CONSTITUTIONAL LAW I OUTLINE

JUDICIAL REVIEW

I. Marbury v. Madison

A. Marbury v. Madision

1.  Facts: Marbury sued in the Supreme Court for a mandamus ordering Jefferson’s Secretary of State, Madison, to deliver his commission to be justice of the peace.

2.  Holding: The Supreme Court does not have original jurisdiction to issue a writ of mandamus ordering an executive officer to deliver a commission.

3.  Discussion: Marshall

  1. Every violation of a legally vested right needs a remedy in the U.S. Cite Blackstone, brooding omnipresence of CL.
  2. But Marshall doesn’t provide that remedy. No other ct open to somebody like M until 1848; Holding means there isn’t remedy.
  3. Executive Discretion: The president (P) can commit acts for which an injured party has no remedy. These acts include those of P’s officers who execute his will rather than congressionally imposed duties that make them officers of the law, and are acts
  4. left to exclusive executive discretion by the constitution (Č) or laws, (Abuse of discretion is violation of law, so can be reviewed.) “or”?
  5. in their nature political;
  6. they effect the nation, not individual rights;
  7. P answers only to his conscience and country in political character.

Discretion lies in act (function), not exalted station of officer.

  1. Withholding the commission violates a legal right, and a legal duty.
  2. When P violates a legal right with no discretion, the courts have jurisdiction over him.
  3. Jurisdiction:
  4. Needed to be granted by statute. Judiciary Act of 1789: gives S.Ct. authority over “any courts appointed, or persons holding office, under the authority of the U.S.”
  5. Real text indicates it might only have been giving appellate power. Could have avoided Čal question.

When Marshall paraphrases, go to the source.

  1. Hodgson v. Bowerbank, 1799: Act seemed to give circuit cts juris. over cases with aliens; unČal on face. Ct: assume Ł didn’t mean to exceed its powers. When a reading allows you to avoid holding a stat. unČal, take it.
  2. Constitution: Interpret it by looking to 1) text (what the language says, doesn’t say, implies) and 2) intent (they couldn’t have meant that).
  3. Arising under juris: applies here.
  4. This cause doesn’t fall into the Č’s list for original jurisdiction in Ct.
  5. But Č also says “with such exceptions as Congress shall make.” Exceptions clause has been understood to relate only to appellate jurisdiction (i.e. you can’t go to S.Ct at all in certain categories of cases).
  6. The Legislature (Ł) doesn’t have the power to define the Ct.’s appellate power; that would make the Č’s delineation moot.
  7. The Act gives original jurisdiction where the Č doesn’t; thus, it’s unČal.
  8. Constitutionality and the Court:
  9. Separation of Powers: the branches have limits that shouldn’t be transcended.
  10. The Č is paramount, unalterable by Ł Act and controls any Act repugnant to it. Ł Acts that contradict the Č are void, not law.
  11. But even if the constitution is supreme, who decides which interpretation is correct?
  12. The Ct. decides whether a Ł act is unČal.
  13. Ct’s job to say what the law is, to decide the preemption of conflicting rules.
  14. But if the job is to decide what the law is, the law may be that you have no power of judicial review.
  15. Inherent in the idea of a written constitution that framers contemplate judicial review.
  16. But nothing about written constitution necessarily makes it paramount. French constitution used to prohibit judicial review (meddling).
  17. Check on Ł: If the Ct. couldn’t stop the Ł from ignoring the Č, the Č would be powerless and meaningless and the Ł would be omnipotent.
  18. Currie: Like saying this isn’t in constitution, but I wish it were. Independent centers of power could mean that they shouldn’t meddle with each other.
  19. Could say judicial review is implicit in limitations themselves, because rabbits can’t guard cabbages; Nobody in their right mind would make unenforceable limitations.
  20. Maybe it’s more absurd to think that an all-powerful un-elected court would determine the constitution, rather than elected Congress. If a bulldog guards the rabbits, who guards the bulldog?
  21. It’s all balancing; when you strengthen one branch, you weaken the other.
  22. The Ct has jurisdiction over cases arising under the Č; it has to say what the Č is to decide them.
  23. The Framers intended the Č to direct the cts too. They take oath to support it.
  24. But does that mean that they have the responsibility to determine the conflict? The oath requires them to do what the constitution requires them to do, and the very question here is what the constitution requires.
  25. The Č says that 1st, the Č shall be the supreme law of the land, and then, Ł laws made in pursuance of the Č.
  26. Read dormant negativity into affirmative words when necessary to give them operation. No clause in the Č was intended to be ineffectual.

