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Constitutional Law I
Wayne State University Law School
Rothchild, John A.

Constitutional Law
Winter 2011
A. Authority of the courts vis-à-vis other branches of government
(1) Marbury v. Madison (1803)
Outline of Decision
1.      Does M have a right to the commission? (Paper that says M is hereby appointed as justice of the peace – needed to prove position) (Yes)
2.      Does the law provide Marbury with a remedy? (Yes)
3.      Can this court give Marbury the remedy he seeks?
a.       Can a court issue the mandamus remedy that Marbury seeks?
b.      Does this court have the power to give Marbury the mandamus he seeks? (Yes)
                                                  i.      Does § 13 of Judiciary act authorize SC to issue a mandamus to the Secretary of State?
                                                ii.      Is § 13 of Judiciary Act inconsistent with Art III? (Yes)
                                              iii.      Does the court have authority to declare a statue unconstitutional, and decline to enforce it? (MOST IMPORTANT YES)
·         When the ct identifies a conflict between a constitutional provision & a cong statute, the court has the authority (& duty) to declare the statute unconstitutional and refused to enforce it.
RULE: The Supreme Court has the power, implied from Article VI, §2 of the constitution to review acts of congress, and if they are found repugnant to the Constitution, to declare them void.
·         Question 1: was Marbury v. Madison in logical order
o   2 principles conflicting in this decision:
§  1. If ct does not have subject matter – nothing else to do but dismiss the case
§  2. Court tries to avoid passing on constitutional issues unless it has to
o   This case is a rare example when two clash – in order to decide on subject matter, had to pass on the constitutionality (normally these 2 principles do not come into conflict)
·         Judicial review accepted as correct decision
o   Federalist 78: Hamilton assumes court was will judicial review powers
o   Opponents & proponents agreed courts would have judicial review even though nothing in constitution speaking directly to it.
·         11th amendment: federal court cannot hear cases for individual against a state
·         Prudential doctrine: supreme court can decline to exercise original jurisdiction so long as there is another court that can hear that court
(9) Cooper v. Aaron (1958)
·         Important because it addresses the meaning of Marbury v. Madison
·         1954 brown v board “schools cannot bar children on racial ground”
·         1955, year later, remedy must take steps to end segregation with “all deliberate speed”
·         Arkansas State to various steps to prevent desegregation
RULE: State officials may not refuse to obey federal court orders resting on constitutional grounds
o   SC claims broad authority over the meaning of the constitution.  Other court may decide but once SC say how to interpret constitution it is final
·         Compare to Marbury
o   Marbury: court has power to decide law is unconstitutional (so can congress/president)
o   Cooper: SC has final say – what interpretation of constitution applies to everyone (further reaching)
B. Federal court review of state court decisions (appellate authority)
SC’s review of sate court judgments is limited to questions of federal law
(14) Martin v. Hunter’s Lesse (1816)
Issue: Whether SC is constitutionally authorized to review the constitutionality of state court decisions
·         Case 3: VA court says: “no we don’t have to follow the command of the supreme court”
o   SC lacked jurisdiction, because statute section 25 of judiciary act is unconstitutional”
·         Judiciary act 1789 §25: gives supreme court certain rights to review decisions by highest court of state
o   Issue 1: is section 25 constitutional
§ US Supreme Court: Framers were concerned about states favoring their own people – SC saw this as a way they intended to limit that
·         Professor: do we think its true state judges are likely to show bias towards state?
o   Issue 2: is the case at hand within the section 25?  Not as Important but yes
·         Ct: Rejected VA’s sovereignty argument:  Cons cut back on state sovereignty, no reason to presume state judiciaries were immune from this set of limitations
·         Ct: Uniformity: Need for uniformity in decisions throughout the nation interpereting the constitution.
RULE: The U.S. SC can review the constitutionality of a decision by a state’s highest court.
·         How does this case relate to Marbury v Madison
o   Both about authority of supreme court to review actions to the constitution
§ Marbury v Madison: separation of powers, roles of different branches of government
§ Martin: is about federalism, different powers of the federal and state government
C. Congressional control of federal court jurisdiction
Issue: To what extent many Congress curtail the jurisdiction of the Supreme Ct, or lower federal cts?
(30) Ex Parte McCardle (1869)
Issue: the extent Congress has the power to make exceptions to the Supreme Court’s appellate jurisdiction in cases in which it has already granted jurisdiction.
·         Congress passed a law limiting the court’s ability to serve as appellate.
