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Constitutional Law I
University of South Carolina School of Law
Powell, Burnele Venable

Chapter 1 – The Federal Judicial Power                                             
-Article III of the Constitution created the federal judiciary and defines its powers:
“the judicial Power of the United States shall be vested in one Supreme Court and in such inferior courts as Congress may from time to time ordain and establish.”
-Marbury v. Madison established the authority for the judiciary to review the constitutionality of executive and legislative acts, even though the constitution does not expressly give them such a power.
a.       Marbury v. Madison (1803) p. 2
FACTS: In the waning days of his presidency, John Adams appointed, among others, William Marbury to the position of Federal judge. Marbury’s commission was not delivered before the new president, Thomas Jefferson, was inaugurated. Jefferson told his Secretary of State, James Madison, not to tender Marbury a commission, despite the order given by the previous commander-in-chief. Marbury, in turn, sought a writ of mandamus from the Supreme Court, directing Secretary Madison to deliver the commission. Marbury’s argument was that he had a vested right in the position, pursuant to President Adams’ order, and that the Judiciary Act granted the Supreme Court original jurisdiction over writs of mandamus such as his.
                                                               i.      ISSUES: (1) Did П’s have a right to their commissions? (2) If so, had that right been violated? (3) If so, was a writ of mandamus the appropriate remedy for violation of that right?
1.       BIG QUESTION: Whether the Supreme Court (“SupCt.”) has the power to review the constitutionality of this dispute. (i.e., what does Art III, §2, cl. 1 mean when it says “The Judicial Power shall extend to all cases arising under this Constitution?”)
2.       HOLDING: The Court actually held that the portion of the Judiciary Act that gave them jurisdiction over this matter was unconstitutional because Congress cannot expand the original jurisdiction of the Court. See Art. II, §2, cl.2 (exclusive list of matters over which SupCt. has original jurisdiction). 
a.       Thus, in a sense, Chief Justice Marshall “punted.” He disposed of the case on jurisdictional grounds, without making a binding decision as to whether Marbury would get his judgeship, but still managed to establish the rule that the SupCt has the power to review the actions of the other branches of the government when the constitutionality of those actions is challenged. This was the real brilliance of Marshall’s opinion. The Court was faced with granting an order that could either be ignored or could cause a constitutional crisis between the Anti-Federalist Congress and the Federalist Supreme Court. Not to grant the order, however, would be a capitulation by the Judiciary.
                                                              ii.      The FOUR themes of Marbury
1.       The Constitution (“CXN”) is the “Supreme Law of the Land” à If there is a conflict between a Congressional statute and the CXN, the CXN must prevail.
a.       “The Constitution is superior to any ordinary act of the legislature; the Constitution must govern the case to which they both apply.”
b.       Rationale: Passing a law in Congress requires merely a majority, whereas amending the CXN requires 2/3 à CXN controls.
2.       The SupCt is the final arbiter of the CXN à It is the Court’s job to state, at any given time, to interpret the laws enacted by Congress.
a.       “It is emphatically the province and duty of the Judicial department to say what the law is.”
3.       Art. III is the ceiling of the federal courts’ jurisdiction à Congress may not expand the original jurisdiction of the Supreme Court.
a.       Art III, §2, cl. 2: “Courts have original jurisdiction in [1] cases affecting ambassadors or other public ministers and [2] those in which a State shall be a party.” Nowhere in there does it say anything about mandamus cases, and Congress cannot add such cases to that list.
4.       Separation of Powers
a.       Legislative vs. Executive vs. Judiciary
                                                                                                                                       i.      “The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written.”
                                                                                                                                     ii.      “The province of the Court is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have discretion.”
-Martin v. Hunter’s Lessee and Cohens v. Virginia were key in establishing the Court’s authority to review state court decisions. 
b.       Martin v. Hunter’s Lessee (1816) p. 9
FACTS: From 1779 to 1785, VA passed laws whereby the state confiscated all lands owned by foreigners. David Hunter was granted 800 acres of confiscated lands that had been willed to Denny Martin Fairfax, a British subject.  Fairfax sued Hunter’s lessee (the guy living on the land at the time) for return of the land. On Fairfax’s death the suit was taken over by his heir, Martin. (Hence, Martin vs. Hunter’s Lessee). Martin argued that Fairfax’s ownership had been protected by treaties between the U.S. and Great Britain guaranteeing British subjects the right to hold land in America. The VA Court of Appeals upheld the grant to Hunter, but on appeal the U.S. Supreme Court voided the grant (1813). The VA court refused to obey the Supreme Court ruling, declaring that it had no right to review the decisions of state courts under the U.S. Constitution. When the case again came before the Supreme Court, Justice Story ruled that § 25 of the Judiciary Act of 1789, which granted the U.S. Supreme Court appellate jurisdiction over state courts in certain situations (as in this case, where a state court denied the validity of a federal statute), was constitutional. His decision affirmed the Supreme Court’s right to review state court decisions.
