Constitutional Law I Outline

History
1776—Declare Independence. Send delegates to self-appointed Continental Cong..
1777—Proposed Articles of Confederation
Art 2: States retain their sovereignty and all powers not expressly delegated to US.
10th Am. is successor—providing that all powers not delegated to US or prohibited in the states shall vest in the states.
Imp. difference b/n Art 2 and 10th Amend – Word “expressly” disappears in 10th Am. meaning that there are implied powers under Const. that weren’t present under AofC.
Art 3: Several states shall come together to form a league of sovereign states.
States create leagues.
People create a Const. (Preamble: “We the People of the United States…”) so this is very different
Art 4: Interstate comity –Direct ancestor of Art IV of Const. One state isn’t a foreign country to another state. Include FFCC (respect laws/judgments of another state), P&I (give citizens the same privileges and immunities that you give to your own citizens) and Extradition Clause (send criminals back to the state where they committed the crime).
Art 5: Delegates from the states are selected by the state legislatures. Expressly subject to recall by the state legislatures and not fed’l officials. They are representatives of state govts. Often instructed by states to vote certain ways.
Part of this was preserved in the Sen. b/c Senators originally chosen by state legis. and not the people until the17th Am.
Cong.:
Every state has equal vote. Imp. decisions required 9/13 vote—a supermajority requirement that hobbles Congress
Powers:
Military and foreign affair powers
Federalization of money
Fed’l post office.
Exec.: Didn’t really exist. (Art IX)
Prez was chosen by Cong. and was the presiding officer of Cong. – No separation of exec. from legis. under A of C – it was unitary system.
Some Secretaries existed. Operated expressly under the A of C at Cong.’s direction.
Judiciary: Didn’t really exist. (Art IX)
No Supreme Ct.
Three Types of Fed’l Judges/Three Minor Classes of Cases w/ Minor Jud. Power:
Cong. could choose judges to resolve interstate boundary disputes
Exists today but not subst. part of fed’l jud. powers
Cong. established cts. to deal w/ crimes on the high seas.
Exists today but not subst. part of fed’l jud. powers.
Cong. had power to set up appellate cts. for prize cases (i.e., captures on high seas).
State cts heard the prize cases in the first instance and a fed’l ct. reviewed the judgment of the state ct.
Imp. precedent value b/c even under A of C contemplated that sometimes fed’l ct. would hear appeal from state ct.
Problems under A of C Addressed in Const Convention –Some powers notably missing under A of C:
Marriage of convenience to fight against England.
No fed’l power to tax.
Made requisitions on indiv. states. Rich states paid more b/c not based on population.
Central gov’t dependent on states for support of its operations. Fed’l gov’t always short of funds b/c some of the states didn’t pay their share.
No Bill of Rights
Some limitations on states designed to preclude state interference w/ operation of Cong. States were excluded from international functions b/c needed a unified command in relations w/ foreign powers.
Lack of Fed’l authority to regulate foreign and interstate commerce
No common market and states were erecting tariffs on other states. No effective way of retaliating against restricting foreign taxes and regulations and no way to stop states hurting each other.
Wanted more foreign power vested in fed govt.
Principle of Subsidiarity: If states can’t do it effectively, then power belongs to fed’l gov’t (e.g., foreign affairs, war, currency, post office, regulation of interstate and foreign commerce). Worried that it was too vague so went w/ enumeration that really specified this principle.
Enumeration of Fed’l Powers under Art. 1 § 8—bankruptcies, patents, copyrights, power to tax, regulate commerce w/ foreign nations, indian tribes and among several states and the necessary and proper clause.
Stronger Exec. that isn’t beholden to Cong..
Didn’t want Cong. to choose Prez b/c then there’s no separation of powers. Didn’t want people to choose b/c not smart enough. Created Electoral College. (silly system but have an independent Prez)
Stronger Judiciary not beholden to Cong..
Wanted independent judiciary w/ much expanded powers from A of C.
1781—Last of 13 colonies ratify A of C when VA finally agrees to cede rts. to Western lands to fed’l gov’t leading to the Northwest Ordinance.
