CONSTITUTIONAL LAW I—CURRIE
Notes from first Class:
-AOC said that states retained sovereignty and all powers not expressly delegated (see 10th Amend of Con); the Con omits the word "expressly"; thus the Con leaves room for implicit powers
the AOC created a very weak central govt with no executive and few reserved powers
-two principal objections: power of central govt to tax, and state interference with other states' trade
Informal records of Con convention (no formal records exist)
-show that central govt should only get what the states can't effectively do on their own
--this principal was sent to a drafting committee with directions to make it more concrete; the result was Art. I
-2 things were added: power to tax, and power to regulate commerce (in Act. I, Sec. 8)
Issue: was the constitutional convention authorized to throw out the entire AOC? (they were sent only to amend it)
-at the time, the AOC had provisions for their own alteration, which said they could be amended by the state legis
--Validity of the Con was also justified in terms of revolution, which basically threw out the AOC (termed the 2nd American Revolution).
where are the checks on the Ct?
-can't impeach a judge on the basis of his decisions
--appointments; this is why we don't was allow the Ct to appoint its own successors
--amendments to the constitution
---both of these are difficult to freely utilize
--civil disobedience--What if other branches ignore the Ct's decisions?
Constitution can only not be amended so to keep States from their representation
A.JUDICIAL REVIEW
Marbury v Madison (1803) [P. 3]—“[A]n act of the legislature, repugnant to the Constitution, is void.” (Marbury had been named a justice of the peace by outgoing Pres Adams. Incoming Pres Jefferson refused to honor Marbury’s commission. Marbury filed a writ of mandamus directly to the Supreme Court to have Jefferson’s Sec. of State deliver Marbury’s commission. The Judiciary Act of 1789 authorized the Supreme Court to issue such writs.[note: Marbury’s commission had been signed off on by Marshall because he had been Adams’ Sec. of State.])
●Can be argued that in dicta Marshall acknowledged the Political Question Doctrine [p. 6]
--Currie says that Marbury is NOT the fountainhead of the pol question doc
●Constitutional Convention History supports the argument that the Framers intended there to be Judicial Review
Notes from Class:
--the Sct says that the stat purposes to give the Sct jurisdiction to issue mandamus writs, but that such wasn't allowed by the Con.
--does the stat really purport to give orig. jurisdiction?
---stat actually discusses mandamus writs within a sentence that is about appellate jurisdicition.
Marshall also says that the mandamus writ was proper in this case
-was it proper to issue one to a cabinet officer
--if it could, then it would allow the cts judicial review over the exec branch
---this was allowed in the UK
----this is one of the most important things established in the case (and is often overlooked)
-----important to note the limitations that Marshall notes (ie discretion, which was a common law tradition)
court holds it has no jur based on questionable interpretation of Art. III and questionable interpretation on judiciary stat.
--regardless, the ct says that Marbury should have been given his commission
Case does (correctly) establish judicial review of exec (which had precedent in UK)
Case also establishes judicial review of leg. (but it is established differently than its precedent in UK)
-relies upon Art. VI sec. 1 clause 2 (supremecy clause)
"law made pursuant Con"=constitutional laws
Marshall arguments for judicial review of leg. acts:
1) supremacy clause;
Marshall says that laws not pursuant to the con aren't the supreme law of the land
-real issue: who decides if a law conflicts with the Con.
--is Marshall's definition of laws made in pursuance thereof?
--Marshall misconstrues the supemeacy clause
---in pursuance thereof refers laws made under THIS Constitution
---in referring to treatises, the language suggests that prior treatises are still valid and supreme law (see Toth case, US, Black)
2) paramount language;
3) oath;
--Marshall also relies upon the Oath of Office (see Art. VI, Sec. 1, Clause 3.
---problem: oath is taken by all government bodies, so we come back to the question of who decides what is constitutional?
4) judges must decide cases
Marshall says judges must decide as between conflicting laws
-why judges? Marshall says that in deciding cases, judges cannot avoid determining whether the law is constitutional
--problem: if the law was passed by congress, judges could just defer to congress as to questions of constitutionality
5) check/balance arg: without judicial review, there would be no limitations on leg.
-problem: why is this a role for the judiciary?
-what question should we ask: what about other checks?
1) elections
2) presidential veto
- But if the Sct gets their interpretation wrong, there's no check on the Sct's power
In bill of rights, there were two limitation other than judicial review: 1) conscience and 2) constituents
6) Art. III gives jurisdiction to Sct to cases arising under the Con. Doesn't that mean that judicial review is implicit?
-counter: this is the same arg as the Oath arg, so we still could argue that the Sct should defer to the Leg.
-counter: constitutionality of legislation isn't the only issue that comes up in cases, thus this clause is completely irrelevant w/o judicial review
7) all written constitutions imply judicial review (top of page 9)
-counter: at Marshall's time, no other Con had judicial review.