·         Ct says yes, under exceptions clause, under article III:
RULE: SC derives its appellate jurisdiction from the Cons but the Cons also gives Cong the express power to make exceptions to that appellate jurisdiction.
(34) Limits
Note 2: US v. Klein: Cong tried to limit SC jurisdiction regarding merits of the underlying action – SC said no, cannot do that, because it is a judicial type of activity – not a legislative one.   “Any jurisdictional limitation must be neutral. Cong cannot decide merits under guise of limiting jurisidciton.
Martin v. Hunter’s lesse: #2: Cong has to set up some lower court, has to be court to exercise full judicial power, (i.e. exclusive federal issue, bankruptycy)
II. The Necessary and Proper Clause
A. The Necessary and Proper Clause
Congress may “make all Laws which shall be necessary & proper for carrying into execution”
(70) M’Culloch v. Maryland (1819)
·         2 issues: 1. Authorities of Congress (to incorporate a bank) 2. Limitations on the ability of states to legislate.
·         M’Culloch (D) cashier at Baltimore branch of the U.S. Bank, issued bank notes in violation of MD P statute providing that “no bank, without authority from the state, could issue bank notes except on stamped paper issued by the state.”
·         Federalism is the basis of the constitution’s response to the problem of governing large geographical areas with diverse local needs.
·         The US federal structure allocates powers between the nation & states by enumerating the powers delegated to the national government & acknowledging the retention by the states of the remainder.
·         The move from the Articles to the Constitution was a shift from a central government with fewer powers to one with more powers.
·         Powers of national government come directly from the people, not the states.
RULE: 1. Certain federal powers giving Congress the discretion and power to choose and enact the means to perform the duties imposed upon it are to be implied from the Necessary and Proper Clause.
·         Test: so long as the means is rationally related to a constitutionally specified object, the means is also constitutional (Assuming it does not violate any specific prohibition) (respect cong, do not violate SOP)
RULE: 2. The federal constitution & the laws made pursuant to it are supreme & control the

6.        The potentiality of embarrassment from multifarious pronouncements by various departments on one question. [49]  
(46) Baker v. Carr (1962)
·         Tennessee failed to enact any reapportionment measures from 1901 until this suit.  Resulted in wide disparity in the voting power of various counties, case brought in Fed Ct based on denial of equal protection.
·         Issue: does a challenge by state officials of a claim based on a U.S. Constitution ground present a nonjusticiable political question
RULE: A challenge by state officials of a claim based on federal constitutional grounds does not present a nonjusticiable political question
·         “The nonjusticiability of a political question is primarily a function of the separation of powers.”
·         “[I]t is the relationship between the judiciary and the coordinate branches of the Federal Government, and not the federal judiciary’s relationship to the States, which gives rise to the ‘political question.’
·         Dissent:  Ct needs to have prestige, because it does not apportion money (congress) or the army (pres), and deciding political decisions like this one will remove the prestige of the court & other branches would have no reason to do what court says
o   Disagreement with “the doctrine of which we treat is one of political questions, not one of political causes” (49)
(52) Powell v. McCormack (1969) (Factor #1)
Issue: Is a challenge to the power of Congress to exclude an elected member of Congress for misconduct a nonjusticiable political question?
·         Powell (P) was excluded from 90th congress due to inappropriate behavior by a congressperson, brought this action for a declaratory judgment and for back salary after his re-election to the 91st congress
·         Difference between Exclusion and Expulsion
o   Exclusion: cannot start, Expulsion: start and then kick him out
§  Exclusion requires a reason from Art I, Section 5: textual commitment to house to seat/not
§  Expulsion for any reason at all but can expel for 2/3 majority
RULE: A challenge to the power of Congress to exclude an elected member of congress for misconduct is not a nonjusticiable political question.  Political question is the same as the merits question here and Congress had not been given the right to impose additional qualfications on member for P.
(60) Davis v. Bandemer (note 10) (1986)
·         Ct decided there are judicially discernible & manageable standards by which gerrymandering cases decided.
·         “Unconstitutional discrimination occurs only when the electoral system is arranged in a manner that will consistently degrade a voter’s or a group of voters’ influence on the political process as a whole.” [61]  
(62) Vieth v. Jubelirer (Note 10) (2004)
·         Standard of gerrymandering is barely discernable.  Plurality concluded political gerrymandering claim was nonjusticiable because there are no judicially discernable and manageable standard to apply – but could not get 5th vote, therefore still confusing standard of Davis applicable.