the problem of constitutionalism
The problem of constitutional authority: the constitution seems to get in the way of American’s democratic processes. We tend to think of ourselves as a majoritarian democracy: majority wishes should/tend to rule supreme. However the Constitution tends to get in the way of majority want.
Solving the problem: It is less about the C that we could create now, and more about:
Flexibility: The C must bend, but not break. (1) amendments – long and difficult process to prevent whimsical changes. (2) judicial interpretation: some controversial pts were written fairly general allowing for flexibility in interpretation.
The ct must strike a balance between stability and flexibility: stability allows for predictive laws, flexibility allows for laws molded to the society.
Another problem of constitutional authority: judicial review – that unelected, life-tenured judges can appoint what the Constitution means, even to the extent of invalidating legislative statutes (passed by a democratically elected body). AND that this power was created 200 years ago and still binds the branches to this day.
· What can justify this seemingly countermajoritarian practice?  i. Insulation from politics: the process of appointment, tenure
ii. If the system as a whole is democratic, maybe its good to have nondemocratic body to check the democratic bodies.
historical origins of the constitution
· Who are the framers of the constitution?
o The delegates to the constitutional convention- those reps sent by the 13 states to go to Philadelphia for drafting, and those who voted on ratifying it are considered framers.
· Why is the constitution binding?
o Framers were representatives of the people, given authority by the state legislature, thought about ideas as goals for the long-term rather than short term, pursued common goals rather than personal interests.
Why did Madison think a new Constitution was necessary?
o Lack of federal power-(to enforce law)
§ The A of C didn’t have an executive branch –fed gov wasn’t strong enough
· The framers wanted to remedy this by creating 2 new branches of gov–executive and judicial branch
· Gave executive more bargaining power in commerce
o To keep states from fighting-
§ States were drafting state laws to benefit only their own citizens
o Treaty Power
§ They had no power to enforce the treaties upon the states
§ States were violating international treaties and nothing could be done about it
o Taxation Power
FEDERALIST PAPERS & PROBLEMS W’ ARTICLES OF CONFEDERATION:
Lack of federal power: economic inefficiencybc no power to regulate commerce (states practiced protectionism through trade retaliation.); embarassment abroad; lack of national cohesiveness.
Factions – Madison’s Federalist 10:
· Objective definition of a faction: “A number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impuse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”  · 2 ways to cure a faction: (1) destroy the liberty essential to its existence; (2) by giving every citizen the same opinions, the same passions, and the same interests.
· Main Idea: (1) certain rights ought to be protected, even from the majority, (2) there is a notion of common good/interest that transcends even what a majority wants at any given point in time.
· Madison idea of fair politics may be contrasted w’ democratic politics:
a. Madisonian politics: there is a common good that transcends majority will
b. Democratic politics: the majority will is the common good
Corruption (Tyranny) – Madison’s Federalist 51:
· W’in government there will be selfish interests
· Gave new power to fed gov: power to regulate commerce, direct taxation.
· Horizontal division of power: divided yet overlapping federal departments (different branches)
· Vertical division of power (fed, state, people). (different layers of gov)
· By dividing power, they in-effect, added to fed power by adding executive and judicial branches: enforcement and interpretation of law.
· Judicial Review:
· Bill of Rights: Some rights are pre-political, some initial fear that by specifying some rights they would exclude others.
· Rested authority of the fed constitution on the people themselves, rather than the state govs. (Not just a contract w’ the states, but a contract of federal power directly w’ the people)
Federal Judicial Power & the problem of judicial review
· Power is not expressly mentioned in the Constitution (Article III) and is, at best, implied.
o Article III § 1: the jducial power shall be vested in one supreme court (and andy others that Congress choses to create)
o Article III § 2: judicial power shall extend to all treatises made
· Rather, it is built through case law (Marbury)
· Defintion: the power of the cts to review legislation for consistency w’ the Constitution or to review any act of some other branch of government (or even the Judiciary itself).