So is Marshall wrong? Not necessarily; we've only shown that his arguments aren't airtight. They could still be correct.
there is a considerable body of evidence that says the founders intended judicial review.
-everything Marshall says is in Hamilton's Federalist Papers
When Madison proposed the Bill of Rights, Madison said that it would be the role of judges to enforce the Bill
In the early debates in congress, judicial review of legislation was assumed
there was precedent in UK; municipalities had corporate charters and cts struck down local laws if they conflicted with the charter
In colonial govt, the colony had a charter from the King, and if a law was contrary to the charter, the cts would strike such law down
thus judicial review was not made up by Marshall
--Ware (1796) : state law was struck down by ct b/c is was contrary to Federal treastise
--Hylton (1796): tax was struck down
--Hayburn (1792): Congressional law said that Sec. of Treasury had authority to strike down ct's decisions on war benefits; this law was struck down by all federal judges
---no one in congress cried fowl but instead amended the law in accordance with the judges' rulings
Real Issue: what are the limits on judicial review
Limitation on Judicial Review
-no advisory ops
-standing
--mootness/ripeness
---mootness, unlike injury, is flexible (see Roe v Wade) when it stands in the way of judicial review
--injury requirement
Marbury establishes judicial review of exec acts (always existed in UK); harder and less established in history was its establishment of judicial review of legislation
-Marshall's args aren't airtight, but history shows that the framers intended to established judicial review
2 basic things Marshall puts forth (apart from Lang) in support of the argument that judicial review is implicit in the Con:
1) checks and balances--ct acts as check and balance on other branches
2) cts have a duty to decide a case, and judges must follow the Con (in this way, judicial review is a mere incidental byproduct of the ct's power to decide cases)
How we answer these questions regarding to what extent other branches of govt are bound by Sct decisions is determined by our reading of Marbury, and Marbury is not clear on this issue.
-what we ID as the real basis of judicial review determines our answer of bounding
The Responsibility of other Branches [p. 21-27]
●Thomas Jefferson—didn’t think that the executive was bound by the constitutional interpretations of the Court
●Andrew Jackson—didn’t think that the executive or the legislature was bound by the constitutional interpretations of the Court
is the Sct's power to strike down unconstitutional laws affected by Jackson?
--could argue no, that it just adds a separate check on the constitutionality on Congress' laws; could argue that the Pres has the same duty to check unconstitutional laws (this point Currie agrees with)
●Abraham Lincoln—argued that judicial opinions were supreme only as to the particular cases from which they were opined
-Lincoln says that he wouldn't set Dred Scott free, so he respects the ct's decision in the case it decided
-Lincoln would argue that by passing a new law saying slaves are free doesn't conflict with the Sct's decree as long as that it doesn't upsets the Sct's prior decision
Does the Sct have the jur to forbid the Congress from passing a law? No, it only have jur over the parties in the case
-Lincoln's distinction is in respecting its res judicata power, but denying its stare decisis power
What about the Sct's role as check/balance?
-could be argued that the ct still has the power to strike down the subsequent laws, so the Sct's power isn't disturbed
--problem: doesn't this require the Sct to strike down each school board's unconstitutional segregated school system? Doesn't this in effect destroy the power of the judicial branch's check against exec and lead to unnecessary transaction costs?
●Franklin D. Roosevelt—suggested open defiance of Court orders
-can the Pres disobey a judicial decision of the Sct?
--inconsistent w/ Marshall's check/balance arg
--also contrary to Ct's power to decide a case
Cooper v Aaron (1958) [p. 25]—“[T]he federal judiciary is supreme in the exposition of the law of the Constitution.” (Arkansas argued that they were not bound by the Supreme Court’s desegregation decision in Brown v Board.)
●Noted in the book that while in the US, only the parties to a case are “officially” bound by its decision, in civil law countries courts exercising judicial review issue rulings of general invalidity binding on all. However, in practice, this is the effect of a Supreme Court decision invalidating a statute.
What about a state ct, which also swears to uphoad the Con? Can it hold a law unconstitutional after the Sct has said that it is constitutional?
-if each state ct can hold differently than the Sct, judiciary would lose uniformity
City of Boerne v Flores (1997) [p. S98]—“Congress’ power under the 14th Amendment extends only to enforcing the amendment. The Court has described this power as ‘remedial.’ Legislation which alters the meaning of the Amendment cannot be said to be enforcing the Amendment.” (Ct invalidated the RFRA, which required a balancing test and gave a defense for any person prosecuted under laws who argued that their actions were part of their religious expression.)
-here congress is arguing that the state law isn't constitutional
--since the congress wouldn't be bound by the Sct's interpretation of a state law, the Sct isn't bound by Congress' view of the OR law
Martin v Hunter’s Lessee (1816) [p. 60]—The Supreme Court has the authority to review, and reverse, state court judgments resting on interpretations of federal law. (Virginia state courts had refused to obey a Supreme Court mandate, arguing that the Constitution did not authorize federal courts to act directly, upon, and reverse, state court rulings.)
