Select Page

Constitutional Law I
Wayne State University Law School
Winter, Steven L.

Constitutional Law

Professor Winter

Fall 2012

Introductory Readings: Paul: A Bedtime Story

You are being babysat and want to stay up late to watch a TV show, before approaching babysitter:

1. Check the Rules: (what did parents say?)

a. Statutes (any notes from parents?)

2. Cases

a. Precedent (what time does babysitter typically put you to bed?)

b. Like Cases should be treated alike (You were allowed to stay up during world series game)

c. Narrowing the precedential holding (only allowed to stay up for world series like last time)

d. Broadening precedental holding (should be allowed for special events (and TV show is one)

e. Category characterization (Miami vice is a special event, must make the argument)

3. Wrong on the facts (school doesn’t start late tomorrow, babysitter checked schedule)

4. Probing the proof problem ( you don’t lie, and babysitter wonders whether to test your honesty)

5. Spotting a gap in a rule

6. Literalism (the note says weeknights, plain meaning)

7. Purposisivm (what is the reason behind the note)

8. Ambiguity of Legislative Intent and Judicial Deference to ambiguity (not my job to make the rules)

9. Encourage legislative clarity

10. Dangers of Judicial bias 17. Ease of Application

11. Expectations 18. Over inclusive

12. Exceptions 19. Under inclusive

13. Reliance 20. Litigant Manipulability

14. Fairness 21. Judicial Manipulability

15. Unpredictability 22. Exceptions Riddle The Rule

16. Rigidity of Rules 23. Exceptions Swallow the rule

Winter: It’s all in the telling

our rules (e.g., “No animals on the bus”) are not rigidly fixed in terms of inherent properties of the objects [specified in the rule]. What counts as an instance of a rule depends on our purpose in using the rule. . . .Such rules are not fixed but may be narrowed, expanded, or adjusted relative to our purposes and other contextual factors. Since the determinacy of a law depends on whether the categories employed in the law fit, the determinacy of a law will always be relative to the way the rule is understood for our purposes in a given context.

Texualists: what’s the meaning of the rule “no animals on the bus”- purpose behind such rule would define the rule

(ex) caged bird? Argue that such a rule’s purpose is to prevent animals from roaming free on bus and harming patron, thus a caged animal does not threaten that.

(ex) fish in baggie? Argue that fish less threatening than bird, but what if bag broke and water went everywhere

Think about the facts more flexibility (not always just arguments about the rule)..what if bird got out, what if fish bag broke?

Reading the rule in light of its purpose.

(Bad) Legal Positivist – term comes from debate about whether law has to be moral or not – natural (from god) v. law

the view: “law is a law because the right people said so”

Meaning of Rule doesn’t come from something a Judge said, but rather from Common Cultural Knowledge (social practices, the unspoken ‘this is how things are done’) = not natural but not law either

No animals on the bus

notion that text will constrain is an illusion (the most it will do is structure sets of choices) – text always allows for different possibilities, no such thing as plain meaning or literal language – meaning is in the mind not in the words.

(ex) the Constitution itself (words on paper) does not mean anything, it’s the meaning given by the writers

categories that all laws use (animals, vehicles) usually are too encompassing and/or too small, speak in generalities, and thus require interpretation – not a simple mechanical translation – language is not univocal (doesn’t speak in a single voice).

the background social values/practices forms meaning

I. The Role of the Supreme Court

A. Introduction: The Constitution (pg 1)

Theme: interplay b/t constitutionalism and democracy

The Constitution: Is not a very democratic document (strongly anti-democratic)

Most obvious – huge # of people were excluded (women, african americans, non-property owners, native americans)

The Senate was unelected until 1913 (picked by state legislature), women couldn’t vote until 1920, civil rights 1960s)

Basic idea of Constitution was to protect property (that’s what it was all about at first)

1830s – universal suffrage movement (all white males allowed to vote whether or not they owned property)

The Framers were very suspicious of democracy (didn’t trust people)(ex) electoral college – didn’t trust the people to pick the president

The constitution says a lot about what a the fed can do for you, and says little about what a state can do for you.

It was assumed that the federal government would be very small. Largest was the treasurey.

After the civil war the amendments were adopted under the condition that the southern states would sease to be occupied if they approved the 13 – 16 amendments.

This was a new development, because it told the states how they had to govern their citizens.

Holmes once said if we didn’t have the power to review state constitution, the union would not survive.

