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Constitutional Law I
University of South Carolina School of Law
Patterson, Elizabeth G. "Liz"

Constitutional Law I

Professor Patterson

Spring 2011


I. background

a. also checks and balances, not just being divided, but having mechanisms built-in

II. goals

a. prevent tyranny

b. ensure efficacy

III. post-Articles of Confederation, most concerned with tyranny from state legislatures

a. reason why more checks on legislative branch than executive

IV. Marbury v. Madison

a. *Establishes the authority for the judiciary to review the constitutionality of executive and legislative acts

b. Held: SC could not constitutionally hear the case as a matter of original jurisdiction

c. President John Adams nominated plaintiff applicant and others to the U.S. Senate for their advice and consent to be appointed justices of the peace of the District of Columbia. The U.S. Senate consented to the appointments, and the commissions that appointed them justices were signed by President Adams and affixed with the seal of the United States. The applicant and three others never received their commissions after Thomas Jefferson was sworn in as President. They moved the United States Supreme Court for a rule to defendant Secretary of State of the United States to show cause why a mandamus should not issue commanding him to cause to be delivered to them respectively their several commissions as justices of the peace in the District of Columbia. The Court granted the rule. No cause was shown, and the applicant filed a motion for mandamus.

d. Marbury v. Madison was one of the most famous decisions of the United States Supreme Court in the establishment of judicial review. Plaintiff applicant sought a writ of mandamus to compel defendant Secretary of State of the United States to deliver a commission to him that appointed him a justice of the peace of the District of Columbia. The Court held that the applicant had a right to the commission and that this right was violated. However, the Court held that, to enable it to issue a mandamus, it had to be shown to be an exercise of appellate jurisdiction pursuant to U.S.C.S. Const. Art. III, § 2, Cl 2. The Court ruled that a writ of mandamus to a public officer belonged to original jurisdiction. The Court held that the authority given to it by § 13 of the Act of 1789, which established the judicial courts of the United States to issue writs of mandamus to public officers, was not warranted by the U.S. Constitution. The Court ruled that a law repugnant to the U.S. Constitution was void and that courts, as well as other departments, were bound by that instrument. The Court held that it was emphatically the province and duty of the judicial department to say what the law was.

e. From E and Eà

The principle of judicial review rests upon the crucial assumption that when a court is asked to apply a particular law to the case before it, the court may also look behind the law to determine whether the leg. Had the constitutional authority to enact it

-marbury’s critical assumption that the constitution is to be considered by the courts as “paramount law” has given birth to that vast body of case law that we think of as “constitutional law”

-arguments for judicial review: 1) without it, Legislature would be unchecked as far as Constitutional power 2) certain provisions of the Constitution are addressed especially to the courts 3) Chief Justice Marshall urged that the federal judiciary’s authority to review actions taken by the other branches is supported by Article VI, cl. 3 4) finally relied on Supremacy Claures of Article VI cl. 2, which advises state judges that “this constitution and the laws of the US which shall be made pursuance thereof….shall be supreme law of the land”

V. Cooper v. Aaron

a. Federal courts can also review the constitutionality of state laws and the actions of state officials (SC can do this as well)

b. PROCEDURAL POSTURE: Petitioners, the Little Rock School Board and School Superintendent (school authorities), asked a district court to postpone their program for desegregation mandated by the Brown v. Board of Education decision because of great difficulties in implementing the program. The district court granted the requested relief but the United States Court of Appeals for the Eighth Circuit reversed. Certiorari was granted to review this judgment.

c. OVERVIEW: The school authorities claimed that while they made good faith efforts to implement the desegregation program, the Governor and Legislature of Arkansas resisted the program and enacted laws and took other actions to make implementation impossible. The Court upheld the appellate decision requiring the desegregation program to proceed. The prohibitions of the Fourteenth Amendment extended to all action of a state denying equal protection of the laws; whatever the agency of the state taking the action, or whatever the guise in which it was taken. While one might sympathize with the position of the school authorities, they were in fact agents of the State of Arkansas. Moreover, the constitutional rights of children not to be discriminated against in school admission on grounds of race or color could neither be nullified openly and directly by state legislators or state executive or judicial officers, nor nullified indirectly by them through evasive schemes for segregation. Finally, the Court noted that the Constitution was the supreme law of the land. No state legislator or executive or judicial officer could war against the Constitution without violating his undertaking to support it.

