Constitutional Law I
Forbath
Spring 2011
Origins of the Constitution
Rival Views of Republican Government
Friends and Foes of Constitution:
Securing rights of citizens over government
Securing fair-minded public-regarding law makers
Ambitions of Framers: purposes animating the new Constitution
Anti-Federalists
Tea Party looks more like anti-Federalists rather than proponents;
Proponents of New Constititution
Wanted to enlarge and expand powers of Congress to meet nationwide demands
Local government was the problem, not the solution
Removing power from local majorities was key
Madison
Positions himself as a mediator between fans of local government, participation, popular liberty and those who private liberty securing rights under contracts that thought better guarded at national level
Federalist No. 51 (Checks and Balances)
Relies on structural constraints on capacity of Constitution to set up an authority in one branch to impose some limits on other branches
Vision of constitutional review: checking acts of Government to ensure abiding by constitutional limits
Conspicuously absent: judicial review – court asking question whether something is constitutional or not (constitutional review by a court)
Federalist No. 10 (Factionalism)
Madison’s “Virginia Plan”
Two ideas of how constitutional review might take place:
1) congressional negative – proposal that Congress could look at state laws and decide whether entrenched upon Constitution by state law exercising power reserved for Federal Government;
2) Council of revision – special council that hears challenges to laws enacted by Congress
a. Included President and representatives of U.S. Supreme Court (the other two branches of the government)
b. Didn’t have power to nullify the law; only had power to send it back to Congress and require a 2/3 majority to reenact law (sets up a dialogue among branches rather than a conclusive veto in the courts)
“New Jersey Plan”
1) Alternative that became Supremacy Clause, Art. 6 § 2; interestingly, “the Judges in every State shall be bound thereby”
2) Agrees with Madison about trumping state laws, but wanted the power to reside with judges
Only speaks to challenges to state statutes; doesn’t say anything about challenges to federal statutes.
Framer’s Main Modes of Constitutional Review
1) President through veto powers,
2) State legislatures through pressure on senators and protests, even resistance,
3) Citizenry through votes
General Models of Constitutional Review in Founding Era
1) Judicial review model (New)
a. Hamilton’s Federalist No. 78
b. Marbury v. Madison
2) Madisonian Model (Old)
a. Multiple centers of constitutional interpretation and enforcement
b. Vetoes
c. Dialogue and accommodation among branches and levels of government and citizenry
The Role of the Supreme Court
Court had to set out judicial review as an important or even supreme form of constitutional review, because idea not really grounded in founding, constitutional law or tradition as inherited from England, and text of Constitution doesn’t explicitly contain a provision for it (but it does contemplate it).
Marbury v. Madison
Jefferson wins by a landslide over the Federalist John Adams. Congress, in a lame-duck session, stacks the judiciary with Federalist judges by enacting statute creating new positions for justice of the peace in D.C. Adams nominates the authorized judges. Republicans assume power and repeal legislation that created the new bench of judges. The Judiciary Act of 1789 granted original jurisdiction for Marbury’s writ of mandamus to the Supreme Court.
Opinion. CJ Marshall leaves jurisdiction until the end because he wanted to announce and exercise judicial review.
1) Does Marbury have a right to the commission? Yes; when a commission has been signed by the president, the appointment has been made.
2) Does Marbury have a remedy?
a. There are legal acts (reviewable) and political acts (not reviewable). Legal acts – acts that involve individual rights; Political acts – acts that are subject to discretion and judgment (matters where policy made, foreign affairs, etc.).
b. This isn’t a discretionary matter—Marbury has a right to the commission
3) Is mandamus the proper remedy?
a. Depends on two questions: (1) nature of the writ; and (2) the power of the Court.
b. Writ of mandamus is undoubtedly the proper remedy.
c. But does the Court have power to issue it?
i. Judiciary Act of 1789 authorizes the Supreme Court to have original jurisdiction in issuing writs of mandamus.
ii. However, Article III, § 2 confers authority to hear cases arising under “the Laws of the United States” only under appellate jurisdiction.
d. Textual analysis
i. There are no negative or restrictive language on the Constitution’s delegation to the legislature, so legislature has power to assign original jurisdiction to the Court in other cases besides the ones specified in Article III, § 2.
ii. However, if that were the case, why would the Constitution list the types of cases instead of just defining the judicial power? “The subsequent part of the section is mere surplusage, is entirely without meaning, if such is to be the construction.”
iii. However, Article III, §2 does say “with such Exceptions, and under such Regulations as the Congress shall make.” Arguably, the Judiciary Act falls under this clause.
