Constitutional Law I – Fontana – Fall 2009
Table of Contents
SECTION I. THE CONSTITUTION AND THE ROLE OF JUDICIAL REVIEW AND JUDICIAL AUTHORITY 3
THE CREATION OF JUDICIAL REVIEW 3
1. Marbury v. Madison 3
ii. Original Jurisdiction 4
iii. Appellate jurisdiction 4
2. Did Marbury have to be decided? 4
3. Arguments for judicial review 4
4. Arguments against judicial review 4
METHODS OF JUDICIAL INTERPRETATION 4
1. Historical Argument: 5
2. Textual Argument: 5
3. Structural Argument: 5
4. Prudential Argument: 5
5. Doctrinal Argument: 5
JUDICIARY POWER 5
1. Cooper v. Aaron 5
2. Lockyear Case on Gay Marriage 6
3. Alternative proposals for judicial review 6
4. Justiciability and Political Question 6
5. Baker v. Carr 6
6. Baker v. Carr Test: 7
MARTIN V. HUNTER’S LESSEE AND FEDERAL AUTHORITY OVER STATE COURTS 7
Dissent by Judge Parker: 7
DOE V. BUSH 7
4. DELLUMS V. BUSH was another case where a court tried to determine if the war had been declared, and there is dispute if these issues present political questions. 8
EX PARTE MCCARDLE AND CONGRESSIONAL CHECKS ON SCOTUS’ APPELLATE REVIEW 8
SECTION II. FEDERALISM 8
Why do we have federalism: 8
Bush v. Gore: 8
McCulloch v. Maryland: Congressional power over state governments 9
So how is there congressional authority? 9
SECTION 3: THE SOURCES OF CONGRESSIONAL AUTHORITY 10
ARTICLE I SEC 8 THE COMMERCE CLAUSE POWER 10
***Gibbons v. Ogden 10
***Wickard v. Filburne 10
Lopez v. US: 10
US v. Morrison: 10
THE COMMERCE CLAUSE TEST 11
Gonzales v. Raich: test case which is meant to expand the limitations on federal power on the commerce clause, and uses the categories from Lopez 11
Scalia’s argument; 12
O’Connor: 12
SECTION 4: SPENDING CLAUSE AUTHORITY UNDER ARTICLE I SEC 8 CLAUSE 1; THE SECOND SOURCE OF CONGRESSIONAL LEGISLATION 12
US v. Butler 12
South Dakota v. Dole 13
FIVE FACTOR TEST FOR SPENDING CLAUSE 13
NCLB Case: 13
SECTION 5: SECTION 5 OF THE XIV AMENDMENT AS THE THIRD GRANT OF CONGRESSIONAL POWER 14
South Carolina v. Katzenbach: 14
Katzenbach v. Morgan: 14
City of Boerne v. Flores 15
US v. Morrison: 15
Board of Trustees v. Garrett: 16
Tennessee v. Lane 16
Nevada Dept. of HR v. Hibbs 16
SECTION 6: CONSTITUTINOAL LIMITS ON CONGRESSIONAL POWER FROM THE 10TH AMENDMENT ONWARDS 16
Inquiry and line of question for congressional powers: 17
National League of Cities v. Usery 17
Garcia v. San Antonio Metropolitan Transit Authority: 17
NY v. US: State limitation on the ability to usurp state legislatures 17
Printz v. US: Congressional limitation on usurping the power of state executive officials 18
SECTION 7: THE DORMANT COMMERCE CLAUSE AND CONGRESSIONAL PROTECTION FROM STATE DENIAL OF FEDERAL AUTHORITY 19
When analyzing commerce clause and dormant commerce clause: 19
Gibbons v. Ogden Dicta: 19
Philadelphia v. New Jersey (Dormant Commerce Clause and discriminatory policy) 20
Pike v. Bruce Church 20
Three areas of pre-emption: 20
Crosby v. National Foreign trade council: 21
Federalism: 21
SECTION 8: SEPARATION OF POWERS 21
Clinton v. City of New York 21
Prior case Raines v. Byrd: 22
Scalia’s Dissent: 22
Breyer dissenting: 22
Executive appointments 22
Morrison v. Olsen 22
Removal limitation on U.S. attorneys 23
Appointments power problems: 23
Youngstown Sheet and Tube v. Sawyer 23
Jackson’s argument 24
SECTION 10: LIMITATIONS ON EXECUTIVE POWERS 24
Missouri v. Holland: 24
§ Reid v. Covert states that the government is not allowed to violate the constitution because the constitution must be internally sacrosanct. 24
US v. Belmont: 25
Dames & Moore v. Regan: 25
Medellin Discussion: 26
Youngstown Test: 26
SECTION 11: PRISONERS OF WAR 27
Ex parte Milligan is the quintessential case for military powers in times of insurrection: 27
Ex Parte Quirin 28
Hamdi v. Rumsfeld: 28
After Hamdi analysis: 29
Hamdan v. Rumsfeld 29
Plurality: 30
Padilla v. Rumsfeld: 30
SECTION 12: EXECUTIVE PRIVILEGE 31
Facts of El-Masri’s case: 31
9. The Steps to assert states secrets privilege: 32
Clinton v. Jones; 33
Breyer’s concurrence 33
Committee on the Judiciary v. Meiers and Bolton 33
SECTION I. THE CONSTITUTION AND THE ROLE OF JUDICIAL REVIEW AND JUDICIAL AUTHORITY
THE CREATION OF JUDICIAL REVIEW
1. Marbury v. Madison
a. The primary legal and constitutional concerns are if Marbury has suffered a harm, if there is a legal remedy and can mandamus be issued from this court.