· Encompasses the power of any ct to decline to enforce some statute or other case-law on grounds that statute would contradict the Constitution
Marbury v. Madison  àJudicial Review Established [checks & balances] I. Facts:
A. Adams nominates Marbury as Justice of the Peace.
B. Executive power to appoint Justicies is vested in Article II, Section 2. „He shall“ i.e. he can if he wants to, not mandatory, however, the appointment must be approved by the Senate
C. Change of administration
D. Senate confirms Marbury
E. Commission isn’t delievered to Marbury & Madison refuses to deliver the commission
F. Marbury sues Madison directly in the Supreme Court: looks to the Judiciary Act of 1789  Congress gives authority to SC to issue writs of mandamus against executive officers of the US.
· Writ of mandamus: Orders an officer to do/refrain from doing something
II. Holding: SC is empowered to review acts of Congress & void those that if finds to be repugnant to Constitution.
A. Does Marbury have right to commission?à YES, was appointed to position, approved by President, there was a seal on it, Secretary just had to deliver it
1. Commission: physical handing of paper w/ appointment & seal to appointee; proof of commission to office
2. Signing: completion of appointment; last act of president – Sec must seal it; appointment done at last act of Pres.
a. Reasoning: appointment for long time, signature completes it b/c person can’t later be removed by presidential claim that he didn’t complete appointment; if position could be removed at any time, requirement of approval may be different.
B. Does law provide Marbury w/ remedy?à YES, delivery is non-discretionary à having legal title to office, he has consequent right to commission [right that deserves a legal remedy] 1. Where there’s a right, there’s a remedy: “Very essence of civil liberty certainly consists in right of every individual to claim protection of laws, whenever he receives injury.”
2. Discretionary: officers who are political or confidential agents of executive, merely to execute will of President; their acts are only politically examinable [vote out of office] – ex: President
a. Not average controversy among citizens; danger of interfering w/ authority of President
b. Ex: Secretary of State acting in a way to implicate President’s policy
3. Non-Discretionary: officer is carrying out duties imposed on him by law, like ordinary citizen in respect to those non-discretionary acts; has right to resort to laws of country for remedy
a. Here, Madison has legal right to deliver those appointments, if he is not doing his job, there is no reason he should not be subject to law
C. Does SC have jurisidiction to give Marbury remedy he seeks?à NO, while allowed by Judiciary Act, Judiciary act inconsistent w/ Article III, & court has authority to declare statue unconstitutional & decline to enforce it.
1. Can a court issue mandamus remedy that Marbury seeks?à YES b/c deals w/ duty.
a. Mandamus: writ from Superior court forcing either lower court or an official to do specific act
b. Decisions that are political [or which are submitted to executive] can never be made in court
c. Decisions dealing w/ duty not depending on executive discretion but on particular acts of congress, & general principles of law can be made in court
2. Does court have power to give Marbury mandamus he seeks?à NO, Act unconstitutional.
a. §13 of Judiciary Act authorize SC to issue mandamus to Secretary of State: Act gave SC more power in original jurisdiction à §13 authorizes SC “to issue writs of mandamus, in cases warranted by principles & usages of law, to any courts appointed, or person holding office, under authority of US”
b. §13 inconsistent w/ Art. III: Article III, §2, cls. 2: SC shall have original jurisdictions [over things listed]. Otherwise, SC shall have appellate jurisdiction w/ exceptions & under regulations as Congress shall make. à If original Jurisdiction limited to cases listed in Art. III = Act conflicts w/ Art. III by giving SC wider spectrum of jurisdiction = Judiciary Act Unconstitutional!
IV. Take Away: SC has authority to declare statute unconstitutional, & decline to enforce it
A. Issue: “Whether an act, repugnant to constitution, can become law of the land”
B. Rule: Const. invalidates & limits powers of gov’t, if gov’t body does something Const says they can’t, action ineffective b/c unconstitutional
C. Held: Const = supreme law of land & §13 void [court doesn’t have original jurisdiction over this matter] D. Reasoning: Job of court is to interpret statutes to see if consistent w/ Const. If Const. was not supreme law of land, other laws would subvert it & there would be no point in having Const.