B. The Origins of the US Constitution

Madison’s Federalist 10

(Madison’s normally associated with idea of individual rights, pro-democracy)

But what he was concerned with was tyranny of majority/faction – the fear of all the poor people ganging up on the rich people and passing liberal laws or taking their property

Civic Republicanism – (“the town meeting”) – all citizens would come together and debate over what the law should be, individuals are self-governing (democratic) b/c they give the law to themselves (as a group though). This is the Democratic heritage, what politics were all about then. More communitarism view.

Civic Virtue: when group debate occurs people are voting from the perspective of “for the greatest interest of the group”, “the greater good”, not from the perspective of self-interest

Corruption (faction): acting out for the purpose of one’s self-interest

Pluralism (i.e. current/conventional view of Democracy) – bunch of different interests (property owners, farmers, factory workers), and all these people are attempting to get their piece of the pie. The purpose of “democracy” is to aggregate all the interests through voting, legislature etc. and the outcome of that is a compromise of all the interests. More self-serving view. Not what the Framers considered Democracy

C. The Basic Framework (p 29)

Marbury v. Madison

(Established the power of judicial review, 1st decision to declare a law unconst.)

(behind the scenes – Adams was Federalist lost the House in the election, in attempt to retain some control passes statutes and appoints Marbury over judicial branch).Marbury – files the mandamus (order issued by higher court requiring lower court to do something) directly in the Supreme Court

Facts: March 1802, Adams appointed Marbury (P) as justice of peace, and several others, after Jefferson defeated John Adams, but before Jefferson took office. The commissions were signed by the late President and the seal of the United States was affixed to the commissions by the Secretary of State. The commissions were withheld from the applicants and they requested their delivery. These last-minute appointments were never fully finalized and the disgruntled appointees invoked an act of Congress and sued for their jobs in the Supreme Court. The Court granted a rule to show cause, requiring the Secretary to show cause why a mandamus should not issue to direct him to deliver to the commissions. No cause was shown and the applicant filed a motion for a mandamus.Mandamus is the proper writ for violations non-discretionary duties (black letter law)

Issue: The three issues addressed by the court are whether P has a right to the commission (is he entitled to appointment), whether that right has been violated, and if so, whether the laws of the country afford him any relief, and if the relief is a writ of mandamus from the Supreme Court. (Is his lawsuit the correct way to get it? And, is the Supreme Court the place for Marbury to get the relief he requests?)

Rule: Where the law imposes a specific duty, the injured party has a right to resort to the laws of his country for a remedy.

[hn1] The very ess

. Marshall answered that Acts of Congress that conflict with the Constitution are not law and the Courts are bound instead to follow the Constitution, affirming the principle of judicial review. In support of this position Marshall looked to the nature of the written Constitution—there would be no point of having a written Constitution if the courts could just ignore it. “To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?”[18] Marshall also argued that the very nature of the judicial function requires courts to make this determination. Since it is a court’s duty to decide cases, courts have to be able to decide what law applies to each case. Therefore, if two laws conflict with each other, a court must decide which law applies.[19] Finally, Marshall pointed to the judge’s oath requiring them to uphold the Constitution, and to the Supremacy Clause of the Constitution, which lists the “Constitution” before the “laws of the United States.” Part of the core of this reasoning is found in the following statements from the decision:

Marshall said that there is no middle ground in this interpretation.

Yes. The Supreme Court has the authority to review acts of Congress and determine whether they are unconstitutional and therefore void. It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each. If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.

No. Congress cannot expand the scope of the Supreme Court’s original jurisdiction beyond what is specified in Article III of the Constitution. The Constitution states that “the Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction.” If it had been intended to leave it in the discretion of the Legislature to apportion the judicial power between the Supreme and inferior courts according to the will of that body, this section is mere surpflusage and is entirely without meaning. If Congress remains at liberty to give this court appellate jurisdiction where the Constitution has declared their jurisdiction shall be original, and original jurisdiction where the Constitution has declared it shall be appellate, the distribution of jurisdiction made in the Constitution, is form without substance.

No. The Supreme Court does not have original jurisdiction to issue writs of mandamus. To enable this court then to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction.

It is the essential criterion of appellate jurisdiction that it revises and corrects the proceedings in a cause already instituted, and does not create that case. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper is, in effect, the same as to sustain an original action for that paper, and is therefore a matter of original jurisdiction.