1786—Annapolis Convention—Results from lack of fed authority to regulate commerce.
1787—Philadelphia Const. Convention—All states but RI
Controversies at the Const Convention:
Controversy b/n large and small states over representation in Cong.
A of C/Small States: Equal representation for the states.
Large States: Representation based on population
Compromise: Equal representation in the Sen. and Population representation in the House. Each State has two electors (no. of senators) plus the number of people in the House.
Carries over to default provision that if no one gets the majority in a presidential election, have a tie breaker in which House votes but each state has only one vote. – Small states more say that population would dictate.
North/South Division On Slavery
Should slaves be counted under apportionment of representatives in the House?
South: yes b/c they will increase our representation.
North: no b/c treat slaves like property.
Should slaves be counted for taxes?
South: no.
North: if include them in representation, then should include them for taxes.
Compromises:
3/5 Clause: Both taxes and representation based on population. Slaves for both purposes were counted as 3/5 of a person—somewhat advantageous for the North and somewhat advantageous for the South.
Came to head b/c direct taxes rarely done and so South got extra representation w/o paying the money (b/c of indirect taxes)
Fugitive Slave Cl.: if slave escaped from one state to another, slaves like fleeing criminals must be returned. Fugitive Slave Act passed based on this.
clause lifted from northwest ordinance
Cong. can not prohibit the importation of slaves before 1808.
Ban on export taxes from states: Designed to protect states from discr. measure against the exportation of cotton/tobacco (products primarily grown in the South).
Objections to Const. Legitimacy and Legality:
States appointed these delegates for the express purpose of amending the A of C. But never talked about. Instead they wrote a new Const.
Maybe delegates didn’t have the authority but if we wrote it and if you want it then you can ratify it so that it has full force. If you don’t like it, then don’t ratify.
Which portion couldn’t they amend?
A of C said that they would be perpetual unless they were amended by ratification by all 13 states’ legislatures. New Const. took effect in violation of A of C b/c only had to have 9 conventions (not legislatures) ratify it. If going to amend, should go through the A of C process or amend that process.
Counter-Args.:
Policy arguments:
We can’t let RI frustrate this effort for a stronger union—avoid hold-out problem
Cong. pressured NC. RI didn’t ratify until 1790 when Sen. passes bill saying that it prohibited all trade w/ RI until it ratified the Const.
Conventions adds democratic legitimacy and are more likely to ratify than the state legs that are called upon to shed powers
New constitution wouldn’t be a mere compact/league among the states—but rather the founding of a new nation that won’t be subject to dissolution by one state’s breaching the agreement (later became an important argument against secession)
Legal Arg:
Didn’t have to obey A of C’s amendment provisions b/c it was K and once a state broke it by not paying taxed then the whole thing dissolved.
Natural law justification:
Theories about consent of the governed, the ability of a people to decide their own form of gov’t – the right to abolish bad forms of gov’t.
These arguments contain w/in them the seed of arguments in favor of secession.
Randolph: this isn’t legal but we must do something b/c it’s a serious situation
John Locke: rt. of people to abolish bad govt. Have to be careful b/c if too whimsical w/ it than abolish stability of new const.
James Wilson: Revolution so let’s get serious.
1788—Const. Ratified
1789—Const. in Effect
Art. IV: Direct successor of Art 4 of the A of C.
Art. VI: Supremacy Clause
Art. I, §8, cl. 9: Necessary and Proper Clause has no predecessor in A of C.
1791—Bill of Rts. Passed
Two Amendments prior to Civil War. Three Amendments result from Civil War (13, 14, 15).
26 Amendments b/c 27th Am. isn’t really part of the Const. although prez says so.
Arguably, the 27th amendment is not valid, b/c the 3/4ths didn’t ratify the amendment until 200 yrs after it was proposed: constitution imagines a consensus to ratify (thus requiring 3/4ths of the states), so if it takes 200 yrs to cobble together 3/4ths of the states, there’s no consensus.
