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Constitutional Law I
West Virginia University School of Law
McLaughlin, James A.

Constitutional Law – Spring 2014 – Chemerinsky, 4th

Professor McLaughlin

How should the Constitution be Interpreted?

Ø 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.

Ø 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.

The Federal Judicial Power

Article III of the Constitution created the federal judiciary and defined its powers

The judicial Power of the United States shall be vested in one Supreme Court and in such inferior courts as Congress may from time to time ordain and establish

Defines the federal judicial power in terms of “cases” and “controversies”

Proscribes Supreme Crt original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and those in which state shall be a party

§ Original Jurisdiction = Trial Jurisdiction

§ Article III acts as a ceiling this cannot be expanded (Marbury).

Supreme Crt. Has appellate jurisdiction in all other cases, both as to law and fact, subject to such exceptions and under such regulations as Congress shall make.

Authority for Federal Judicial Review:

Marbury v. Madison

– Court dismissed case for want of jurisdiction

Congress cannot expand the Supreme Court’s original jurisdiction abilities past that already granted by Article III.

– Court has a duty to say what the law is and to reject unconstitutional acts which are repugnant to the Constitution

**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 S. Crt.

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 said, “It is emphatically the province & duty of the judicial department to say what the law is.”

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 S. Crt. had no jurisdiction in the case. Effective avoidance of judicial humiliation.

Judicial Review of State Judgments:

– Martin v. Hunter’s Lessee:

§ 25 of 1789 Judiciary Act allowed the Supreme Court to review state court decision by a writ of error to the state’s highest court in specific situations.

VA Crt. Of Appeals rejected the Supreme Court’s ability to review state court decisions.

Supreme Crt. Upheld ability to review state’s highest crt. Judgments based on:

Recognition that state prejudices may obstruct or control the administration of justice in federal issues

Need for uniformity in the interpretation of federal law

Very structure of the Constitution required this authority.

– Cohens v. VA

Crt. Extended its ability to review state crt. Decisions to criminal cases where ∆s claimed that their conviction violated the Constitution

Parity debate: state judges not to be trusted to adequately protect federal rights because they are dependent on state legislatures for salary and office.

Limits on Federal Judicial Power

Congressional Limits > Exceptions & Regulations clause to Supreme Crt. Appellate jurisdiction.

Ex parte McCardle

Upheld Congressional Act which expressly repealed jurisdiction of the inferior federal courts to hear a habeas corpus petition (previously granted under the 1867 act

Important that another avenue for federal habeas corpus petition was left open under the 1789 act.

United States v. Klein

Congress cannot dictate the outcome of a ruling by telling the Supreme Court pardons should not be granted.

Can affect appellate jurisdiction but cannot tell the Court how to rule on a decision

Important here that Congress was also trying to limit the power of the President to issue pardon which was expressly granted to the Executive branch alone > Congress attempting to overstep the bounds of separation of powers.

-Gives very simple examples of what is unconstitutional.

But if the judiciary does not interpret the Constitution, 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 S. Crt. 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.

Jefferson’s views: bank not justified under the power to tax, or under the gov’t’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

*Unplain meanings—multiple meanings or vagueàthese disputes go to the court

*Interpreting the constitution is somewhat subjective.

-Justification of Judicial Review-

Article III justification: If Constitution is law, and we lay down the law. If law and constitution conflicts, constitution trumps ordinary legislation

-What branch is more competent to make this decision? Who should have final discretion as to the meaning of the Constitution in close cases?