CONSTITUTIONAL LAW
COLLINS
FALL 2012
Evaluating historical arguments: Other historical arguments? Should we go up or down in specificity? Did the Framers intend to leave room for development, or to preclude change?
Supreme Court today: Mostly discretionary (much less mandatory than in past). Fewer than 100 cases a year. Why? 1) Conflict among lower courts, 2) Case is important, 3) Lower ct struck down federal statute, 4) Error correction – egregious miscarriage of justice (rare)
THE CONSTITUTION
Sovereignty of people vs. king (who are people? not slaves, women, 18-21 yrs, non-prop owners
till Amend 13, 19, 26, poll tax). Promised life, liberty, property, but prescribes subordination
Relationships w/in federal govt, btwn federal govt + state govt, btwn govts + people
Horizontal relationships (national)
Article I: Congress (Senate + House)
Article II: President
Article III: Court
Vertical relationship
Article IV: States
Article V: Amendment process
Article VI: Constitution
Article VII: Ratification
Individual rights, etc.
Amendments: 1-27
History: Constitution is a historically contingent document
Marshall Court – aggrandized Court, Constitution, national power
Taney Court – infamous for slavery decisions, Dred Scott
Broad Support – of post-Civ War Amends
Retreat – from Civ War Amends
Lochner Era – strikes down industrial laws
New Deal Era – revolution in understanding regulation
Warren Court – civil rights movements
Burger Court – expand individual rights, but also other concerns
Rehnquist Court – expand individual rights, but also other concerns
Theory:
1. What is the Constitution, where do some rights come from, what other primary docs to include? Aspirational document? Struggle of freedom + subordination?
2. Who interprets the Constitution? Assume S Ct, but Legislature + Executive? Us?
3. How do we interpret the Constitution? Literal or capacious reading? Whose purposes?
STRUCTURE OF GOVERNMENT
View of Power:
Public Virtue: Faith in the elite / elected, people can’t govern themselves as well
Ambition Curative: Divide power among powerful so it’s hard to abuse, rely on self-interest v. virtue (ambition counteracts ambition). How?
Divisions of Power:
Three branches of govt to divide duties
Congress most likely to be tyrannical, so two houses
National govt (enumerated powers) + State govts (residual power)
People are sovereign, power is divided, so what’s the…
I. Role of Judicial Review: why should nine judges have the final say on people’s Con?
A. Founding Generation (SM 1-9)
Constitution + Bill of Rights (1787-1791):
Ditching Articles of Confederation (states were sovereign) for a stronger national govt
Federalism: states’ rights. Federalist: nationalist party.
1, Intellectual Background: Social Contract tradition (protecting from state of nature) +
Republican tradition (faith that individuals will sacrifice for common good)
2. Drafting Constitution (1787): 1) popular sovereignty, 2) layer-cake federalist structure,
3) separation of national powers. VA plan (strong national) or NJ plan (weak)?
Great Compromise: states have equal votes in Senate, pop representation in House.
Create structures of branches more than list powers. Council of Revision for
Congress? No. Slavery? 3/5 rule. Also, can’t consider banning slavery till 1808.
3. Constitution’s Ratification Debates (1787-1789): Needed popular conventions in 9
states to ratify, Fed v. Anti-feds, Federalist Papers (10: extend sphere, limit factions).
But if only 9 ratified (4 didn’t), need all to amend Con…how is Con legit in 1st place?
4. Constitution Ratified w/Bill of Rights (1789-91): Appease VA + NY + Antifeds
(Feds think unneces b/c limited natl powers + might leave some off), first 10 Amend,
from Madison (says still enough power for possible abuse, will rts safeguard like
states do). Only applies to natl, not state govts.
5. Historians + Founding Period: High-minded men or self-interested upper class? (Beard
thesis). Looks like support / opposition cut across class lines, but later, splintered over economic disputes.