V. Reasoning – Why Marshall Ruled as he did:
A. Vehicle for Marshall to establish Judicial Review [sets up Federalist precedent]: The Ct will determine If there is in fact a conflict between the statute and the Constitution.
Marshall finds this power vested:
(1) Language of Const. seems to be directed at the cts.
(2) Judges take oaths
(3) It is the central function and duty of the court and judges
(4) Article III, Section II, Clause 1: evidence that the Constitution gives to the cts the power of judicial review i.e. the power to interpret „The judicial power of the US is extended to all cases arising under the Constitution.“  B. Marshall is federalist [strong central gov’t] – able to rule against Marbury, in favor of present administration, avoiding political repercussions [possible impeachment] C. Feared writ would not get enforced if issued [makes judiciary look weak] D. The way in which Marshall has denied the ct power actually grants the ct power: i.e. grants the ct the power to deny enforcement of decisions of some other branches of gov if those decisions are inconsistent w’ the constitution.
VI. Critiques of decision
A. Marshall argued once commission signed & sealed, there is a legal requirement to deliver it, but no law says so à commission should be final upon delivery b/c best evidence to having commission is it being handed over [evidentiary argument] AND can’t build life around promise, want to make sure it was delivered [reliance argument] B. Marshall said, “Where there’s a right, there’s a remedy,” but possible to have right w/o legal remedy [ex: statute of limitations has run, acts done using discretion of political actors = discretionary acts] C. Marshall says delivery of commission is duty and ct can issue mandamus to Madison w/o intruding on executive discretion. BUT it’s not duty but discretionary matter. Remedy is to impeach or vote Jefferson out of office
D. §13 means that once SC has appellate jurisdiction, they then can issue a writ of mandamus [more consistent w/ Art III on implying jurisdiction] à “SC shall have power to issue writ of mandamus to any persons holding office, under authority of US” à “power” = what court can do once it has authority to hear case/already has jurisdiction.
E. Const. grants SC original jurisdiction in certain cases, but does not say SC can’t expand jurisdiction.
F. Opinion never says which branch of gov’t has power to declare law unconstitutional. Closest is, “It is emphatically province & duty of judicial department to say what law is” à deciphering laws is what court does & he alludes to idea that it should be their duty; holding doesn’t necessarily say SC has power to declare laws unconst.
VII.Support for Marbury from Framers
A. Principle 1: Jurisdiction prerequisite = ct w/o jurisdiction not allowed to say anything about case, but this case does…
B. Principle 2: Avoid constitutional issues = court will not pass up const question…if there is also present some other ground upon which case may be disposed of
VIII. Roles of three branches in assessing constitutionality of legislationà Three possibilities
A. Legislature & executive are guardians of Const; courts have no role à if 2 branches concur, then no reason why courts should get involved [ex: UK system- doctrine parliamentary sovereignty]
B. Courts have exclusive authority to assess constitutionality of statutes à if statute challenged & ct upholds it, pres. has to en
fferson] “opinion giving judges right to decide what laws are constitutional, & what not for themselves in their sphere of actions & for Leg & Exec also, would make judiciary despotic branch.”
F. Brown was written broadly: has the effect of striking down similiar status across the country. (Judicial review is powerful ==> what justifies the existence of this power?)
1. Justifications for the power of judicial review:
a. Avoid concentration of power
b. Appointment and retention lends to an insulation from politics: Justices have life tenure, all hold during good behavior, process of appointments
c. Scholarly: Expertise in interpretaion and legal arguments : Ex – in deciding on abortion a Judge must justify their position against the Constitution: a not-so-political approach
d. Case-specific process: gradual and flexible adaption to circumstances. The context of a specific case can bring an issue to head
e. [all of these justifications are arguably good or bad things]
Calder v. Bull [ED1]  àDiffering Views on Nature & Origin of Legislative Power
○ Philosophical limits on Gov’t Powerà court refused to set aside state legislative action that overrides judicial probate proceeding. Case known for differing views of Chase and Iredell on nature & origin of legislative power.
