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Constitutional Law I
University of South Carolina School of Law
Crocker, Thomas P.


Professor Thomas Crocker

Spring 2014

Modalities of Constitutional Interpretation:

1) Appeals to text

2) Structure of Government

3) Prudence (or consequences)

4) History

5) Precedent

6) National (or narrative) ethos – ethics (national unity and common good)

7) Popular Constitutionalism

Constitutional Interpretation

The Marshall Court

Marbury v. Madison – Established judicial review of acts by other branches of government

Article III: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the Supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.


Court claims the power to tell executive what to do, but does not exercise it

Court claimed the power to issue writ of Mandamus telling president to give Marbury his appointment.


Supremacy of the Constitution

Because of the conflict between the Judiciary Act of 1789 which sought to expand SCOTUS’s original jurisdiction beyond what was granted in Article III, the court decided that the Constitution should be held to a level above that of a normal statute issued by Congress and should not be so easily changed; that it is the original and supreme will of the people.

Marshall’s rationale is that a constitution is meant to place limits on Congress, so if Congress is free to exceed those limits by passing laws that violate the Constitution, then what is the point of having a constitution at all? p115

Judicial Review

Oath to uphold the constitution above all else

Implications of Unchecked Power:

(1) Without judicial review, Congress would have too much power.

(2) Structural

Art. III: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States . . .

(1) Gives judiciary jurisdiction over constitutional matters

(2) Textual

Art. VI: Supremacy Clause.

(1) This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

(2) “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.” – Marshall


Stuart v. Laird

Earlier court decision regarding the constitutionality of abolishing the circuit courts, meaning that judges would have to start riding circuit again.

The court decided to cave to Jefferson’s purge of the courts, but in the later case of Marbury v. Madison, they stood up to executive and congressional overreach.

Martin v. Hunter’s Lessee – D.C. lottery tickets being sold in Maryland

Established SCOTUS’s judicial review of state court decisions.

Uniformity of interpretation – guard against legal balkanization. Unity of federal law across entire union.

Guard against state bias.

Fletcher v. Peck

Established SCOTUS’s Judicial Review of state statutes.

McCulloch v. Maryland: Necessary and Proper case, bank Congress wants to charter a bank. Maryland wants to tax it like faggots. Congress has power to charter bank through Necessary and proper clause because they have the power to coin money and levy taxes and shit like that.

Congress wants to charter a bank, MD decides to tax it inside of MD.

Necessary and Proper Clause gives Congress implied power to charter a bank, despite the absence of an enumerated power to do so.

If Congress has the power to lay postal roads, it has the implied power via Necessary and Proper to pass a law making it illegal to rob the postman.

Similarly, if Congress has the power to coin money, then it has the implied power to charter a bank.

Limitation of Necessary and Proper power:

“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”

Limits: If Congress’s objective is legitimate and within the scope of the Constitution, then legislation is constitutional so long as it is:

(1) appropriate;

(2) plainly adapted to Congress’s objective;

(3) not prohibited by the Constitution; and

(4) consistent with the letter and spirit of the Constitution.

Supremacy Clause gives Congress power to overrule

e of the 14th Amendment was to ensure that States would not discriminate based solely or categorically on race.

Separate But Equal

1) Plessy v. Ferguson

a) Ct declined to strike down Louisiana railroad car segregation law because it was not discriminatory on its face, but instead had secondary discriminatory effects.

b) Ct thinks that discrimination is a political problem, not a judicial one.

c) DISSENT (Harlan)

i) “But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.” p363

2) Giles

a) Ct: racism is a political problem, not a judicial problem. (echoes Plessy)

3) Civil Rights Cases

a) Ct rules that § 5 of the 14th Amendment can only be applied to State laws that sanction discrimination, and that § 5 is not applicable to individuals.

b) Allowed for Jim Crow laws.

c) Still good law: § 5 only affects state legislation, not individual actions.

Economic Due Process (Due Process Clause of 14th Amendment)

1) Lochner – Economic Due Process

a) Actors:

i) The State (police power)

ii) The People (right to contract)

b) NY wanted to limit the bakers’ working hours.

c) Ct: Can’t infringe on the free right to contract when exercising its police power.

d) Bad law: interventionist courts.

i) Court has rejected its reasoning

e) DISSENT (Holmes): Majority is basing its decision on laissez faire economic theory, which doesn’t appear in Constitution. Because Constitution doesn’t embed an econ theory, then states are free to legislate according to any economic theory.