Judicial Review
Marbury v Madison, 1803. Midnight judges, Marbury sues for writ of mandamus under Judiciary Act of 1801 in USSC. Held: Congress’s grant of original jurisdiction over actions for mandamus violates Art III § 2; USSC lacks subject matter jurisdiction.
Establishes judicial review of actions of Congress
Judiciary Act of 1801 confers original jurisdiction over mandamus actions in USSC
Dicey reasoning: structurally bizarre reading (writs of mandamus appears w/in and applies to sentence spelling out USSC’s appellate jurisdiction), and confuses the grant of a power to grant relief w/ the grant of jurisdiction.
Why go out of way to construe statute to create constitutional question?
Usual practice is to construe statute to avoid constitutional question (see, e.g., Mossman v Higginson, an 1800 case that turned on a different provision of the judiciary act of 1789. Two citizens of different foreign countries sued each other. The judiciary act of 1789 gave alienage jurisdiction to cases in which an alien is party. We wouldn’t expect the court to uphold jurisdiction, b/c art III § 2 only gives jurisdiction to cases between the citizen of a state and an alien. Assuming the court follows the approach of Marshall in Marbury, we’d declare the statute unconstitutional. But what actually happened is that the USSC interpreted the statute narrowly to avoid the constitutional question)
Why would the court adopt a narrowing construction rather than declare the statute unconstitutional?
b/c you assume other branches wouldn’t consciously enact a statute that’s unconstitutional (look to the oath the other branches swear); hence, they meant to adopt the narrower version of the statute. This is a courtesy to other branches (it effectively declares a statute unconstitutional w/out saying that it’s unconstitutional).
Difference between adopting a narrowing construction to avoid unconstitutionality and canon of statutory construction to avoid constitutional questions:
In Mossman, the ct effectively decided the constitutional question; the canon of statutory construction is to even avoid having to decide the constitutional question. The effect is to tell Congress, “well, if you want to go up to the line of the constitution, you’ll have to say it very explicitly.” (a clear statement rule)
In Mossman, they at least interpreted the statute honestly, and then narrowed it after deciding the constitutional question. The canon of statutory question just tries to avoid deciding constitutional questions and so avoids interpreting congressional statutes honestly.
That grant of jurisdiction is unconstitutional b/c Congress can’t enlarge jurisdiction of USSC beyond that in art III—can’t make appellate where original and vice versa
Dicey reasoning: what about the exceptions clause? Why are not the two cases mentioned in art III § 2 ([1] cases affecting ambassadors and [2] cases where a state is a party) as being original jurisdiction a constitutional minimum (given their importance) rather than a maximum to USSC’s jurisdiction.
b/c the beginning of the sentence says that the exceptions clause applies only to “all the other cases” (and hence not to original jurisdiction cases)—and b/c it’s in the 2nd sentence and only applies to that sentence.
He has to take this back in Cohens v VA, where USSC took appellate jurisdiction over a case where a state was a party—this has to be so, b/c otherwise you couldn’t step in to correct lower courts that usurp USSC’s original jurisdiction.
In light of Cohens, the holding of Marbury is that Congress cannot add to original jurisdiction
Arguments for judicial review:
Structural and policy and framers’ intent arguments:
Supremacy of constitution
Who decides? But by passing the statute, Congress has decided that the statute is constitutional; why should courts second-guess the legislature’s judgment?
Notion of limited gov’t requires checks and balances
This is the rebuttal to objection to supremacy clause argument. you need someone to check the congress’s judgment; besides, they’re biased in the process b/c questions of constitutionality have to do w/ congress’s power—it’s the rabbit guarding the cabbage. Founders wouldn’t have created prohibitions on congress w/out any body to enforce those limitations
But why can’t this be a role fulfilled by federalism? That is, the states could do this—nullification. Or the prez—refuse to execute unconstitutional laws (the “Take Care” clause). Or public choice theory (electoral check).