●Cohens v Virginia (1821) validated the Supreme Court’s authority to review state laws in criminal proceedings.
--one issue was uniformity of the Con among the states
--another was the need of federal law to protect federal rights
---Counter: what about the federal cts being biased against state rights
--The Con provides that the Sct can hear any case arising under the Con so the above two issues can be protected (this purpose was mentioned in the Con convention notes)
Ex Parte McCardle (1869) [p. 76]—Although the Constitution holds that Congress can make “exceptions” to the Supreme Court’s appellate jurisdiction, it can also add to the Court’s appellate jurisdiction. If Congress grants new appellate jurisdiction, it may repeal such jurisdiction as well. (McCardle brought appealed a habeas corpus decision against him to the Sct under the a congressional Act. Before the decision, the Act was repealed. The Sct held that the Act was no longer valid and thus the Court did not have jurisdiction over the case.)
●Prof. Hart has argued that this “exceptions” power of Congress cannot be exercised in a way that would interfere with the “essential” or “core” functions of the Court.
●The Constitution and recurrent statements in Supreme Court opinions suggest a broad congressional authority over lower federal court jurisdiction.
--Marbury holds that Congress can't add to Sct's original jur (only cases where state or foreign entity is a party)
--McCardle says that Congress can deprive Sct of dif aspects of its appellate jur
If judicial review is an essential check on Congress, then we need to have great doubts regarding Congressional acts that would remove this check, as limiting the Ct's appellate jur could (this is basically Hart's arg on bot of p. 81)
--this power of Congress depends on our interpretation of Marbury
Advisory Opinions [p. 27]—The Supreme Court does not give advisory opinions because its authority is only over “cases or controversies.”
checks and balances aren't the same as separation of powers
-thus the advisory opinion issue isn't a check issue as much as it is a separation of power issue; if they give an opinion, it may be difficult for them to rule on it if a case came up
Reasons Sct gives to not give an advisory opinion
1) checks and balances--but why can't this be another check
2) separation of powers (not in book)--don't want two branches in bed with each other, or they won't be impartial if it comes up in a later case
3) ct of last resort
-what does this mean?
--judgmts are final; why does this limit advisory ops?
--would an advisory opinion bind the Pres? No, thus then an advisory op would not be final since it is by its nature only advice. If the pres chooses not to folow this advice, then the Pres would be negating the Sct's finality
--to answer this question would go beyond the Sct's jur (Marbury)
4) Art. II says Pres should go to heads of exec depts.
-Problem: this would mean that Pres couldn't go to Congress; this clause was meant to say that those under Pres in the Exec MUST answer Pres' questions
5) Extra-judicial--Currie says this is the most important arg
-cts can exercise only judicial power
--Art. III only expressly grants ct judicial power; 10th Amd says anything not listed is reserved to the States
--we read "only" into Sct's orig jur (citing Marbury)
--judicial powers are limited to certain types of cases which have been held exclusive
-we can also look to the structure of the Con which implies that vests different powers with dif branches (weak arg, however)
-Con convention discussed possibility of a Counsel of Review composed of the Justices; one arg made in defeating this was that they didn't want Ct ruling on laws before they come before them in a case
-Haybern's case gave precedent--Ct was asked, in a trial court capacity, to determine rev war vetrens' pensions. Ct said it was unCon to have the Ct do this was subject to review by the Sec of the Tres, and thus their decision would be non-judicial and the decision would not be final
-complication arose: 1 year after Washington's request, the Chief Justice was chosen as a Minister to UK to devise a treaty between dif warring country
--problem: CJ was acting as a non-judicial ambassador
--J. Jackson was chief prosec. at Neumberg
--Warren while on Ct led the investigation of Kennedy's assasignation
--In Mistretta, Sct allowed justices to perform non-judicial roles if not acting as Justices while performing such non-judicial acts
Incompatibility provision says that members of exec branch from serving in Congress; thus, the framers considered this idea and was only worried only about the exec and leg getting mixed up
-giving advice isn't judicial
--How do we know this? How do we know what "judicial" means when used in the Con?
--How was the word used before the Con (tradition)? Was it a technical legal term? If so, we presume the legal term. Why? Cases before Marbury (chis v. GA--could citizen of one state sue another state? Ct said yes, b/c it was expressly stated in the Con; Calder v Bull--what was the meaning of ex post facto laws--could a leg set aside a will provision. Ct said this wasn't an ex post facto case, and it defined EPF; Hylton case--was tax agst carriges a direct tax or not? Since neither text nor tradition answered the question, Ct said we should look to whether reading was logical or not (consequence reasoning)