Select Page

Constitutional Law I
West Virginia University School of Law
Ashdown, Gerald G.

CONSTITUTIONAL LAW I OUTLINE – Professor Ashdown – Sullivan & Gunther 17th – Spring 2013
Marbury v. Madison (1803) pg.3
Facts: There was a political struggle between John Adams (federalist), and his successor Thomas Jefferson (Republican/Antifederalist). Adams appointed a number of new judges, including justices of the peace for the District of Columbia.  Commissions for these justices of the peace had been signed by Adams, but not yet delivered by the time he left office.  The Jefferson Administration refused to honor the appointments for which commission had not actually been delivered.  Marbury was amongst these undelivered commissions, and sought a writ of mandamus in the S.C.
2 important Federal Acts:
(1)   Circuit Court Act – created 16 new circuit judgeships and reduced the number of judges from 6 to 5.
(2)   Organic Act – created 42 justices of the peace of the District of Columbia.
3 Issues:
(1)   Right to Commission – Yes, justices become entitled to commissions when they are signed by the president and sealed by the Secretary of State (none other than Marshall himself).  He could have ended this entire case by ruling that delivery was required to be valid, but he took another route.
(2)   Remedy – (Does Marbury have a right against the executive; can he force the executive to deliver the commission?) This questioning created the court’s authority to review executive and political questions.
–          if the act is political, then its within the political discretion of the executive (Art. II); it is a political matter that the court cannot review.  But if it is a duty created by congressional law, then the court can review it.  Marshall ruled that the refusal to deliver the commission was a duty, not a political question, so the court could review it. (Judicial Review).
(3)   Writ of Mandamus (orders an official to perform their duty) This questioning gave them power to review acts of the legislature – Judicial Act of 1789/Sect. 13 – gave the S.C. original jurisdiction for writ of mandamus.  However, the court found that Sect. 13 created original jurisdiction, the act explicitly authorized the relief being sought by the plaintiff.
–          decided this act conflicted with Art. III Sect 2, which list all of the cases where the S.C. has original jurisdiction (“all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party”).
·         Why does this language not apply to Madison and Jefferson? Because it is talking about foreign officials, not elected or appointed U.S. officials.
–          Supremacy of Constitution and the court gets to decide: the constitutions is sealed (limited, and Congress cannot go beyond the Constitution and this is what the Act did.  He interpreted the Sect 13 and Art III in such a way to create a conflict between Congress’s statutory power and the Constitution.
·         Is a law enacted in contrast to the Constitution void? He says yes, but nothing in the Constitution says this. Marshall was rejecting and assuming power in one swoop.  He rejected Marbury’s claim and avoided a confrontation with Jefferson who would not have delivered the commission, and assumes the power of judicial review and the court has the authority to decide is a statute is unconstitutional.  Alternative, couldn’t the legislature or executive decide if it’s constitutional? Also he could have said that the constitution is only a set of guiding principles that should be taken into account when branches are acting, not that it is fundamental and paramount law.
Overall, any law in conflict is invalid, and the court gets to decide.
How would the S.C. operate if there was to such thing as j.r.?
·         It would monitor disputes b/t the executive and legislature.
Why do we care about Marbury?
·         Activist judge – more inclined to support this notion (j.r., make law from the bench)
·         Strict constructionist – oppose this notion. Restrict themselves from acting on political questions.
Is this countermajoritarian?
·         Brown v. Board of Ed. – desegregation.  However, judges are appointed by people who are elected.  Maybe it’s still democratic if Congress is not that connected and in touch with the people.  The court is adjudicating the real life issues of the people up close and personal.
·         There are countermajoritarian aspects in the constitution to protect the rights of minority because majority force can be ill willed.  The court also protects the minority through its counterm. mechanisms.
Baker v. Carr (1962) pg. 33
Facts:  the challenge was the apportionment of the Tennessee Assembly, which had not been reapportioned in 60 years, despite the state constitution that said representation is based on population, and despite the shift of people from the rural to urban area to work.  These large urban populations were didn’t have much representation.  Basically, minorities in the inner city were being affected.
–          the plaintiff said that this was a Constitutional question.  They argued this by not relying on the Guarantee Clause (Colegrove vs. Green – the Guarantee Clause is political), instead they relied on the 14th Amend/Equal Protection Clause.  This clause is alleging the same thing in Colegrove, but the court makes a distiction.
·         Just b/c this issue is political in nature, doesn’t make it a political question.  The court lists factors that make the issue political, and points out two for this case:
(1)   the issue had not been textually committed by the Consitution to another branch of government (Art IV)
·         Art IV Sect 4/Guarentee Clause “the U.S shall guarantee to every State in this Union a Republican Form of Government . . . [,]” which allows the court to dispose of reapportionment cases b/c in Luther it held that all GC claims presented non-justiciable political questions.
·         Colegrove – only difference is that it happened in another state, the court only applied a different clause to have the power to adjudicate the case.
·         Luther v. Borden – was a struggle b/t two different governments. It held that all GC claims presented non-justiciable political questions.
(2)   the issue is not judicially discoverable and manageable standards for resolving for which the court lacked  (E/P) – this wasn’t an issue that the court couldn’t manage.
(3)   Finality
(4)   Conflict/embarrassment
Conclusion: (Reynolds v. Sims) one-person-one vote, apportion the districts equally.  Equal protection generally requires the uniform treatment of persons standing in the same relation to the governmental action questioned or challenged.  Since legislators represent people, there was no reason for making one person’s vote worth more3 than another’s in the election of those legislators.
What does Frankfuts think about this? (pg. 37)
·         He thinks this really involves political theory, meaning there is more than one way to approach this situation, but not for only one department to decide.  This is not the place for the S.C. to decide the method of apportionment.  There are other ways to apportion the legislature: geographic, demographics, incumbency/experience.
Can we distinguish Baker from Luther/Colegrove?
·         Luther/Colegrove suggests that the court isn’t going to get involved in battles b/t political factions
·         Equal Protection in Baker: there aren’t two battling factions in Baker, just citizens of Ill and Tenn. And their rights to representation.
Powell v. McCormack (1969) pg. 39
McCormack (Speaker of the House) – this is none of the court’s business.  Art I Sect. 5 cl. 1 (each House shall be the Judge of the Qualifications of its own members) – # 1 Textual demonstrable argument being raised.
Court – not necessarily given to a specific branch; “at most a textually demonstrable commitment to Congress to judge only the qualifications expressly set forth in the constitution” (age, residency, citizenship).
Nixon vs. U.S. (1993)pg. 41
Nixon – problem is Art 1 Sect 3 cl. 6, says that the Senate shall solely try impeachment, and Nixon argues that this applies to the entire Senate, not a committee collecting evidence, evaluating it, and presenting it to the Senate.
Court – the word “try” is a textually demonstrable commitment.  There is more than one way to try a case, therefore, more than

