9/26/00

1776July 4—Continental Congress met in Philadelphia and declared independence

1777Continental Congress proposed adoption of the Articles of Confederation

1781Last of the 13 states (Maryland) ratified Articles of Confederation (delayed because of dispute over western lands)

Article III—entering into a “league of sovereign states” (not like a nation) => this changes into law of land adopted by the people of the United States

Article II—states retained sovereignty and all powers not expressly delegated to the nation by this document => present Constitution eliminates “expressly”

Legitimated Continental Congress

Article V—delegates to Continental Congress chosen and subject to recall by the states

Each state had an equal vote (sovereignty)

Vote of 9/13 required

No separate executive; executive officers subject to congress

Judicial powers

  • Select people to determine disputes between states
  • Set up courts to handle crimes on the high seas
  • Establish an appellate court to deal with captures of enemy vessels on high seas

Powers of Congress

  • National defense
  • Foreign affairs
  • Mail
  • Common currency

Article IV—limits on states in the interest of interstate relations

Citizens of states treated equally

Extradition clause for criminal chargees

Full faith and credit clause

Articles created a very week nation—weak central government

1786Proposed Convention at Annapolis

1787Met in Philadelphia (all but Rhode Island)

  • Extent of federal power agreed on
  • Allocation of legislative powers by subsidiarity between central government and state –feds only intervene when states can’t handle it
  • Added power to tax and power to regulate trade with foreign nations, between states, and with Indian nations and “necessary and proper” clause
  • 10th Amendment—if not in list by interpretation, reserved for states
  • Equal representation cannot be amended without state’s consent
  • If electors don’t agree on president, elections go to House with each state getting one vote
  • Division between North and South
  • counting of slaves—3/5 because (1) advantage to south and (2) advantage to North because same counting tied to allocation of direct taxes
  • Fugitive Slave Clause—can’t be haven for runaway slaves
  • Prohibition on Congressional importation of slaves
  • Ban on export taxes

Continental Congress called to states to send delegates to consider amendments to the Articles of Confederation BUT the CC threw out the A of C—A of C were perpetual; required agreement of legislatures of all states

  • Policy arguments
  • If insist, cannot do it (RI)
  • Conventions instead of legislatures
  • Add legitimacy
  • People more likely to ratify
  • If have ratification by convention, then Constitution won’t be mere treaty like A of C (can be broken by the departure of just one state)
  • Articles were no longer in force because of abrogation
  • Right of revolution

9/27/00

Marbury v Madison

Held: no mandamus because of lack of jurisdiction

This is an appellate court but issuing a writ of mandamus is an act of original jurisdiction

  • original jurisdiction—trial court
  • appellate jurisdiction—reviews the decision of the trial court

Statute allows issuing writs of mandamus but only where that is incident to the exercise of appellate jurisdiction.

  • Court seems to have leapt out to create an unnecessary Constitutional issue

Statute allows for jurisdiction where an alien is a party. Mossman v Dickinson1800—one party is from foreign country A and the other from foreign country B—is there jurisdiction?

Must look at Constitution—defines the judicial power of the United States—doesn’t allow what this statute prescribes, only allows diversity jurisdiction

Instead of finding a Constitutional problem, can interpret the statute narrowly such that the Constitutional problem doesn’t arise.

Principle of Mossman is ignored in Marbury

Wherever it is possible to not ask the question of whether a statute is unconstitutional, take the narrower construction and don’t ask the Constitutional question

Less prevalent because Congress may have meant to test the limits of the Constitution and this would unduly limit Congress’s discretion

Is the statute in Marbury constitutional?

No because Article III limits the jurisdiction of the Supreme Court

  • Where an mbassador, a public minister, or other consul is a party—Isn’t the Secretary of State a public minister? No, because this deals with ministers of foreign nations.

Can’t Congress add to that jurisdiction? Language can be read either way.