6. Early Constitutional Debates w/in Congress, Presidency, States (1790-1801):
More around President + Congress than Court – including Necessary + Proper
Clause for Congress to open US Bank, state controversy over Sedition Act
1. Marbury v. Madison (1803, Marshall, CB 29-42) judicial review
Facts: Jefferson won’t deliver last-minute confirmations of judges, Marbury + Federalists
want a writ of mandamus (invoking act of Congress) to make secretary Madison deliver.
Issue: 1) Does Marbury have a right to the commission? Yes. 2) If right has been violated,
does the law afford remedy? Yes, b/c specific duty assigned by law (executive discretion to
appoint judges). “Political question” doctrine: some questions aren’t for judiciary, but here,
act’s done, so should have a legal remedy. Court thus can review this kind of executive
action (aggrandizement). However… 3) Is the remedy a writ of mandamus from the Court?
No. Why? Even if correct remedy authorized by act of Congress for S Ct to give, their act
was uncon! According to quote of Con (ignoring “Congress’s exceptions” clause, which
suggests Congress might be able to expand), S Ct needs appellate jurisdiction to issue
mandamus, but this case is of original jurisdiction (officers). Court’s bound to power limits
in Con. Can’t remedy official illegality. Con’s supreme + S Ct’s the authoritative
interpreter (two ideas he conflates). Why judges? “It is emphatically the province + duty of
the judicial dept to say what the law is,” interpretation’s their job! Doesn’t say other branches can’t review, just that judiciary branch has last word. When highest law of Con conflicts with act of Congress, Ct can declare act invalid. Aggrandizes Ct power.
Holding: Discharging case, S Ct w/o power to make President deliver commission.
Judicial Revie
will: Really no tension? Con contains people’s will, reps in Congress aren’t “the people.” Courts promote rather than undermine democracy (created by people steeped in democracy).
Problems:
1. Historically, is Con the will of the people? (Who are “the people?”) Not clear…
2. If it is people’s will, still if Ct interprets? (ok if mechanically? limited discretion?)
3. Dead hand: if it was people’s will, is it still today? If flexibility is the answer, more countermajoritarian issues b/c more free rein to judges’ values.
2. Legislature isn’t democratic: And judges aren’t undemocratic. Judges are part of society too, not going to radically run over majority’s views (+ possible for Amend to change what “people” say).
3. Judges are insulated: Judiciary least accountable branch to people, but least dangerous / powerful branch, so good they’re isolated from politics + have the last word. Vice or virtue to be isolated from popular pressures? Court can speak for those w/o adequate rep, or conversely limit factional influence. Protecting minority rights.
Solving Countermajoritarian Difficulty if it exists:
Changing + Controlling Court: Budget of court, size of court, Constitutional Amends, appointment of judges (not reliable), impeachment.
Reading Constitution: Constraints on how to interpret Con? Have better method?
3. Martin v. Hunter’s Lessee (1816, Story, CB 51-56) judicial review of state court decisions
Facts: Land ownership dispute in VA over if US treaty invalidates a state grant of land. S Ct says to give Martin the land, VA won’t. VA says §25 of Judiciary Act is unconstitutional in extending appellate jurisdiction of S Ct to VA ct
Issue: Does Supreme Court have appellate jurisdiction over constitutional decisions by state
courts? Textual argument: Con suggests they do (but text’s too inclusive?) Art III doesn’t
limit appellate power. Structural argument: Art I § 10 abrogates state power (not that much
state sovereignty). Functional arguments: 1. Need uniformity of federal law (tension btwn
chaos + centralization – better to have “neat” law?). 2. States might be biased (esp. b/c
judges elected), fed cts have more expertise. P can choose state v. fed court, but d can’t
(then), so more fair that state decisions are subject to fed review. If can’t get orig juris, needs
to be able to check states w/app juris. If they can strike down laws, can strike down lower ct.
decisions! Must have last resort to interpret Con, should be S Ct.