so might not have a great effect on the animals.
(2)   Redressibility (what the Ps want) – they want an injunction.  Its hard to show that just b/c the pollution is there, the pollution is injuring the particular individuals bringing suit.  Court rejects the Citizen’s suit provision (procedural injury suit in place to help individuals to establish standing; this is an enforceable mechanism used to allow private citizens to bring their action and avoids government intervention).
·         Friends of the Earth v. Laillaw Environmental Services – here, they had an actual injury-in-fact (pollution prevented them from fishing, swimming in river) – they could prove individual injury. Ps in present suit, have a broad, abstract claim involving general grievance (public interest/prudential), which is not a constitutional requirement that gets automatic protection. Unlike Laillaw, you didn’t claim it was injuring you personally, only that you planned to visit there again someday in the future to see the animals, but you made no plains and bought no airline tickets.
Roe v. Wade – moot b/c she had her baby, but there is no way such a case can be ruled by the court because its always going to be moot since the pregnancy term will end before the usual appellate process is complete, so give an exception b/c there is a likelihood of future reoccurrence of past harm, either to the plaintiff personally or the group she represents.
Why do courts have the standing doctrine?
·         To be judicially cautious in exercising the Marbury power (restrict it), to provide a self-check and give power back to the other branches.
·         Also the issue will be more narrowly defined, instead of abstract; advisory opinion to an hypothetical issue is to be avoided.
·         Art III sec 1 doesn’t create federal courts, it gives Congress the power to create inferior courts (s/p)
Martin v. Hunter’s Lesse: pg. 71
Issue: Whether the Supreme Court is constitutionally authorities to review the constitutionality of state court decision?
Court: the Judicial Act of 1789 gave the court appellate review of state court judgments.  Also this case involved a federal treaty (Art.III § 2 authority), gives the court the authority to hear cases involving treaties.  The state court cannot be independent b/c of the Supremacy clause (Art. 5), which is directed at the state courts; you are apart of the federal system.
Reasons the state courts are not independent:
(1)   uniformity of law across the board; different interpretations of the law is not wanted
(2)   hostility – might be state interest that are hostile to federal interest
(3)   independence and expertise (Cohen v. Virginia) – you’re not elect, no life tenure and salary protection, which makes us immune from public pressure.
Checks on the Judiciary:
·         Art. V – amendment process
·         Congress sets up the size of the court (no where listed in the Constitution), but implicitly implies that Congress can do so.
·         The selection process of judges.  However, history has shown that appointed judges might have independent ideologies from the executive once on the bench.  The process is very slow too b/c it only happens so many years.
·         Impeachment: this only happened once (and it was for political reasons)
·         Art. III § 2 (McCardle) – Congress controls appellate jurisdiction