Judicial review has several advantages, though: much more likely to be effective, can be retroactive, less lag time than to election date
And if we go w/ judicial review, what’s the check on the court to make sure it doesn’t eat up the powers of Congress? Impeachment? Amending the constitution (11th am [Chisholm], 14th am [Dred Scott], 16th am [Pollock])? Abolishing the court (conflict between Art III congress makes inferior cts and Art III judges have life tenure)? Appointment? That’s so nebulous—it’s the fox guarding the rabbit. And to the extent that we find these checks, then the court is so feeble, so much a paper tiger, that it can’t perform the function of judicial review.
Or are we to find that these checks are “just right”: the little bear’s bowl of porridge…
Judicial power is to decide controversies; duty of the court to say what the law is (Deciding cases means having to choose what of many conflicting rules applies to particular case)
Question begging: But what if the law is that there is no judicial review? Then the judge must apply that rule and refuse to look at constitution; hence, we can see that this argument of Marshall assumes the existence of judicial review
Notion of a written constitution
And can’t there be written constitutions w/out judicial review (e.g., France)?
Also, who decides?
Textual arguments
Judicial oath (art VI)—judges have to swear to uphold the constitution
But Congress had to take the same oath, so why not defer to their judgment? Why is it the court then instead of the congress that interprets the constitution? But that’s not what Marshall is saying—Congress is free to decide about what is and what isn’t constitutional, but the courts have an equal responsibility to do the same
What is your duty to do your duty? Circular reasoning….
Article III—arising under the constitution jurisdiction. Cts decide cases or controversies, and part of that deciding involves choosing the law that governs a case. And if it decides cases arising under the constitution, then they get to decide what it means.
This suffers from same defect as the judicial power argument above: it’s circular
Supremacy clause: in the supremacy clause, the constitution itself is first mentioned, and not the “laws of the united states generally.” Hence, not all those laws that Congress passes are Supreme; only those made in pursuance of the constitution
The Supremacy clause refers to “This Constitution,” not “the Constitution”; the Clause is merely a repeal of the statutes made under the articles of confederations, but treaties made under the articles of confederation are not repealed. The purpose of the clause (looking at it in contrast w/ the treaties provision) is chronological, not hierarchical—it distinguishes old laws from new laws, not supreme laws from bad laws.
Justice Black fixes Marshall’s error in Reid v Covent
Tradition—not used by Marshall in Marbury
There’s lots of precedents for it: from Britain, in the colonies, earlier state courts, etc. A federal court struck down a federal statute in 1792, even. Tradition supports judicial review. Despite any theoretical weaknesses in the doctrine, it is solidly accepted and so on and so forth.
Legislative history often looked to for intended effect of words—Framers intended judicial review. Ratification conventions/Federalist Papers/Convention docs indicates that framers intended judicial review so don’t have to speculate on what they might have meant.
Precedent: USSC itself exercised judicial review:
Ware v Hylton: USSC struck down state statute (confiscating debts owed British subjects) in violation of fed’l treaty
Hylton v U.S.: USSC upheld carriage tax; no challenge to their power to have struck the tax down if unconstitutional
Hayburn’s Case: Advisory opinions by USSC justices riding circuit challenged constitutionality of law requiring judges to hear pension benefits claims (subject to veto by Sec’y of Treasury). Cong. amended the law to make it consistent w/ USSC’s interpretation and didn’t try to challenge the power of judicial review. Country accepted that Const intended to provide for judicial review.
Establishes judicial review of executive/administrative actions (dicta)
Marbury has right to commission—right is vested b/c “all that had to be done was done.”
But what about delivery; e.g., for a deed to be effective, it has to be signed, sealed, and delivered?
Sec’y of State can be directed by mandamus in an area that is not depending on executive discretion, but rather on particular acts of congress and the general principles of law. The idea is that if act is in executive discretion, then there’s no right that could be infringed.
Takes source from Blackstone; the c/l standard had been codified in the judiciary act.
Origin of Political Question doctrine—If Sec’y had discretion, this would have been “Questions in their nature political,” and USSC wouldn’t have interfered. If exec. or leg. acting w/in their political discretion can’t be violation of law or Const.
Two views of Marbury:
Strong Marbury—Judicial Guardian Idea: Strong view of judicial review as crucial in checks and balances.