  • The allocation of original and appellate jurisdiction is provisional subject to changes by Congress
  • But could argue that exceptions can only be made to appellate jurisdiction, not to original jurisdiction.

Another, non-textual argument: avoid surplusage; use common sense

If Congress can change everything that’s said in the Constitution, why would the framers have said it?

This is a common sense argument. If the result looks crazy, it must not be right.

Does this type of argument apply?

  • No because the framers did that with appellate jurisdiction, so why not do it with original jurisdiction

Marshall’s reasoning leaves a lot to be desired.

Marbury would win on the merits if the court had jurisdiction

He has a right to the commission

  • Marshall has no right to reach the merits—dictum of the worst sort

He has a remedy available to him

  • Marshall was wrong
  • §1331 wasn’t around in 1803 so this isn’t a federal question—lower federal courts are closed to Marbury too
  • state courts also don’t have jurisdiction because if federal courts don’t have the right to interfere with the executive branch, state courts certainly don’t

Can a court issue an order of mandamus against an executive?

  • Judicial review of an executive
  • This is not review of Congress but of an executive (from English common law)
  • Where the court has discretion, she has not violated the law

9/28/00

Questionable interpretation of Article III necessitated by a questionable interpretation of statute

Court decides merits, but does not have jurisdiction, so opinion is only advisory

Judicial Review of Executive Action

Judicial Review of the Constitutionality of Legislation

Article VI Supremacy Clause—If an act of the legislature is unconstitutional, the courts are not bound by it

  • Constitution is the paramount law therefore any law in conflict with the Constitution is invalid. Who decides what is in conflict with the Constitution?
  • Laws made in pursuance of the Constitution—Article VI says laws made under “this” constitution—possibly contrasting with laws made under the Articles of Confederation—this is consistent with reference to the retroactive language referring to treaties as opposed to the forward-looking language referring to laws (treaties are good even if made before the Constitution, laws are not—language is temporal, not about judicial review

Oath—“support this Constitution”—the only way to support the Constitution is to enforce the Constitution—purely circular—the oath simply says that judges shall do whatever the Constitution requires them to do

In order to decide a case you must decide what the law is and whether it is Constitutional BUT this is circular—could be that your decision of a case requires deferring to the legislature about the Constitutionality of laws

Judges must determine the law (judicial review) and the system of checks and balances sets up limitations on the power of the legislature—if the judiciary can’t review the legislature’s passage of laws, the limits of the branches are destroyed

  • Judicial review is a check
  • Consciences of the legislatures is a check
  • Consciences of the legislatures’ constituents is a check

What are the costs of judicial review?—If courts get it wrong, you have no other recourse—profoundly undemocratic

What checks are on the judiciary?

Article III gives judicial power over cases arising under the Constitution—is judicial review implicit here? Not necessarily. Again this is question begging.

Everyone who adopts a Constitution adopts judicial review—At the time Marshall wrote, there was no judicial review in any other Constitutions in the world

So, Marshall’s arguments aren’t airtight—there are plausible counter-arguments to all of his arguments

History

The framers intended judicial review of the Constitution

  • Luther Martin (p 15)
  • Federalist Papers No 78 (p 16-17)—inherent in the judicial function to decide what the law is; this is an important check on the legislature

Precedents in England

  • Limitations on powers of private corporations—charters limited corporation actions (ultra vires)
  • Measure the acts of a municipal corporation against its charter
  • Colonial charters worked the same way

Judicial review previously exercised

  • Ware—judicial review of state legislation in a federal court
  • Hylton v US (1796)—whether a tax on carriages is unconstitutional (judicial review)
  • Hayburn’s Case (1792)—pension law for disabled veterans, Secretary of the Treasury had review—unconstitutional because the Secretary of the Treasury was given judicial powers and courts were given non-judicial powers
  • In all this, Congress never objected to the judiciary’s review of its laws