4.  Early (pre-Marbury) cases with constitutional interpretations:

  1. Chisolm v. Georgia: Language of Text: Chisolm, citizen of SC, sues GA: original jurisdiction. Article III extends judicial power to cases between state and citizen of another. Language fits like a glove; don’t have to look any further.
  2. Calder v. Bull: Tradition: Chase: unwritten limitations to legislative power; one might apply here. Case invoked ex post facto clause. Ct rejected argument that this was ex post facto law; looked to tradition (Blackstone, etc.); ex post facto has traditional meaning; we assume Framers used it that way (ex post facto applies to criminal cases— can’t make something a crime after it’s done—not civil cases.)
  3. Hylton v. U.S.: Consequence:
  4. framers weren’t fools, and couldn’t have intended unreasonable consequences.
  5. Ct. assumes what “works” is ok. But approaches can cut in different directions. If they had done in Chisolm what they did in Calder, they would have found that no such practice existed in England—that’s what country was saying to court with 11th Amendment.

II. The Branches’ Power to interpret the Č:

A.  Hamilton, Federalist #78: The judiciary has control over neither “the sword [nor] the purse,” but merely judges. Legislative acts contrary to the constitution are void; the people are superior to their representatives. We can’t let the legislature judge itself. The courts are intermediaries between the people and the legislature, and one of their jobs is to preserve fundamental law.

B.  Hand-Wechsler debate: Hand: Nothing in the Constitution authorizes judicial review of legislative acts, which is inconsistent with separation of powers; it should only be allowed to preserve the government. Courts are not “Platonic Guardians.” W: it’s in the Constitution.

C.  Ł implicitly interprets the Č every time it passes a bill, because members swear to uphold it.

D.  Thomas Jefferson: Court can say what it thinks is unconstitutional, but so should the other branches; P shouldn’t execute a law he thinks is unČal. Consistent with Marbury.

E.  Andrew Jackson: Consistent with Marbury: vetoes bank as unconstitutional, though court had held that very bank constitutional in McCulloch. Miles removed from decision of McCulloch, which freed Mr. McCulloch from the clutches of Maryland. No undermining of judicial check. Creates another external check on power of Congress to create unconstitutional legislation. Thus, Congress can’t exceed its power unless:

  1. Executive is willing to sign bill, or 2/3 majority, and
  2. Court finds it ok.

F.  Abraham Lincoln:

1.  Wouldn’t honor court’s determination that Congress couldn’t abolish slavery in territories.

2.  Would respect court’s decision in Dred Scott. Lincoln would pass statute again, and Court would still resolve cases. Other branches shouldn’t frustrate decision of case, but they don’t have to obey court’s rules about how to interpret the Constitution.

3.  Would court still be ultimate constitutional check/ arbiter? It will go back up to Court; Court will redecide; but it forces ct to adjudicate each and every circumstance where it wants its law enforced—wildly inefficient.

4.  Wechsler: There comes a time when it’s no longer practical to try to get the Court to change it’s mind, because it obviously won’t, and all you’re doing is crippling it.

5.  Thus, Lincoln turns focus to justification of Marbury: he’s right if the court’s right is to decide cases, but wrong if it’s to be the final check? FDR is wrong either way.

G.  F.D. Roosevelt: Gold clause proposal, undelivered:

  1. Wouldn’t obey court mandate—outright defiance.
  2. Would deny Ct power to decide; deny juris., disturbs power to check.

H.  Consequences: Judicial review has proven to be effective but not overpowering check. It works well, so maybe it’s what they intended.

I.  Early Congressional debates: once in a while, somebody would say on floor: we don’t have the power to decide whether something is in the constitution; that’s the courts’ job. Nobody ever said, no they don’t, only: we have the power to check ourselves too (sworn to uphold constitution).

J.  Madison: Bill of Rights provisions will appeal to consciences of Congress, to constituents, and: Courts will consider themselves guardians to ensure that Bill f Rights are enforced.

K.  Court Power to Hear:

1.  Hylton v. U.S.: Court entertained constitutional challenge to federal statute. Nobody questioned judicial review; all justices discuss Constitutionality. Court says it would never strike unless a clear case of unconstitutionality. (Frankfurter/ Thayer view.) Didn’t actually strike statute.

