Con Law I Outline
I. Judicial Review
A. Marbury v. Madison (1803) – Jud. Rev. of Acts by Cong. & Exec.
1.) Facts: new pres. Jefferson said to Sec. State Madison don’t deliver the justice of the peace commissions sitting on his desk à Marbury out of luck, brings suit
2.) Issue: to what extent executive is subject to jud. process?
a.) Sub-Issues: 1. does Marbury have rt. to commission? 2. if he has rt. has that rt. been violated and do laws afford remedy? 3. if they do afford him remedy is it a mandamus from this court?
b.) ct. answers 1st two qs. yes, but in end rules agst. Marbury
-Marshall, laws afford rt. to commission, Cong. appvd it & pres. signed it
-rt. of every citizen to claim the protection of the laws when injured
- Marbury has every rt. to this commission but still has to dismiss
3.) Creation of Jud. Rev.: Marshall declares § 13 of Jud. Act of 1789 unconst
-Marshall likely feared his order would be ignored by pres.
-S. Ct. doesn’t have power of purse/military, only has moral force of people willing to comply w/ decisions
à jud. rev. - S. Ct./Fed. Cts. set aside govt. actions that don’t conform to Const.
4.) Executive Actions & Jud. Rev. – Discretionary v. Legal
-Marshall says discretionary exec. actions aren’t subj. to jud. review
-but when Cong. imposes spec duties by statutes on officer à approp. for ct. to rev. whether officer has lived up to duty
5.) Art. III – Original v. Appellate Jurisdiction
a.) orig. jurisd. – granted to S. Ct. over cases ab/t ambassadors, other pub. ministers/consuls, and those in which a state shall be a party
b.) app. jurisd. - all other cases, “arising under” jurisd.
c.) § 13 & Const. - Marbury says § 13 giving mandamus to S. Ct. by orig. jurisd. unconst. b/c such mandamus not provided in Const.
-Expressio Unius, Exclusio Alterius (by listing some all others are excluded)
6.) Alternative Reading of § 13 -Marshall adds to orig. jurisd. of S. Ct. which Cong. can’t do b/c pt. of a written Const. is Cong. can’t just amend/repeal w/ ord. law
-could have same result w/o declaring statute unconst., could argue construction that writs of mandamus only applies to app. jurisd.
-mandamus § after statement of app. jursid., but Marshall reads it as orig. jurisd.
-historians believe Marshall read it so to avoid snub by Jefferson if ct. accepted jurisd. and to create power of judicial review
7.) Constitutionality of Judicial Review.
a.) No Direct Textual Support - power to interp conflicting acts and to declare them unconst. not in the Const.
b.) Jefferson’s View: opposed jud. rev., too much power unelected, lifelong jud.
-responsibility of each branch of govt. to interpret Const. itself b/4 acting
c.) Marshall’s Interp.: US law is hierarchical and Const. law superior to statutory, ba
-Marshall’s 3 textual supports for jud. rev.:
1. Sup. Clause, 2. Art. III S. Ct. shall have power over cases arising under Const., 3. Oath in Art. VI 3 to support Const.
-Marshall says judges are experts in law à jud not other branches should interp.
d.) Challenges to Legit. of Jud. Rev.: challenged by many as undem., no textual support
-jud. rev. not used again until Dred Scott in 1857 declared MO Compromise unconst, demonstrates Ct.’s sensitivity to crit. that vast power of jud. rev. undem.
e.) Hamilton Fed. 78 - counters jud. rev. nec. to ensure limits on Cong.
-Const. is product of the people as stated in Preamble
-in conflict b/t leg. & Const. Const. is always preferred b/c it is more democratic and direct product of people
B. Martin v. Hunter’s Lessee (1816) – Jud. Rev. of Decisions by State Cts.
1. Facts: US S. Ct. rev’d. decision by VA Ct. App. à VA Ct. App. declared § 25 of jud. act of
1789 unconst., which said S. Ct. should have app. jurisd. over decisions by highest state cts.,
2. Compact Theory of Const.: states convened & created Const. à states are superior, Const. is a compact of states and they aren’t bound by it
-VA ct. said Const. sets state and fed. govts. as independent and equal
-VA arg. state officers take an oath to defend the US Const and that they therefore can be depended on to interp. and follow Const. w/o oversight of S. Ct.
