office but his Sec of State, Marshall, does not deliver the commission. New Pres Jefferson tells his new Sec of State Madison not to deliver the commission. Marbury petitions the court to force Madison to deliver the commission (issue a writ of mandamus).
· 1. Did Marbury have a vested right to the job? YES
· 2. Did Marbury have a right to have this right enforced? YES
· 3. Does the S.Ct. have the power to issue a write of mandamus? NO
· Supremacy of Constitution: If SCOTUS identifies a conflict b/w a constitutional provision and a congressional statute, the Court has the authority to declare the statute unconstitutional Constitution Controls
· Judicial Power: It is the province of the judiciary to say what the law is
· The court, not the legislature, determines whether an act of Congress is in conflict with the Constitution
· What kind of authority did Marshall rely on (re: Constitution controls)
· Theoretical arguments talked more about what might have happened if Const didn’t control
· Something special about a written constitution and that it should sit higher than other legal texts
· Cooper v. Aaron (1958)
· Facts: Governor of Arkansas refused order to desegregate Little Rock schools after Brown. Claimed he was not bound by SCOTUS decision in Brown b/c Ark was not a party to the case
· Everyone is bound
· Federal judiciary is supreme in its interpretation of the Constitution, and every state legislator and executive and judicial officer is committed by oath to support the Constitution
The scope of the US Supreme Court’s authority
· Martin v. Hunter’s Lessee (1816)
· Facts: Two parties make claim on land. Hunter says he got land from a VA state program (state took it from Fairfax). Martin says he got it through a will from Fairfax
· Peace Treay of 1783 and Jay Treaty of 1794 says people that owned land get to keep their title (so Martin could have gotten land from Fairfax)
· State’s argument: since suit started in state courts, it is up to the state court to say whether state action violated the federal Constitution
· Issue: Is SCOTUS constitutionally authorized to review the constitutionality of state court decisions?
· Holding: Yes. (J. Story)
· SCOTUS can review the constitutionality of a decision by a state’s highest court but only to the extent that the decision was based on federal law.
· Sovereignty: Virginia argued that it was sovereign, and that the federal Const cut back on state sovereignty. Story says there was no reason to presume that state judiciaries were immune from constitutional limitations.
· Uniformity: Each state can’t be interpreting the Constitution.
· Cohens v. Virginia (1821)
· Expands Martin (which held that SCOTUS could review state civil cases)
· SCOTUS has right to review state criminal cases when the Constitution is involved.
· Nixon v. United States(1993) (Limi
ssary” here means useful or desireable, not necessarily essential to achieve a goal
· Necessary & proper clause is in Art 1 §8 which expands Congress’s powers, not Art 1 §9 which limits them
· No. Maryland can’t tax the Bank of the U.S.
· “power to tax involves the power to destroy; and that the power to destroy may defeat and render useless the power to create”
· States can’t interfere with federal activities
Art I, §8: “The Congress shall have the power…[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes…”
· Commerce Clause History
· Initially – expansive view under Gibbons
· Late 19th century – 1937: much narrower construction of commerce power; much invalidation of federal laws as exceeding scope of commerce power
· Conservative court during these years – opposed to gov’t regulation
· 1937-1995: not one federal law declared unconstitutional under Commerce Clause (commerce power more expansive)
· 1995 – present: Court declares some federal laws unconstitutional under the Commerce clause (Lopez and Morrison)
· Questions asked throughout history of Commerce Clause
· What is “commerce?”
· Is it just one stage of business or does it include all aspects of business and even life in the U.S.?
· Under Gibbons: “commerce” means all phases of business, including navigation, which was the issue in that case.
· Late 19th c. to 1937:
· “commerce” was narrowly defined (so as to leave power to the states)
· “commerce” defined as one stage of business distinct from earlier phases like manufacturing, mining, production
· Kind of inconsistent – more likely to strike down federal economic laws, but not moral ones
· “commerce” includes mining, manufacturing, production (no distinction b/w phases of business)
· What does “among the several states” mean?
· Does it mean any effect on interstate commerce or does it have to be a direct effect?
· Under Gibbons: “intermingled with” – does not “stop at the external boundary line of each state but may be introduced into the interior.”
· Late 19th c. to 1937: Congress could regulate only when there was “substantial effect” on interstate commerce
· After Wickard: “substantial effect” not necessary for individual or entity– just the cumulative effect must be “substantial” on commerce.
· Does the 10th Amendment limit Congress’s commerce power?
· Under Gibbons: no.
· Under Hammer: yes.
Late 19th c. to 1937: yes, 10th amendment reserves a zone of activities to the state and even federal laws w/in