Constitutional Law Outline
I. Revolution pre-Constitution = Articles of Confederation (1781)
A. States are sovereign and the preeminent rule was that state power was the best method for governance
B. Small role for Central Gov’t
a. Declare war
b. Relations w/ Native American Tribes
c. Appoint officers
d. Could not Tax
e. Could not regulate Commerce
f. Had no executive branch
g. Had no national judiciary
II. Many levels of corruption that undermined the rule of law, most problems included
A. Various states had incurred many debts and that money had to be paid back and the gov’t. could not tax to pay back the treasury
B. Lack of executive leadership for foreign relations
C. Interstate jealousies
D. Setting retaliatory tax and trade issues that affected relations and undermined relations for the free flow of goods
I. Role of the Judiciary and the Supreme Court
GENERAL – THE ROLE OF THE SUPREME COURT IN THE CONSTITUTION
ARTICLES OF CONFEDERATION
1. Principal of State Sovereignty – focus on state and local government, minimal nationalized government
2. Limited Powers of National Government:
A. Wage war
B. Solve disputes between states
C. Solve between Native American Tribes
D. Establish post offices
E. Appoint navy officers
3. No Power of National Government
A. Tax
B. Regulate commerce
C. No executive branch and no national judiciary
4. Problems Arise→
A. Conflicts and jealousies between state, especially in realm of commerce.
B. No revenues, national debt
C. Dealings with foreign nations
D. Corrupt state and local
5. Change – decide to amend articles, develop new proposed constitution.
A. Put in executive
B. Put in commerce clause
C. Put in means for raising revenues
D. Built in ways to amend
Political Theories
1. Classic/Civic Republicanism-
A. Oppose ratification of Constitution-
1. Because of centralization of power.
2. Called “Anti-Federalists”
B. Principles
1. Common good- Promote general public welfare, contrasted w/ private interest.
2. Civic Virtue – Willingness to forgo self interest to pursue common good.
C. How Achieved
1. One develops virtue by participating in public deliberations.
2. For example, the “New England” style town hall meeting.
3. Individuals personally uplifted through their participation in gov’t.
D. Anti Federalists Beliefs
1. Educate people of civic virtue, when people are virtuous gov’t. is virtuous
2. Decentralized gov’t. with active participation- local gov’t. is important.
a. Political representation is necessary, but not ideal.
3. Minimize wealth disparity – excessive wealth undermines civic virtue
4. Oppose Ratification of the Constitution
a. Commerce power is centralized- opposed to stronger Fed. gov’t.
b. Promotion of commerce would encourage wealth disparity.
2. Factualism/Pluralism – (Pluralism not a founded political theory until after WW II)
A. Development
1. Reality of political experiences in 1780s.
2. States set up republicanism/representative governments.
3. However, citizens won’t act virtuously.
a. Act for faction or group that best serves their interest
4. Gov’t. is competition among interest groups- “self actualizing struggle”
5. At the time, it was viewed as a corrupt form of gov’t.
B. As theory developed in 20th century, no longer viewed as a corrupt.
1. Political reality- this is how democracy works
2. Became predominate ideological theory in mid 20th century
3. But from framers perspective it was a corrupt form of gov’t.
3. Madisonian Republicanism
A. Theory – we will keep the ideal of civic republicanism but synthesized with reality of factualism.
B. Madison Philosophy
1. Need to respond to problems of the nation at the time –
a. Self interest- A rep gov’t allows people to have liberty & freedom and when people are given their liberty they will pursue self interest.
b. Corruption- exacerbated by a small republic; therefore advocate a stronger centralized gov’t.
2. Solutions→ Structural Systems and Constitutional reform
a. Have a large republic. Yes there will be factions but we will have so many factions that they will constantly fight and ultimately we will end up with the common good.
b. Representative Government -self interests gets filtered through rep process(believe that the most virtuous people will be elected)
c. Separation of Powers, disperse power amongst units
i) Checks and Balances
d. Advocates Constitutional revision to include Bill of Rights
i) Protect personal liberties
ii) Particularly for minority factions
Federalist Paper No. 10- Madison
1. Ownership of property creates factualism
2. Still it is essential for the government to protect property rights
A. How important protection of property rights was is debatable?
B. Range of views from most important issue to non even an issue
3. Ultimately, the point is the framers of the constitution and their views can be viewed differently
JUDICIAL REVIEW
1. The power of the federal courts, especially Supreme Courts to review value of actions taken by other governmental actors, legislative and executive branch.
