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Constitutional Law I
West Virginia University School of Law
Bastress, Robert M.

Constitutional Law


Spring 2010

How should the Constitution be Interpreted?

-Originalism- view that judges deciding constitutional issues should confine themselves to enforcing norms that are stated or clearly implicit in the written constitution. Court should find a right to exist in the constitution only if it is expressly stated in the text or was clearly intended by its framers. If constitution is silent, then it is for the legislature to decide the law. Constitution should evolve solely by amendment.

-Nonoriginalism- contrary view that courts should go beyond that set of references and enforce norms that cannot be discovered within the four corners of the document. It is permissible for the court to interpret the Constitution to protect rights that are not expressly slated or clearly intended. Constitution should evolve by amendment and by interpretation.

What branch should be the authoritative interpreter of the Constitution?

*Obvious benefit to having a single institution, the judiciary, resolve disputes.

Federal judiciary is insulated from majoritarian politicsàarguably best suited to interpret and enforce the anti-majoritarian American Constitution. Province of the judiciary to say what the law isà have experience in the law.

Marbury v. Madison

A very competitive election. Result hinged on outcome in one southern state. Took weeks for authorities to determine who won. Republican candidate had been elected.

Electors- cost two votes for President. Leading can didate elected President, runner up VP.

*Adams wanted to ensure a Federalist court. Chose John Marshall of Supreme Ct. Justice [did not have judicial experience, but a distinguished member of society]. Marshall selected but continued to serve as Acting Secretary of State for remaining 5 weeks of Adams’ presidency.

*Judiciary Act of 1801- Signed by Adams. New system of circuit courts and extended the scope of federal jurisdiction. 6 new circuit courts with 16 new judges. Capable of hearing cases regularly and conveniently throughout the nation. Enhanced the efficiency, fairness, and authority of the federal courts. Reduced number of judges by one so Jefferson could not make an appointment.

*Organic Act for DC. Created position of Justice of the Peace. 5 year term. William Marbury one of the 42 names Adams submitted for the appointment.

*Before leaving office Adams confirmed the appointments, so called “Midnight Appointments”. John Marshall as acting Secretary of State affixed the Great Seal. Not all commissions were delivered to appointees.

-Jefferson found undelivered commissions. Destroys them. And reduced the number of justices of the peace and nominated Republicans in place of many of Adams’ appointees.

Marshall Court Early Decisions

1. Wilson v. Mason- S.C. made clear that it would be the ultimate authority in land disputes between local settlers and nonresident land companies.

2. Schooner Besty- Court staked its claim to authority in matters of foreign affairs.

**Marshall avoided confrontation of decision by coupling the assertion of the court’s authority with a narrow result.

The Big Constitutional Issue between Republicans and Federalists

*Republicans- Was the Constitution principally an instrument of popular government, in which the will of the people should control even the question of constitutional meaning?

*Federalists- Was the Constitution principally an instrument of the rule of law, to be enforced by independent judges even in the face of popular opposition?

Argument over repeal of Judiciary Act

Federalists- Argued that requirement of circuit riding by S.C. violated Article III granting S.C. appellate jurisdiction in most cases and original jurisdiction in only a few.

àAlso, removal of newly appointed circuit judges would violate the constitutional provision of life tenure for Article III judges.

*Act repealed by Congress. Dismissed circuit judges, delayed Supreme Court’s June meeting, and mounted a credible threat of impeachment of the Supreme Court Justices.

**Marbury decision came from a defeated and demoralized court.

-Republican dominated Senate & State Department refused to provide documents proving that Marbury, Ramsay, Harper, and Hooe had been appointed and commissioned, but that the commissions had not been delivered.

-The person/witness most acquainted with the facts was Marshall, who was presiding as Chief Justice.

*Marshall decided that 1) Marbury was entitled to his commission. 2) Marbury was entitled to the writ of mandamus as a remedy for deprivation of his office. Court given authority to issue affirmative orders to the executive. Writ was purely ministerial and executive in nature. 3) Marshall declared it was unconstitutional for Congress to assign the mandamus power, a species of original jurisdiction, to the Supreme Court. 4) Ended opinion with ringing defense of judicial review: Court can decide what rules to apply and how to interpret. Court can decide constitutionality. Marshall careful to limit practice of judicial review to cases of a judicial nature.

Marburyà Marshall’s oblique commentary on the Judiciary Act repeal. Decision stated Supreme Court had no jurisdiction in the case. Effective avoidance of

determine what is constitutional?

Why should the court determine constitutionality?

-Marshall assumes objective, transparent meaning of the Constitution.

Two problems: Is there such a thing as the objective meaning of any text? Even if there is, it is often hard to get to.

-Gives very simple examples of what is unconstitutional.

But if the judiciary doesn’t, what of separation of powers?

It is the province of the judiciary to say what the law is (to choose between conflicting laws)

-That’s fine, but that doesn’t mean you have to pass on constitutional grounds – you can just pick which law is more proper.

§ Judicial power extends to all “cases and controversies arising under the Constitution”

§ Independent judiciary- get to the true meaning of the laws

– Congress can add to, perhaps take away, original jurisdiction.

– “What has the Supreme Court taught?”- 1970- McLaughlin article- 72 W.Va. Law Review- second part at page 326

-“Reason is no Mount Sinai”à Abortion not a fundamental, natural right. Must use politics, sway the public. What the public believes is a fundamental right.

1/19/10 lecture

Jefferson’s views: bank not justified under the power to tax, or under the government’s power to borrow money, bank’s bills not interstate commerce.

àOriginal Intent: Not justified. A proposition was made to Constitutional Convention and it was voted downs.

àRejected the “necessary and proper” clause. Necessary in the constitution does not equal convenient. Bank would be merely convenient.

àStrict Constructionist

àUnless Washington was “tolerably clear” that the bank bill was unconstitutional, he ought to defer to the legislature. In a close case, executive should defer to legislature. Jefferson thinks constitutional questions like this is a matter of individual opinion rather than finding the true meaning. Notion of deference to legislature.

“The distinction exists and must be marked out.”àeven though distinction is murky and hard to see. It is out there.

*Plain meanings—usually clear and do not get to the court