                                                               i.      HOLDING: The Supreme Court can review Constitution-related decisions from the state’s highest courts in CIVIL cases. 
1.       The Court here stressed the point that uniformity in the interpretation of federal law is desired. If every state were allowed to interpret federal laws (and the Constitution) its own way, the nation might be divided along state lines.
2.       Justice Story persuasively argued that the Cxn presumed that the Supreme Court could review state court decisions: “The Constitution is based on a recognition that state attachments, state prejudices, state jealousies, and state interests might sometimes obstruct, or control, or be supposed to obstruct or control, the regular administration of justice.”
3.       The Supreme Court review of state law decisions is essential to ensure uniformity in the interpretation of federal law. 
c.        Cohens v. Virginia (1821) p. 10
FACTS: The Cohens’ were prosecuted successfully by the state of Virginia for selling lottery tickets from the District of Columbia in Virginia, thereby violating Virginia state law. Cohens’ argued that the holding in Martin was limited to civil cases.
                                                               i.      HOLDING: The Supreme Court can review Constitution-related decisions from the state’s highest courts in CRIMINAL cases. Going back to the uniformity theme of Martin once again, Chief Justice Marshall pointed to the fact that state court judges are popularly elected, implying that they are prone to political influence more so than Federal judges, who are nominated for life.
1.       “State judges are dependent for office and for salary on the will of the legislature.”
2.       The Court declared that criminal defendants could seek Supreme Court review when they claimed that their conviction violated the Cxn. 
d. Cooper v. Aaron (1958)
FACTS: A federal district court ordered the desegregation of the Little Rock, Arkansas public schools. The state disobeyed this order, in part based on a professed concern that compliance would lead to violence, and in part, based on a claim that it was not bound to comply with judicial desegregation decrees.
-Federal Courts also have the authority to review the constitutionality of state laws and the actions of state officials.
-Court declared : “Article VI of the Constitution makes the Constitution the supreme Law of the Land…Marbury…declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the country as an indespansable feature of our constitutional system…every state legislator and executive and judicial officer is committed by oath to support the Cxn.”
3 limits on the federal judicial power:
                1. interpretive limits – how cxn should be interpreted
                2. congressional limits – refer to ability of Congress to restrict fed ct jurisdiction
                3. justiciability limits – refer to series of judicially created doctrines that limit types of matters fed cts can decide
a.       Should the CXN be “Alive” or “Dead”: “Non-originalist” vs. “Originalist.”
                                                               i.      The Originalist View (e.g., Scalia)
1.       Cxn should evolve solely by amendment 
2.       Seek to constrain cts in interpreting the cxn
3.       Ct is justified in protecting constitutional rights only if they are clearly stated in the text or intended by the framers
4.       Judges deciding constitutional issues should confine themselves to enforcing norms that are stated or clearly implicit in the written cxn
5.       If cxn is silent, then it is for the legislature, unconstrained by the courts, to decide the law
                                                              ii.      The Non-originalist View
1.       The Government at the time the CXN was written was far simpler than now, as was the technology and morality of the society.
2.       The “four corners” approach to reading the CXN is dumb because it is but a single document, only a few pages long, which the drafters in no way purported would solve every problem by a simple reading of its text or by somehow ascertaining the intent of its authors.
3.       Desirable for Ct to have substantial discretion in determining the meaning of the cxn
4.       Important that cxn evolve by interpretation not just amendment
5.       So it can evolve to meet needs of a society that is advancing in technology and morally and not remain static
                                                            iii.      EXAMPLE: 2nd Amendment: “A well regulated militia, being necessary to the security of a free State, the rights of the people to keep and bear arms, shall not be infringed” WHAT DOES THIS MEAN? AND WHO SHOULD DECIDE WHAT IT MEANS, CONGRESS OR THE COURT?
1.       The Arguments, in brief
a.       Pro-gun (The “Originalist” perspective)
                                                                                                                                       i.      Any law that infringes one’s right to bear arms is presumptively unconstitutional.
                                                                                                                                      ii.      The drafters chose not to qualify this statement with respect to who should have the right to own a gun, it clearly says “the right of the people” so why should we now try to determine which “people” they meant?
                                                                                                                                    iii.      The amendment was premised on the idea that the government could rise up against the citizens and that, in such an event, the citizens should not be left defenseless. Since this is not impossible, even today, citizens should never be deprived of arms.
b.       Anti-gun (The “Non-Originalist”)
                                                                                                                                       i.      The drafters DID qualify this statement, by mentioning it in the same breath as a “well-regulated militia.” Thus, the drafters meant, “the well-regulated militia, [as defenders of the people], shall have the right to bear arms.”
                                                                                                                                      ii.      Given the checks and balances within our modern government, the likelihood of a modern president creating a dictatorial regime and running amok against the citizens is negligible.