b. Justice Marshall argues that there is no political question involved because the doctrine purely falls within the interpretation of the judicial authority to issue a writ of mandamus for Marbury.
i. Marshall argues that powers that are entirely within the realm of the executive branch are not subject to judicial scrutiny.
ii. Here marshall argues that he must fulfill the law as passed by congress, which determines the appointment of an executive officer, therefore the Judiciary is passing on a law
1. However the counter is that this is an issue of executive function which is not subject to review (later determined not quite so true)
c. Remedy available:
i. Marshall argues that where there is a harm there is a remedy available in the courts
ii. This is not so true as we see later on in the hamdi/hamdan line of cases
iii. However, marshall fails to provide Marbury with a remedy. Marshall argues that even though Marbury is able to get a remedy that he is unable to dispense with one as a matter of original vs. appellate jurisdiction.
d. Original v. Appellate jurisdiction
i. Generally: SCOTUS can hear any case that arises in law and equity, laws of the constitution, laws of the US, Treaties
ii. Original Jurisdiction: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction
iii. Appellate jurisdiction: All other cases must appear through appellate jurisdiction
e. Judiciary Act of 1789 Section 13 was unconstitutional because Congressional law allowed Marbury to seek relief for his case based on original review which is NOT in the constitution
f. Supremacy Clause: Article VI of the constitution states that the Constitution and laws emanating from it are superior. Marshall argues that because the Constitution is first. Therefore laws that go against the constitution are null and voice
i. Structurally the constitution must be the cornerstone of the rest of the laws in the United States, otherwise the Constitution would be changeable at will absent the amendment procedures in Article V;
ii. Historically the constitution was created to be the bedrock of law in the US because of the prior experience with the articles of Confederation
g. SCOTUS gets to interpret the Constitution: According to Marshall the judiciary gets to determine the boundaries of law based on the following:
i. Art III Sec. 2 part 1 they aren’t as biased as the political branches
ii. Congress can’t be able to both make law and interpret the constitution beyond its own authority giving large amounts of power to the legislative branch and leaving the judiciary functionless
iii. Judges take an oath to affirm
iv. Counter args: No specific part that expressly gives the judiciary the power to interpret the constitution
h. Ultimately Marbury lost the case and had to file for a writ of mandamus before on of the circuit courts
2. Did Marbury have to be decided?
a. Marshall could have recused himself because of his relationship to the attorney for Marbury and because he was the one who was supposed to deliver Marbury’s commission
b. Limited the opinion of the matter only to Marbury rather than as a broad expression of judicial authority
c. Political question doctrine could have applied (See baker v. Carr)
d. Could have determined a lack of subject matter jurisdiction because the case had to be appealed
e. Or ruled for Marshall
3. Arguments for judicial review
a. Likely to protect rights because of their political independence
b. Serves an efficient check on legislative power
c. Forces the legislature to care about their laws’ constitutional ramifications
d. Effectively preserves the balance of power
e. FORCES the judiciary to be careful about their exertions of political power
i. Through cooperation as opposed through direct mandate. The court MUST get either the executive or the legislature on its side.
