CONSTITUTIONAL LAW I
Fall 2011
Professor Chris Shafer
INTRODUCTION
• This course is primarily about governmental power – who has it and how can it be used.
• Also a course about the structure of our form of government.
• Two primary themes throughout this course:
– Separation of powers – the horizontal relationship between 3 branches of federal government; and
– Federalism – the vertical relationship between federal government and States.
KEY POINTS
• Main concept: The federal judiciary has the power, under Article III, to decide enumerated cases and controversies. The scope of this power includes the power to:
• Declare the meaning of federal law;
• Decide the constitutionality of federal and state laws and the acts of federal and state officials;
• Jurisdiction is original or appellate.
• Article III provides:
• Section 1 vests judicial power;
• Section 2, cl. 1 enumerates cases and controversies over which judicial power extends;
• Section 2, cl. 2 outlines original and appellate jurisdiction of Supreme Court
– Original jurisdiction very limited;
– Appellate jurisdiction over everything else.
• Scope derived from a series of decisions
• Power to review federal laws and the acts of federal officers, and to declare the meaning of the Constitution, found in Marbury v. Madison (1803);
• Power to review state court decisions affirmed in Martin v. Hunter’s Lessee (1816) (civil matter) and reaffirmed in Cohens v. Virginia (1821) (criminal matter).
• Power to review actions of state officials upheld in Cooper v. Aaron (1958);
• Congress may, but is not required to, create lower federal courts –
• Lower courts were established in Judiciary Act of 1789.
• Congress also has power to limit Supreme Court appellate jurisdiction
• Court upheld in Ex Parte McCardle (1869)
• Questions to consider
• Does it have to be this way?
• Should other branches have the power to “say what the law is”?
• Is judicial review anti-majoritarian?
ARTICLE III
• Section 1 – Judicial power of United States is vested in:
• One Supreme Court;
• Such inferior courts as Congress may from time-to-time establish
• Section 2, cl. 1 – Judicial power extends to all cases in law and equity:
• Arising under Constitution, United States laws and treaties.
– Judicial power extends to:
• Where United States is a party;
• Between two or more states;
• Between citizens of different states.
• Section 2, cl. 2:
– Supreme Court has original jurisdiction in cases
• Where a state is a party.
– In all other cases to which federal judicial power extends, Supreme Court has appellate jurisdiction, with such exceptions and regulations as Congress shall make.
• Congress may restrict Supreme Court’s appellate jurisdiction, and it has. See Ex Parte McCardle (1869)
– Could Congress completely divest?
MARBURY
• Issues:
– Does Marbury have a right to commission?
– Does Marbury have a remedy?
• Discretionary functions only politically reviewable;
• Remedy available if a specific legal duty, as here.
– Is mandamus an appropriate remedy?
• Delivery of commission not discretionary; mandamus an appropriate remedy;
• Supreme Court may review acts of Executive.
– Does the Court have original jurisdiction to issue mandamus?
• Madison was a person holding office, and thus was subject to mandamus under Judiciary Act;
• But this provision of the Judiciary Act was unconstitutional:
– Article III spells out Court’s original jurisdiction;
– Congress may not expand Supreme Court’s original jurisdiction.
– Can Court declare a law unconstitutional?
• Does Constitution or a statute control?
– In the event of a conflict, the Constitution prevails.
• Does the judiciary get to decide?
– “It is emphatically the province and duty of the judicial department to say what the law is.”
– “[A] law repugnant to the constitution is void.”
– Decision firmly established concept of judicial review and greatly enhances power of Supreme Court.
Judicial Review – Political Questions
Martin v. Hunter’s Lessee
• Issue: Whether Article III extends Supreme Court’s appellate jurisdiction to state court decisions?
– Congress has discretion to create lower federal courts
• If Supreme Court lacked appellate jurisdiction, it would be powerless to hear cases on appeal.
•Supreme Court appellate jurisdiction over state court decisions involving questions of federal law is necessary to ensure national uniformity –
–Can’t have 50 different interpretations of the Constitution, a federal statute or treaty.
LIMITS ON JUDICIAL REVIEW
POLITICAL QUESTION KEY POINTS
• Main concept: political questions, meaning those questions that are committed to another branch or those which the judiciary cannot or should not decide,
are nonjusticiable;
• A separation of powers issue:
– Constitution places responsibility elsewhere;
– Courts are not competent to decide.
• Two categories of political questions:
– Textual (sometimes called constitutional)
• The text of the Constitution suggests that another branch should decide;
– Prudential –
• Lack of judicially discoverable or manageable standards – “too hot to handle” category.
TEXTUAL COMMITMENT
• Impeachment: Nixon v. United States (1993):
– Test: Court examined the words “try” and “sole” in Art. I, §3, cl.6:
• “Try” was not meant as a limitation on procedures and does not provide judicially manageable standard of review;
• If courts could review impeachment procedures, Senate would not have “sole” authority to try impeachments.
– History: no evidence that Framers intended judicial review of impeachment proceedings:
• Rejected vesting impeachments
e duly raised
– To be reviewable, federal issue must have been raised and preserved in state court.
• Adequate and independent state grounds
– Adequacy: state law grounds are adequate if decision on issue of federal law cannot change the outcome;
– Independent: state law ground is independent if it does not depend on resolution of federal law – ie. decided on basis of state constitution or state statute.
– If state law tracks or is based on federal law, not likely to be adequate and independent state grounds;
– Absent clear statement, Court presumes state law grounds not adequate and independent – Michigan v. Long (1983).
Introduction to Legislative Power and the Commerce Clause
KEY POINTS
• Main concept: Legislative power is vested in the Congress. Most legislative power is enumerated in Article I, Sec. 8. The scope of Congress’ legislative power is quite broad.
• The Commerce Clause is often relied on as a source of regulatory power, but the scope of this power has changed over time. Is the biggest source of regulatory power for congress.
• Structure of Article I:
– Sec. 1: vesting of federal legislative powers
– Sec. 8: enumerated federal legislative powers 17 enumerated powers
– Sec. 9: federal limitations, what congress cannot do?
– Sec. 10: state limitations,
• Scope of legislative authority:
– An expansive reading in McCulloch
• Congress must have discretion to choose means;
• Necessary and Proper Clause – major source of implied power or elasticity for enumerated powers. Gives flexibility to the enumerated powers
• Commerce Clause
– Gibbons v. Ogden (1824) set the tone for an expansive reading of federal commerce power: land mark case…outlines the scope of the commerce clause
• Interstate commerce, and intrastate commerce with interstate affects, are within the commerce power.
– Later cases would continue to expand
• Congress can regulate the channels of interstate commerce – Champion v. Ames (The Lottery Case) (1903).
• Congress can regulate the instrumentalities of interstate commerce – Houston, East & West Texas Railway v. United States (The Shreveport Rate Case) (1914); The Daniel Ball (1871).
– Look for themes:
• Crossing state lines;
• Channels and instrumentalities;
• Local activities with substantial affects.