2.       Example: U.S. v. Miller (1939) p. 13
a.       FACTS: Miller was charged with moving a sawed-off shotgun in interstate commerce. Miller had not registered the gun, as is required under the National Firearms Act. Miller invoked his 2nd Amendment rights, asserting that the Act placed an unconstitutional burden on his right to bear arms. 
b.       HOLDING: The court disagreed. They distinguished on the ground that Miller’s “arm” (a sawed-off shotgun) was not exactly what the framers of the CXN had in mind as far as contributing to and being part of a “well-regulated militia.”
                                                            iv.      In the following two cases, still involving the 2nd Amendment, the Court employs what has become a common method for analyzing both the Constitution and individual statutes:
a.       Text
                                                                                                                                       i.      First, the Court construes the wording of the amendment/statute in question
b.       History
                                                                                                                                       i.      If the text is ambiguous, the Court looks to the legislative intent, through Congressional reports.
c.        Structure within surrounding provisions

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
                                                            iii.      What do these mean?
1.       Prof. Brown handout on Jurisdictional Stripping?
2.       Debate centers around 2 questions
a.       What does the lang in Art 3 mean when it says that SC juris exists subject to such “exceptions and regulations” as Congress shall make?
b.       Does separation of powers limit the ability of Congress to restrict SC juris?
c.        Cases – Congressional Limits
                                                               i.      Ex Parte McCardle (1868) p.25 (primary SC case in interpreting the Exceptions and Regulations Clause) à limit Supreme Court jurisdiction
FACTS: McCardle was a newspaper editor in Mississippi arrested and imprisoned for writing some articles that were very critical of Reconstruction and of the military rule of the South after the Civil War. McCardle filed a petition for a writ of habeas corpus (A court order that commands one who has restrained another to produce the prisoner at a court to determine the legality of custody) to the Federal Circuit court in Mississippi. McCardle’s ability to file for habeas was made possible by an Act of Congress adopted in 1867, which gave the Supreme Court appellate jurisdiction “in all cases where any person may be restrained of his or her liberty in violation of the Constitution.” Prior to that Act, Federal courts could only hear habeas petitions from people held in federal custody. McCardle, however, was held in custody by military authority for trial before a military commission, even though he was not in the military himself. But before McCardle’s habeas petition was ruled upon on the merits by the Supreme Court, Congress passed another Act, expressly revoking the appellate jurisdiction for these types of actions that it had previously granted in 1867.
1.       ISSUES: Can Congress strip away this particular type of appellate jurisdiction when it had previously granted it? 
2.       YES – It is true that the Supreme Court’s appellate jurisdiction is granted by the Constitution, but in the same Article, it is made subject to “such exceptions and under such regulations as Congress shall make.” Thus, Congress has the power to expand, and thereafter limit, the scope of the appellate jurisdiction of the Supreme Court. It’s the original jurisdiction that they can’t take away.
3.       “We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this Court is given by express words.”
4.       Opponents of jurisdiction stripping proposals contend that McCardle is easily distinguished from contemporary attempts to prevent Supreme Court review of topics such as abortion and school prayer.
a.       In Mcardle, the Supreme Court was considering the constitutionality of a statute that did not completely preclude Supreme Court review, but rather only eliminated one of two bases for its authority. (pg. 158 in supplement)
                                                                                                                                       i.      Ex Parte Yerger supports this claim à Court held that it had authority to review habeas cases. In light of Yerger, the opponents of jurisdiction stripping contend that McCardle only stands for the proposition that if there are two statutory grounds for Supreme Court jurisdiction, Congress may repeal one of them.  
                                                              ii.      U.S. v. Klein (1871) p. 27à Congress cannot restrict Supreme Court appellate review. 
FACTS: After the Civil War, Congress passed a statute that said, “If your property was seized during the War, you can recover the property, or compensation for its reasonable value, upon proof that you had not aided the enemy during the War.” In a subsequent case, the Supreme Court held that the one could satisfy this burden of proof with a presidential pardon. In response, Congress passed a statute that said (1) presidential pardons are NOT sufficient as proof of loyalty, and (2) a pardon which does not expressly disclaim the guilt of its recipient will serve as proof of outright guilt, i.e., that the recipient DID aid the enemy. The new statute went on to say that, if lower court case was decided in favor of the recipient on the basis of such a pardon, the appellate court receiving the case should dismiss for lack of jurisdiction.
BIG separation of powers questions. First, you have Congress completely diminishing the value of a presidential pardon à Legislative v. Executive. Second, you have Congress telling the Courts how to interpret their statute à Legislative v. Judicial.
1.       HOLDING: Congress may not direct the outcome of a case by prescribing the rule of decision, nor may Congress impair the power and effect of a Presidential pardon.
a.       “It is the province and duty of the Judicial department, not the Legislative, to say what the law is.” Marbury v. Madison
                                                                                                                                       i.      “[Pursuant to the new statute,] the Court is required to ascertain the existence of certain facts and thereupon declare that its jurisdiction on appeal has ceased, by dismissing the bill. What is this, but to prescribe a rule of decision of a cause in a particular way? Can we do so without allowing one party to the controversy to decide it in its own favor? Can we do so without allowing that the legislature may prescribe rules of decision?”