f. Maintains the belief that the constitution’s authority reigns supreme
g. Democratically fair in that many citizens can access the court system without a representative
h. Courts authority is limited to the cases that make it to a court, thus they lack initiative
i. Can also have the authority of the Court reduced
4. Arguments against judicial review
a. Likely to hurt rights with complete insulation (dredd scott and Korematsu, as well as plessy v fergusson)
b. Supplants the authority of majority rule and renders congress noneffective, nondemocratic
c. Allows legislative laziness
i. Allows the legislature to not take their constitutional requirements seriously thus the legislature obviates its care for the constitution
ii. Take a meaning of the Court too seriously and thus warps legislation
d. Denies the fact that other constitutional actors also interpret the constitution and their authority under it, like executive cabinet members, the president and the legislature
METHODS OF JUDICIAL INTERPRETATION
1. Historical Argument:
a. You look at what the framers thought and felt when determining the document
b. This goes with original intent (meaning what the founders had intended for the constitution)
c. Original meaning/understanding (what the average person on the street thought the constitution meant)
d. Cons:
i. How do you interpret such a document? By looking at various documents like the Federalist and Anti-Federalist papers?
ii. The record for history can be dickered with in innumerable ways
iii. Words lack static meaning and thus a phrase that has one meaning can have multiple meanings and since a person uses their personal understanding for interpretation it is really no different from prudential argument (Dworkin)
iv. Doesn’t answer much because the argument is very limited
e. Pros:
i. Limits the text and grounds it in a way that sufficiently checks the judicial authority
2. Textual Argument:
a. Simply look at the text (Scalia’s favorite)
b. The plain meaning of the text is enough to tell you what the constitution should mean and be interpreted to say
c. Pros:
i. Again the tex
ii. tual interpretation limits the doctrine of judicial review to simply the text of the constitution
iii. Uses common language to help solve constitutional questions making the constitution much more applicable
d. Cons:
i. The cons don’t answer that much because the text is intentionally vague, and thus hardly illuminating, admittedly so at Madison’s design
3. Structural Argument:
a. Look at the structure and that can tell you what is the proper interpretation
b. These areguments were made when Marshall expounds about the necessity to enforce Ex Post Facto laws
c. Cons
i. This doesn’t answer anything beyond the functions of the government and the three branches
d. Pros:
i. Useful for determining the thresholds of power between the branches
4. Prudential Argument:
a. This is a very amorphous definition meaning that judges should use their personal understandings to help determine what makes the most sense, through practical reasoning
b. Pros:
i. Can lead to really good protections of rights with a broad theory of prudential justice
c. Cons:
i. Can also lead to pretty poor opinions like Dredd Scott,
ii. This is the example of “traditional judicial activism” where a court has nigh unlimited powers to both legislate and create policy around the constitution
5. Doctrinal Argument:
a. The belief that precedential cases are critical to create a line of cases that help justify an opinion
i. Might tap into academic arguments to handle this issue
b. Cons:
i. When no doctrine exists this is useless
ii. Additionally following precedent may not be the best course of policy to uphold
c. Pros:
i. Sufficiently limits the constitutional authority of the Supreme Court to the past cases
ii. Allows for a more stable body of law and more predictable outcomes of law based on precedent
JUDICIARY POWER
1. Cooper v. Aaron
a. This case is about whether government officials have to comply with the rulings of the Supreme Court
b. Because state officials must support the constitution the governor is derelict in its duty based on Article VI Section 2 which makes the constitution the supreme law of the land
i. Then you add in Article III section 2 Where judicial power extends to all cases arising UNDER the constitution
ii. Finally apply VI with the above two, thus if the Constitution is the supreme law of the land, and Article III gives the judiciary the ability to interpret the constitution and them alone, thus the judiciary, if it makes a rule, is binding on the constitution
iii. And thus since Article VI section 3 makes the constitution applicable state governments, and the supreme court determines what the constitution says, then when the supreme court makes a determination, it is binding on all federal and state government actors
iv. THEREFORE the supreme court is the final say on the constitution
c. Another argument is that cases and controversy is critical to determine if the court determines a case and the courts have the final say on that decision.
ARE SUPREME COURT DECISIONS BINDING ON THE EXECUTIVE?
a. Many presidents had multiple ways of trying to get around commands by SCOTUS regarding constititnial authority
b. Jefferson - The Executive is insulated from the Fed Judiciary
i. Executive can interpret the constitution and the SCOTUS can’t limit the authority of the executive thus if the executive thinks a law is unconstititonal he/she can fail to enforce that law
ii. This is co-ordiante review and each branch can check each other in limited ways, thus the branches can interpret their powers for themselves and their spheres of actions but they are to remain separate from each other except that the judiciary maintains that the proper functions occurred (Thus the rules have to be followed and that is SCOTUS check on the other branches)