10/3/00

Marbury v Madison

Judicial review of executive action

Judicial review of the constitutionality of legislation

  • Marshall’s arguments aren’t airtight
  • History suggests that judicial review of legislation is appropriate (says Currie)

Gold Clause (4(b)—Roosevelt)

Checks and balances—Marbury says court acts as a check on other branches and keeps them from exceeding the limits of the Constitution (this is a strong interpretation which suggests that the other branches must follow the courts’ decisions)

Decide a case—Marbury says that courts have a duty to decide cases and must do so within the limitations of the Constitution (clean hands) (this makes judicial review incidental to the court’s duties)

Both of these views denies Roosevelt the ability to ignore the Supreme Court because he is the Executive, and he is a party to the case

Lincoln re Dred Scott (3)

Court should be able to reconsider its decision and the only way that can happen is if it is challenged by passage of a new law

  • Lincoln does not suggest setting Dred Scott free
  • Lincoln draws the distinction between res judicata and stare decisis—court can only decide the case before it and is not required to follow the decisions that have gone before it
  • As a practical matter, allowing each individual to exercise their right to their own case destroys the judicial power to check other branches because of burdensome transactional costs (people must accept decisions in prior cases as governing their cases in order to preserve the institution of judicial review)

President Jackson (2)

This is like Lincoln, BUT

We aren’t worried about the checks and balances issues in Lincoln and Dred Scott because here we are adding another check, not compromising the judiciary’s check (reinforces the judicial check with an executive check as well)

What about state officers?

May a state court judge find something unconstitutional that the Supreme Court does not?

  • Uniformity and fear of state court judges being biased toward their own state’s laws (need for federal jurisdiction to vindicate federal rights)
  • Subsidiarity--§25 of the Judiciary Act permits the Supreme Court to review the decision of a state court when certain federal issues are at stake—only when the state court decides in the state’s own favor

May state executive officers find the federal executive’s actions unconstitutional?

  • State executive officers thereby act as an additional check on the executive branch
  • These actions can go on for federal judicial review

Congress passed a tariff solely to control trade as opposed to generate revenue—S. Carolina found this unconstitutional and made it illegal to collect this tariff—this may take the checks theory too far

City of Boerne v Flores (US 1997)

The difference is that this is not a case of Congress deciding to limit its own exercise of power on the basis of its own interpretation of the Constitution; HERE, Congress has no power to determine the validity of state law

Jackson’s own argument refutes this—the court is not bound by the Congress’s interpretation and Congress is not bound by the court’s interpretation

This is an attempt by Congress to bind the court

10/4/00

Is the other branch disregarding the judgement of the court itself or just refusing to use the court’s reasoning (Lincoln)

Will this undermine the judicial check on another branch or is this another check (Jackson, Jefferson)

Bottom line: What do we think is the real basis for Marbury v Madison (the case is ambiguous)? It could be:

Nothing but incidental to the business of judging cases

A crucial check without which constitutional limitations are meaningless

The court cannot be required to overrule a past judgement of its own by an act of Congress (eg school prayer, Miranda)

Can Congress take away the Supreme Court’s jurisdiction over school prayer?

Jurisdiction is based on federal question jurisdiction (Article III)

The Court does not have original jurisdiction in federal question cases (Marbury)

Congress can take the Supreme Court’s original jurisdiction away—Article III exceptions provision

If judicial review is because of checks and balances, then we must be very wary of construing the Constitution in a way that limits judicial review as would be the case in construing the exceptions clause to limit jurisdiction (Hart, p 81)

Ex Parte McCardle

The Court limits Congress’s exception to jurisdiction to only those cases brought under the act of 1867, but the litigant can bring the case by a different avenue and the Court can exercise jurisdiction there (see Ex parte Yerger)

The Court holds that this is merely a limit on the manner in which the case is brought not on jurisdiction over such matters generally

McCardle doesn’t hold nearly what it purports to hold

Congress’s attempt to expand the number of justices on the Supreme Court

The necessary and proper clause allows Congress to set up the Supreme Court

If you think that judicial review is merely incidental to the Court’s duty to decide cases, then you may be more willing to allow other branches to limit the judicial review power

If you think that the judicial review is an important check then that restrains how much power you’re willing to give other branches to limit judicial review

But where are the checks on the Court?