3. Story’s Justification of App. Jurisd. over Decisions by State High Cts:
a.) Art. III § 2 - jud. power shall extend to all cases arising under law of US
b.) Art. III commands Cong. to create S. Ct. in which jud. power shall be vested
-text of Const. seems to say Cong. doesn’t have to create lower fed. cts.
-b/41875 no fed. q. jurisd. à most fed. qs. litigated in state cts.
-if those state decisions couldn’t be reviewed by S. Ct. they would be outside jurisd. granted to S. Ct. over cases arising under Const.
-it is the case and not the ct. that determines jurisd.
-if VA Ct.’s position correct à Ct. would have NOTHING TO HEAR, no jurisd.
4. Story’s Rejection of Compact Theory: mistake to think Const. doesn’t bind states when interp. of Const. in conflict w/ state statutes
a.) Plain Lang. of Const. - states in ratifying Const. implicitly said Compact Theory wrong
-points to list in Art. I § 10 which enumerates limitations to state sovereignty
b.) Uniformity - if each state could decide Const. for itself à no uniform fed. law
c.) Jud. Act of 1789 granting S. Ct. app. jurisd. over states constitutional.
5. Avoiding Continued Defiance by VA Ct. App:
-instead of sending case back to VA Ct. App. Story just enforces decision of tr. ct.
-Johnson concurring, ct. disavowed intention to decide on rt. by S. Ct. to issue compulsory process to state cts.
C. Cohens v. VA (1821) – S. Ct’s App. Jurisd. over Crim. Apps. from States
a.) Facts: - 2 indivs. arrested and convicted in VA for selling DC lottery tickets there
1. VA’s Challenge to S. Ct’s App. Jurisd. over State Crim. Cases:
a.) Art. III § 2 Cl. 2 - in all cases IN WHICH A STATE SHALL BE A PARTY S. Ct. shall have orig. jurisd. not app. jurisd.
-VA uses same reasoning as Marshall in Marbury, can’t add powers to orig. jurisd. not granted by Const, VA says since cases in which state is party e.g. crim. cases are not mentioned then they must be excluded
2. Marshall’s More Expansive View: responds must look at 1. structure of govt., 2. nature of Const., and 3. subordination of state govts. to Const
-for Const. to effect its goals must have power to hear crim. apps.
-Marshall again outfoxes VA, finds S. Ct. does have power to hear crim. apps. from state cts. but Ds still lose à nothing to send back to VA to consider
D. Further Scope of Fed. Jud. Power
1. Nixon v. Sirica (1973) – Pres. Ministerial Duties
- Nixon arg Marbury exempted Pres. from jud. power in his ministerial duties
-ct. of app. said that Pres. is still under power of fed. judiciary like anyone else
2. Cooper v. Aaron (1958) – State Sov. v. Fed. Ct. Order
a.) Facts: govern of AK refused to integrate Central High School, governor showed up w/ national guard and refused to allow black students to enter, Pres. Eisenhower called out fed. troops to enforce fed. ct. order
b.) Governor’s Compact Theory Arg. - states could nullify fed. ct. orders if impeded state sov. too much, S. Ct. unanimously rejected arg
-neither state leg. nor governor may nullify fed. ct. order
-S. Ct. says every state leg. and officer bound by oath to support Const. and S. Ct.’s interp. of Const.
-said Fed. Judiciary is supreme in exposition of law of Const.
E. Theories of Const. Interpretation
1. Originalism (Intentionalism) – Bork says it’s obvious framers couldn’t have known facts of world today, but some inquiry must be made into intent of Const. not to provide answers but to arrive at a guiding principle
-Perry says there is some comm. core at heart of Const.
-originalism takes intent and text into account
2. Textualism – certain tension b/t orig. & text., people may differ on intent of framers so it’s imp. to look at the text for guidelines, separate text from intent
3. Interpretivism – Const. interp. approp. where it can be derived from text of Const. or can be implied there from, Ely
4. Non-Interp. – in interp. big concepts S. Ct. must look outside Const. should concede that
5. Neutral Principles – cts. should interpret Const. in comp. detachment to find most neutral principles free from any result oriented jurisprudence
6. Passive Virtues – in some matter cts. out of need to appear above the fray should pass on deciding some issues even if they have jurisd.
7. Participatory Values - ?
F. Utah v. Evans (2002) – Originalism in Application
1. Facts: 2000 Census used “hot deck imputation” à loss of seat by Utah and gain by, not really stat. sampling, inferring # of people from house where they get no response based on #’s in nearest building, Utah sued
2. Lang. of Text: “actual Enumeration . . . in such a manner as Cong. shall direct”
-Utah: method Census Bureau used unconst., census taker must phys. count every inhabitant
-Breyer decides in favor of NC, says this method of imputation is consistent w/ command of census clause, thinks it’s const.