d. OUTCOME: The Court affirmed the judgment of the appellate court.


a. Inherent tensions between separation of powers and checks and balances

i. Framers never intended a complete separation

ii. Wanted cooperation between branches

b. Separation of powers

i. All three branches shall be separate from the other and concentrate on their own functions

c. Check and balances

i. Each of the 3 branches shall have some influence on how the other two perform their specialized roles

d. Judicial powers

i. Judicial authority depends on cooperation of other branches

ii. Congress has power over Court’s jurisdiction and has power to create inferior federal courts

iii. President executes judgments entered by courts

iv. President nominates justices then there is need for senate approval

v. Impeachment – House then senate confirmation

e. Congressional powers

i. Before a bill becomes a law, president signs; then court can find it unconstitutional

ii. Example: congress power to declare war depends on the cooperation of president (as commander in chief)

f. Presidential powers

i. President and congress may be subject to judicial remedies

ii. President’s primary officers (cabinet members) must be approved by Senate

iii. Impeachment


a. Prevention of tyranny

i. Found in S of P and C &B

ii. Power of all 3 branches in one persons hands = tyranny

iii. Negative way of prevention of tyranny:

1. S of P prevents tyranny by ensuring circumstances do not encourage tyranny

iv. Positive way of preventing tyranny:

1. C&B requires cooperation of more than one branch to take action helps to ensure action is reasonable and just

b. Ensuring Efficacious national governance

i. Had a weak government under Articles of Confederation and so they wanted stronger government

ii. Ensuring enforcement of things

c. Tension

i. Expeditious government action involves some sacrifice on a minority of citizenry (see events after 9/11)

ii. Today, worry is more about presidential tyranny rather than legislative tyranny

iii. Independent agencies – justified on efficiency ground but problems with S of P and C&B


a. Political safeguard

g for plaintiff, who brought suit against defendant to recover certain penalties under a Maryland act imposing a tax on all banks in the state of Maryland not chartered by the Maryland legislature.

iv. OVERVIEW: The Maryland legislature had passed an act to impose a tax on all banks, or its branches, within the state of Maryland, not chartered by the legislature. The defendant, a cashier at the Bank of the United States, had issued notes that were not issued on stamped paper in the manner prescribed by the state act. The plaintiff, State of Maryland, brought suit to recover penalties under the act. The county court found for the plaintiff, and the court of appeals affirmed. On appeal, the court reversed holding that the act to incorporate the Bank of the United States was a law made in pursuance of the Constitution. Moreover, the court held that the law imposing a tax on the Bank of the United States was unconstitutional and void because the states had no power to burden the operations of the constitutional laws enacted by Congress.

i. OUTCOME: The court reversed the decision to uphold the tax on the Bank of the United States and held that the tax was unconstitutional because the states had no power to burden the operations of the constitutional laws enacted by Congress.

b. Issue:

i. Whether the state of Maryland could collect a tax from the Bank of the US

ii. Marshall’s Opinion raises 2 questions

1. Does congress have the authority to create the Bank of the US?

a. Says historical experience justifies constitutionality of a practice

i. This argument appears also in Steel Seizure, Dames & Moore

b. power of the state

i. supremacy clause (Art. VI, §2); you can’t have the lesser controlling the greater

c. Refute argument that states retain ultimate sovereignty because they ratified the constitution

i. This view called “compact federalism”

2. 10th Amendment “delegated powers”

a. states delegated power to tax so theoretically, they surrendered it

b. however, they still needed to be able to generate revenue

3. Scope of congressional power under Art. I

a. Broadly interpreted

b. Constitution does not enumerate a bank in congress’ powers

i. Marshall’s most famous words: “We must never forget that it is a constitution that we are expounding”

c. Congress not limited to acts specified in the constitution

i. Can carry out other things based on its other powers

4. N&P Clause, Art. I, §8

a. Congress may choose any means, not prohibited by the Constitution, to carry out its express authority.

i. ex: post office and postal roads; Army, Navy, but no Air Force; keep it flexible

ii. Broad interpretation of N&P

iii. definition of “necessary” is on a sliding scale

1. Art. I §10.2 absolutely necessary v. “only necessary” in 10th Amendment

iii. Is the state tax on the bank constitutional?

1. Congress can create bank; state can’t tax bank because it would impede on its operations

c. Framework from McCulloch (still used today)

i. Rejected compact federalism

ii. Court expansively defines the scope of Congress’ powers