○ Chase: “There are certain vital principles in our free republican gov’t, which will determine & overrule apparent & flagrant abuse of legislative power.” à legislative action limited by social compact that gave legislature its power i.e. courts should be able to appeal to natural rights in making constitutional decisions. à Approach generally taken today.
· If legislative power is contrary to basic principles (not in const) of natural law, then they can be held void.
○ Iredell: Unless law violates specific constitutional provision, “court cannot pronounce it to be void, merely b/c it is, in their judgment, contrary to principles of natural justice.” à const limitations only restraint on legislative action; no reason why courts should be able to define & apply natural law better than legislature; if legislative actions do not violate anything written down, it cannot be held void.
POLITICAL CONTROL OVER THE FEDERAL COURTS
· Art. I, §8 articulates range of congressional powers related to war: power to “declare War,” to “provide & maintain Navy,” to “make Rules for Gov’t & Regulation of land & naval Forces,” etc. AND presidential power to declare war
Congress controls whether war is funded or not [Congress can say no funds for war, unless decide to get $ in another way]
Ex parte v McCardle– WHAT HAPPENS WHEN THE CT EXERCISES ITS POWER IN A WAY THAT THE OTHER BRANCHES FIND DISAGREEABLE? Eliminated app jurisidiction for habeas corpus
Facts: Civil war rebellion period. McCardle published articles criticle of the military officials. Angry of gov’s control over the southern states and reconstruction. McCardle arrested by the military and held in custody. He will be tried by a military ct. McCardle doesn’t want to be tried by the military so he files a writ of habeus corpus: a ct order to a gov official to turn over someone in its custody. This doesn’t mean the person goes free. If writ is granted, fed ct will have to determine if there is any legal grounds to release the person. It is a right to petition the court so that the court can review one’s detainment.
Circuit Ct denied the writ citing that his detainment is legal.
McCardle appeals citing a federal statute 1867: grants the appellate jurisdiction of the SC in the case of habeus corpus.
McCardle will have to establish (1) the grounds of jurisdiction (fed statute of 1867) and (2) substantive legal grounds (Constitution) or the relief that he seeks.
McCardle’s constitutional arg: Congress doesn’t have the power to reconstruct and declare military rule on US soil: not an enumerated right under Article 1, Section 8.
McCardle’s jurisidictional arg: If the statute of 1867 never existed, where could McCardle turn? (1) perhaps he could rely on Act of 1789, (2) Article III: SCOTUS having original jurisdiction, (3) Suspension clause – writ not expended unless in cases of rebellion or invasion upon public safety may require it: reconstruction is post war/rebellion/invasion. The writ exists unless it is suspended. Only in exceptional circumstances can Congress remove the privilege of the writ.
U.S. Const. art. I, § 9, cl. 2 (the Habeas Corpus Clause)
· Constitution guarantees the rights to those accused of crimes
· Provides that the privilege of a writ of habeas corpus, which allows a prisoner to challenge his or her imprisonment in court, cannot be suspended except in extreme circumstances of rebellion or invasion, where the public was in danger.
Congress pases 1868 statute which repealed the 1867 Act during the case’s appeal: this repeals SCOTUS’s appellate jurisidiction to hear habeaus corpus appeals.
Ct finds: The 1868 Ct repealed their appellate jurisidiction to hear the case. No jurisidiction = McCardle will be heard by a military tribunal.
What makes the Ct believe that Congress has this power? Exceptions Clause: Article III, Section 2, Clause 2: SC has appellate jurisdiction with such exceptions and under such regulations as Congress shall make.
The exception here is removing the ct’s appellate power over habeus petitions.
[ED1]Refer to class notes 1/16
[ED2]Insert Ex parte McCardle See 1/23 notes