2. “It is emphatically the province and duty of the judicial department to say what the law is.” (Marbury)
3. Scope of judicial review is controversial – b/c not as democratic as other branches of gov’t.
A. Not elected, judges are appointed
B. Congress and Pres are elected
C. Court substitutes its judgment for that of elected will of majority.
D. No express provision in constitution that provides/eliminates judicial review
Marbury v. Madison(judicial review over federal executive and federal statutes)
1. Facts:
A. Political wrangling, factions form
1. Adams and Hamilton lead the Federalists
2. Jefferson leads the Republicans
B. Federalist powered Congress passes legislation to created judicial positions. With less than a week left in his term, Adams appoints 42 justices of peace. Some commissions were not able to be delivered. Jefferson (new pres.) ordered his Sec. of State (Madison) to withhold the undelivered commissions, including Marbury’s commission.
C. Marbury filed for writ requiring Madison to deliver the commission, claimed Judiciary Act of 1789 authorized the Supreme Court to grant mandamus in a proceeding filed initially in the Supreme Court.
D. Marshall, the Chief Justice at the time, wrote the opinion. His connections to the Federalists led some to belief he was biased.
2. 3 Issues:
A. Whether Marbury has a right to the commission?
1. Yes, he had a vested right to the commission when it was signed by the president and sealed by the Sec. of State.
2. As opposed to saying the right is not granted until the commission is delivered.
B. Does Marbury have remedy to that right?
1. Yes, there is a remedy to the violation of this right. Reason – “The US is a gov’t. of law not of men.” Law must provide remedy for violation of any right, otherwise, having legal right would be irrelevant. Once rights is vested, then executive branch has ministerial duty to fulfill right and if duty is breached, must be remedy (exceptions – political dispute or discretionary power)
C. If the laws of the country do afford a remedy to his right, is the proper remedy a writ of mandamus issuing from the Supreme Court? (2 sub-issues)
1. Can writ of mandamus be directed to officer of executive branch?
a. Ye
tics.
A. This does not make the decision a corrupt one.
B. It’s a political reality
JUDICIAL REVIEW OVER STATE COURTS
Martin V. Hunter’s Lessee -(1781 revolutionary war still going on)
1. Facts – Conflicting claims to large tract of land in VA. Martin (lived in England) based claim on inheritance from British citizen (Fairfax) who owned the property. US and Britain had entered into two treaties protecting the rights of British citizens to own lands in US. Hunter claimed that he owned the land via a grant from VA, and the land had been granted prior to treaties, therefore Martin not have valid claim.
2. Procedure/Issue
A. VA Ct. App. ruled in favor of Hunter, citing state’s authority to have taken & disposed of land.
B. Sup Ct. issues writ of error & reverses decision, stating that the treaties secured title for Martin.
C. VA Ct of App. declared that Sup Ct did not have authority to review state court decisions.
3. Holding – Sup Ct has the power to review the constitutionality of state court holdings via appellate jurisdiction, therefore power to review decisions of the VA ct.
4. Reasoning:
A. Article III, sec 2, 1: “Arising Under” Clause- means cases involving federal question fall within the Federal Cts.
1. Martin arises under federal treaty and this clause suggests that the courts has jurisdiction over cases arising under federal treaties.
2. Problem is the case arose originally under the state courts and losing party wants to invoke the appellate courts jurisdiction and its power over the state courts decision.
3. The judicial power of the US, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.
4. Establishes power of federal courts over federal questions
B. Article VI, 2: Supremacy Clause – Along with Art. 3, Judges in every state shall be bound by Constitution and federal law.
1. Seems to anticipate that certain federal questions will be raised in state courts.
2. So if a case is initiated in state court involving a federal question, federal courts exercise appellate jurisdiction over state court decisions.
3. Therefore, follows that Sup Ct should have the power to review state court decisions.
5. Sovereignty Issue:
A. Sup Ct supremacy creates uniformity in Federal law. By allowing review, mechanism for assuring uniformity.
B. Hostility of state court judges toward claims arising under federal law.
1. State ct judges likely to side with state political figures and allies.
2. State ct. judges don’t have protection of Art. III- (job security and political insulation)
C. We will have different interpretations of federal law in different states; therefore, we need the Sup Ct. to establish the uniform rule.
6. Significance:
A. Federal appellate review of state judicial decisions
B. Extends to state executive and legislative action as well.
Compare Marbury and Martin:
1. Story in Martin has stronger argument.
