Professor Jordan Steiker
University of Texas
Constitutional Law 2007
Textbook: Choper – Constitutional Law
Should look at Fed 45/46 and the others about Sep of Power
1) Cases that Established the Court
a) Marbury v. Madison
i) Background
(1) Federalism: Strong Fed Gov’t, Protect commercial interests, Pro-Creditor
(2) Anti-Federalism: Advocate for autonomous state power, Agrarian, Pro-Debtor
(3) Adams creates large # of circuit judgeships, eliminates SCOTUS judges from riding circuit, limits size of SCOTUS from 6 to 5, justices of the peace in DC.
(4) Marshall fails to deliver appts. Jefferson appts own guys. Pass repeal statute that eliminates justiceships, restores circuit riding and increases SCOTUS size.
(5) Marbury wants his JoP in DC, sues Madison to get it.
ii) Issue: The exceptions clause of Art III, §2 cl. 2. “SCOTUS shall have appellate jurisdiction . . . with such exceptions, and under such Regulations as the Congress shall make.”
(1) Marbury: Exceptions clause means Congress can move some of the Appellate jurisdiction over into Original Jurisdiction.
(2) Madison: Nope. There is a ceiling on Original Jurisdiction. Exceptions clause means Cong can take away Appellate Jurisdiction.
iii) Court’s analysis:
(1) Marbury had a right to commission when signed. Remedy is against Exec.
(2) We are a Government of Laws, not of Men.
(3) Executive answerable for nondiscretionary duties.
(4) BUT is the mandamus action the right way to go?
(5) Art III is now in conflict w/ statute. Who wins?
iv) Big Question:
(1) Does a law repugnant to the Const obligate the Court to enforce it?
(2) Nope.
v) Reasoning:
(1) Supremacy clause is more than a procedural check. It has substantive effects.
(2) Judicial Power in Art III means Judicial role to interpret.
(3) Art III §2 “arising under this Const” means Court has juris under every Fed Q.
(4) Oath of office “agreeably to the Const.” Duty is to Const not laws.
vi) Criticisms:
(1) Bickel – Counter-majoritarian Difficulty.
(a) Judicial power to invalidate products/decisions à coordinated, popularly elected branches
(b) Undemocratic? Judges are unelected and unaccountable.
(i) Democracy v. Majoritarianism.
(ii) Promotes democracy by protecting minorities
(iii) Democratic checks: Prez appts, Impeach, Ammendment, Ignored.
(iv) Court reflects supermajority of Higher Const Law
(2) Problem: If all it took was a mechanical comparison of Const and Statute, there would be no claims of counter-majortitarianism. But Const interp can be open-ended/indeterminante and their “judgment” could transform into “judicial will.”
(3) Intertemporal Difficulty
(a) Do we really want to be tied down to what people wanted 230 years ago?
(b) Only significant way to change is ammednment process, which is a huge burden.
(c) Didn’t Jefferson want a revolution every now and then?
(d) But, Const written at very politically active time. People very conscious.
(e) Can still change, but must make sure we really want the change.
(f) Wasn’t just a majority back then. We had 2/3 of the states ratify, eventually unanimous.
(4) Other examples of Counter-majoritarianism not working:
(a) Warren Court in the 60’s. Miranda and Exclusionary, etc., were majoritarian views forced on a specific set of southern states.
(b) In New Deal, Court bent to be compliant to the great public will.
vii) Wrap-up
(1) Benefits of Judicial Review
(a) Separating will from Judgment
(b) Judicial insulation
(c) Check on all branches w/ own means of self D
(2) Concerns
(a) Counter-Majoritarian Diff
(b) Judge imposes values
(c) Few const issues w/o subjective judicial discretion
(d) Undermines const oblg of other branches
b) Martin v. Hunter’s Lessee
i) Does the Anti-confiscation Treaty trump the State 1796 Act of Compromise?
(1) Virginia’s Op – States are sovereign and the rights they don’t give up don’t preclude their sovereignty in their territory
(2) Rooted in the idea that the Const ratification is f’ed up. You went to revise the Articles of Confederation. Why only require 2/3 of states to go along w/ this new government? We’re we ALL in the last one?
ii) Story’s Opinion
(1) Constitution is a creation of
vide a service!
(3) That doesn’t matter. This is a classic externality. The state is imposing broad costs that it can ignore by providing itself a benefit.
vii) McCulloch establishes a blanket rule of intergovernmental immunity.
(1) McCulloch doesn’t expand Preemption, but it does expand Art I §10.
(2) Doesn’t the state have any sovereignty left?
(3) But states have political protection! Federal regs on states don’t produce externalities, because they apply to everyone. See Fed 46.
(4) Look at what the states are in charge of! Damn, do they have power and gravitas!
(5) If the Federal government starts expanding, then the people, not the states, will check its growth.
viii) \ Federalist boundaries should not be installed by the judiciary.
ix) But now its difficult for states to experiment and produce their own policies w/o running into preemption.
d) Gibbons v. Ogden
i) 2 questions: Is the Fed License valid and Does it override the NY monopoly?
ii) Ogden argues that navigation ≠ commerce. It is simply activity that is leading up to commerce.
iii) There is a fear that if you strip away navigation regulation that you will encourage trade wars between states.
(1) Intrusive State regulation may be destructive to a national market.
(2) Fed Reg may enact subsidies, quality standards, etc.
iv) State Argument – This is all well and good, but this power of interstate commerce doesn’t extend to every economic activity.
v) Fed Argument – Commerce = Commercial Intercourse. Court agrees, but allows for unregulated Intrastate Commerce.
(1) Let’s think about this. Interstate Commerce = Gigantic fucking gorilla with a chainsaw
(2) Intrastate Commerce = Shaved poodle