Impeachment is not a good avenue because it takes 2/3 which is hard to get for a wrong decision, particularly in a bipartisan system

Appointment—this is slow

Amendment to the Constitution is an option but this is limited because it is still the Court which interprets the amendment

Fear of losing power—illegal sanctions

Advisory Opinions

Explicit Constitutional Checks and Balances

  • Veto
  • Impeachment
  • Appointments
  • Amendments
  • Treaties

Separation of Powers

10/5/00

Checks

This cuts the other way—giving an opinion would be an additional check

Separation of powers

Giving advice now may impair the ability to review the decision later

Court of last resort

The word of the Supreme Court is final so that there can be no review once it issues an opinion

But the opinion would not be binding

For a court to answer such questions would be to go against Marbury which held that the Supreme Court did not have original jurisdiction over matters other than a few

You must ask executive advisors (eg Attorney General, Secretary of State)

But the executive clause should not be used to exclude the President from asking other branches but to permit him to ask his advisors

Extrajudicial

Federal courts can only exercise judicial powers

  • The Tenth Amendment says that if a function is not expressly given to the federal government, it is reserved for the state
  • The list of original jurisdiction cases for the Supreme Court is exclusive
  • It is implicit in the Constitutional language that the list of judicial powers is exclusive
  • There is one non-exclusive list—the list of actions that Congress can make federal crimes
  • History
  • Constitutional Convention—Council of Revision—allows judges to determine whether a law is unconstitutional before it is passed—this was not passed—should ask executive officers, not judges
  • Hayburn—pension case—court said that it could only exercise judicial powers
  • Chief Justice Jay appointed to negotiate the Jay treaty with England—this is a non-judicial power
  • Judges have given advice after having taken off their robes

Mistretta—says that judges can wear two hats as long as they don’t wear them at the same time

There is a provision that says that people in the executive cannot be in Congress—this suggests that this was the only double hat wearing that the Framers were concerned about

  • How do we know what judicial means?
  • Common usage
  • Technical legal term—when a technical term is used, then it understood to have the established meaning

Chisum v Georgia—one state’s citizen suing another state in court—textual decision

Calder v Bull—what is the meaning of ex post facto?—has a traditional meaning

Hilton v US—carriage tax=direct tax?—no because it doesn’t make sense to apportion the carriage tax according to the population

  • Cases or controversies

Involve adverse parties

No facts—lacks concreteness

Decision is final and binding

Judges in England gave advisory opinions but this doesn’t speak to what is judicial but what judges did

Giving advice is not a judicial function

Standing

Must have adverse parties—with a lack of standing, one of the parties is improper, therefore there aren’t adverse parties

10/10/00

No advisory opinions because:

no adverse parties

No concrete facts

No real question (as opposed to hypothetical)

Decision is not final

What if you have three of the four except adverse parties?—this is the question of standing

Must have injury in fact

Look to history of courts of England

  • English courts used to give advisory opinions
  • Quo warranto didn’t require an injured plaintiff
  • Most of the time though there needed to be injury

The proper functioning of the judiciary as considered by the Framers

  • Judicial economy—avoid a flood of litigation
  • Injury is a proxy for the ability to argue well
  • Judicial review creates tension between the branches so the court ought to limit itself to doing its own work and if judicial review comes with that, then that’s okay—don’t want the court to squander its political capital
  • When another branch acts and nobody is hurt, then there is no judicial review (eg South Indian Ocean Octopus)--US v Richardson held that the fact that nobody is hurt is not a reason to compromise the constitutional requirement of standing

How much injury does the injury in fact requirement require?