e. Constitutional power
i. Nowhere does the Constitution provide power for Court to declare an act of Congress unconstitutional.
ii. Nor are there any federal precedents on the issue (could have looked at Federalist No. 78, but opts not to).
iii. Plus, limits on Congress don’t require judicial intervention: presidential veto, voting out of office, etc.
iv. So, Marshall must infer this power.
f. Broad, structural principles
i. Popular sovereignty – power resides in “We the People,” established the government, assigned different powers to different branches, and we defined and limited those powers, and we wrote them down.
g. Moves to specific provisions.
i. “It is emphatically the province and duty of the judicial department to say what the law is.”
1. May mean federal courts have superiority over other branches and levels – “judicial supremacy”
2. May mean “us too” – alongside other branches, courts also have authority to interpret & apply Constitution
ii. “Judicial power of the U.S. is extended to all cases arising under the Constitution.” – must then examine the instrument under which it arises
iii. Prohibition of taxes on other states’ exports & prosecution of treason
1. If legislature passes laws contrary to these provisions, Constitution would not yield to these legislative acts
2. “It is apparent that the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature.”
iv. Judges and legislative representatives swear an oath and are bound by the Constitution
v. Thus, “a law repugnant to the Constitution is void” and the courts & other departments are bound by that instrument.
Counter-Majoritarian Problem
-If we are a democracy, why can the Supreme Court strike down democratically-made laws and have the final say on constitutionality?
1) Dead Hand of the Past Problem – why would an old document determine law-making today?
a. Very difficult to amend – could be intended to encourage deliberation and thought before the Constitution is amended – thus weeding out constitutional matters from petty politics
b. Assumes meaning, intent is clear & transparent
c. Federalist No. 78 – Hamilton: what
visions that restrain or annul state sovereignty
2) Article I Section 10 lists prohibitions upon the states, thus doesn’t appear to support state sovereignty
3) No question that federal courts can revise proceedings of executive and legislative functions and strike down state laws
a. If question of state law arises in federal court, Court now has jurisdiction
b. Coupled with the Supremacy Clause, no question the Court has power to do so, since state law is trumped by Constitution
c. Infer that Framers wanted state and federal judges to honor the trumping of state laws
4) Why not trust state courts to decide the issue?
a. Congress bestowed power to remove case from state to federal court
b. Constitution presumes that state bias may come into state judicial proceedings, so Constitution mandates “all cases” in these circumstances go to federal court—and “all cases” means ALL CASES, no matter if they arise in state or federal court.
c. Uniformity argument – different judges in good faith come to different interpretations or conclusions; thus, need one court to issue final decision for uniformity
McCulloch v. Maryland
Things to keep in mind:
1) Array of different forms of argument that CJ Marshall uses
2) What CJ has to say on the nature of division of power between federal and state government (the substance of the boundary)
3) Role of the Court in policing the boundary between federal and state authority
4) CJ Marshall’s brand of constitutional division
5) Seemingly philosophical conflict of sovereignty—who is sovereign, how does it arise, creature of federal or state government, etc.
Two questions in the case:
1) Does the U.S. have power to create a national bank?
a. No express provision in the Constitution
b. But, this follows from Congress’s execution of its enumerated powers
c. Thus, looking not at textual grant of power but at implied power
2) Does Maryland have power to tax the bank?
a. Again, no express prohibition in Constitution
b. But, infer a prohibition from Congress’s implied power
Nature of the Constitution
1) Maryland argues that the Constitution was an act of sovereign and independent states
2) Marshall: it was an instrument of the people, created by a national constituency
Textual argument
1) Omission of “expressly” in the Constitution, allows inference of powers
2) The Articles of Confederation included “expressly”
The Constitution is like an outline; important objects designated and “minor ingredients” which compose those objects can be deduced by nature of the objects themselves. Plus, the Constitution was meant to endure crises unable to be foreseen when drafted and to endure through time.
“Necessary and proper” clause is not located in restrictive Section 9 of Article I but in Section 8 which grants power: so it is an expansive clause on the power of Congress.
Maryland’s interpretation would deprive Congress of choosing the means of execution.
Determining the degree of “necessary” once determined to be necessary: issue doesn’t belong in the courts and cannot be contested as a constitutional question.
Two principles:
1) The Constitution grants to Congress implied powers for implementing the Constitution's express powers, in order to create a functional national government.
State action may not impede valid constitutional exercises of power by the Federal government.