3. Breyer’s Interp. of “Actual”: contrast to 1st & 2nd Cong. where by conjecture
-looks to 18th C. dictionaries for meaning of “enumeration” just says act of counting but not how to count
-using originalism/interpretivism, focuses not just in text but in hist. of time and meaning of wds. in that time
4. Thomas’ Interp of “Actual”: actually physically counting each person
-finds dictionaries from the time which he claims say “enumeration” means actual counting and not estimation or conjecture
-uses orig. as well, but Thomas gen. more textually oriented but here ignores the final part of text “in manner which Cong. shall direct” which Breyer emphasizes
G. Judicially Imposed Limits on Jud. Rev.: Non-Justiciable Political Questions
1. Historical Background
a.) Luther v. Borden (1849) – Guaranty Clause Cases
i.) Facts: -1841 Dorr Rebellion in RI, issue whether the charter govt. satisfied Guaranty Clause, Pres. recognized the supporters of charter govt. and their own newly drafted const. which ended rebellion
ii.) Holding: Tawny says it’s not for cts. to decide b/c could lead to disagreement w/ Cong. à less order, det. belongs to democratically elected branch of govt.
-rule from Luther Republican Guaranty Cl. cases not approp for jud. rev.
b.) Colegrove v. Greene (1946) – Apportionment Thicket
i.) Facts: IL leg. dominated by rural reps., after 1901 leg. refused to redistrict to prevent seats going to Chicago area à eq. protection challenge
ii.) Frankfurter’s Pluarility: cts. shouldn’t enter “political thicket” of mal-apportionment, no std. by which to judge validity of scheme
-political q. & thus non-justiciable, ct. shouldn’t appear to be aiding one party
iii.) Rutledge: there was jurisd., not a non-justiciable issue but rather just non-justiciable case
c.) Gomillion v. Lightfoot (1960) – Legislative Action
-town of Tuskegee gerry mandered as to exclude black voters,
- diff. b/c here no failure to act by leg. but actions by town to purp. discriminate
2. Baker v. Carr (1962)
a.) Facts: - Tenn. refused to reapportion despite pop. shifts to urban areas
à q. whether non-action for 60 yrs was consistent w/ Tenn. const., which reqd apportionment be equal & taken every 10 yrs. à challenges under civ. rts. statute and eq. protection clause
b.) Jurisd. & Justiciability: Brennan says “arising under” jurisd.& a just. claim
-jursid. claim based on eq. protection claim and civ. rts. statutes fits 1331
-dist. ct. misread Colegrove, Frankfurter said there was jurisd. but not just.
c.) Brennan’s Interp. as Justiciable Non-Political Q.:
-not a Guarantee Cl. q., those cases deal w/ issues b/t branches of fed. govt. like in Luther where ct. didn’t want to get involved b/t pres. & Cong.
-here not coordinate branches of fed. govt. but issues b/t state & fed. govt
d.) Distinguishing Coleman v. Miller: proposed child labor amendment, Kans. votes no 1st then 18 yrs later decided to ratify it, text of amendment had no expiration date à can state pass & ratify later, when does am. expire?
-S. Ct. said not for us to decide, for Cong. b/c a pol. qs. w/o stds. for jud. decision
-Tenn. arg. relies on Coleman à apportionment non-justiciable pol. q.
-Brennan dists. Coleman as sep.of power prob. and pol. q. w/ no manageable jud. stds. to follow for resolving q.
-here no sep. of powers prob. b/c b/t fed. and state govt. instead of b/t coordinate branches of fed. govt.
-manageable jud. stds for this prob. found in the lg. vol. of eq. protection cases
e.) Brennan’s 6 Criteria for Non-Just. Pol. Qs. (Only Need 1 to find Pol. Q.)
1. textually demonstrable const. commitment of issue to coord. pol. dept.
-seems to apply to Coleman where Art. V seems to leave procedure for Const. Am. to Cong.; not relevant here though b/c talking abt. state leg.
2. OR lack of jud. discoverable & manageable stds. for resolving it
3. OR impossibility of deciding w/o an initial policy det. of a kind clearly for nonjud. discretion
4. OR impossibility of a ct.’s undertaking indep. resolution w/o expressing lack of respect due coordinate branches of govt.