2.  Ware v. Hylton; Hayburn’s Case; Ct’s power to hold case unČal unquestioned.

L.  City of Boerne v. Flores, 1997:

1.  Facts: Π was denied a zoning permit to enlarge his church; he charged that the regulation burdened his religious freedom. Tests:

  1. Pre-1990: ask whether it

1.  substantially burdens religious practice and

2.  if so, was justified by a compelling gov. interest.

3.  Employment Div. v. Smith, 1990: neutral laws of general applicability could apply to religious practice even when not supported by compelling gov’t interest.

4.  Religious Freedom Restoration Act: explicitly purported to overturn Smith and restore the compelling governmental interest test. Would retroactively change case result.

2.  Holding: The Religious Freedom Restoration Act contradicts Court interpretation of the Č as it applies to cases and controversies, and effectively defines life and liberty, rather than remedying or proportionately preventing violation of such rights; as such, it is beyond Congress’ §5 14th Am. power.

3.  Discussion: Kennedy:

  1. Ł has the right to enforce 14th Amendment protections, but not to decide the substance of their restrictions on the states. Ł has no power to decide when a Čal right has been violated.
  2. Legislative history shows that the Amendment’s Framers purposely gave Ł the power to enforce it, not to prescribe uniform nat’l laws protecting life, liberty and property.
  3. Separation of Powers: the Court has primary authority to interpret the Č and the restrictions it creates on the states. Congress has the power to pass corrective legislation that prevents or stops the states from violating protected rights.
  4. Violation: The Ct decides cases and controversies, and its decisions are final until it changes them. RFRA tried to control cases and controversies, but the Ct’s precedent, not RFRA, control.
  5. Marbury: If Congress had the power to change the interpretation of the Č, the Č wouldn’t be immutable and superior, but law like any other.
  6. There are circumstances in which new limit is means of enforcement (e.g. banning literacy test for voters). Proportionality Test: RFRA is out of proportion with the likelihood that the laws it will affect are unČally discriminatory. It reaches every situation, when discrimination isn’t really a problem.

M.  Notes on Flores:

1.  Ct. makes additional check, like Jackson: Court doesn’t think it’s unconstitutional, but Congress does. If we agree with Jefferson/ Jackson that there should be other checks, Congress is right here.

2.  If Congress isn’t bound by the Court’s interpretation, is the Court bound by Congress’? No—Jefferson/ Jackson don’t-tell-us-what-to-do philosophy. Works both ways—nobody can tell the Court what to do.

  1. Should the Court have reinterpreted the 1st amendment in light of Congress’ reading? Persuasive authority, perhaps.
  2. Frankfurter adopted deferential attitude toward constitutionality of state and federal legislation.

4.  Currie, “Reflection on City of Boerne:”

  1. Holding is plain text of Am 14, §5.
  2. Marbury, Lopez: The Proportionality Test supports them by saying that the ct. won’t blindly accept Congress’ power grabs under “appropriateness” and “n&p.”
  3. Holding says that Congress can interpret Č for itself, but court isn’t bound by its interpretation.
  4. Not always obvious whether Congress is challenging the Ct. to rethink its Čality tests (Lincoln), or trying to change the Č without amendment. Examples:
  5. Line Item Veto
  6. Defense of Marriage Act
  7. Act challenging Ct’s holding Art III power doesn’t extend to suits against states by their citizens, invalidated in Seminole Tribe v. FL.

III. Court’s Authority to Review State court Judgments

1.  Holmes: I do not think the U.S. would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several states.

2.  Martin v. Hunter’s Lessee, 1816:

  1. Facts: §25 of the Judiciary Act gave the Ct. power to review state ct. judgments on the Čality of state law. Π claimed land under federal treaty; Δ claimed it under state grant. The VA ct. called §25 unČal because it wasn’t under the appellate power of the Ct. Said:
  2. State courts are final word in state system.
  3. Č provides no umpire for conflicts between state and federal decisions. Since the framers must have foreseen such controversy, the omission probably occurred because such a tribunal would produce worse conflict.
  4. If the feds don’t want state cts to decide, they should route federal issues into lower federal courts at an earlier point.
  5. Holding: §25 is constitutional.
  6. Discussion: Story:
  7. Dictum: Č was indeed intended to act upon the states.
  8. Cause gives jurisdiction, not Ct—doesn’t matter where it started—if it’s about the constitution, Ct can review it. Goes too far—what if the case started in Mexico? Is state court like Mexico?
  9. You can’t say that review would impair the independence of state judges when the question is whether they have such independence.
  10. Text: Art VI dictates that they’re not independent of, but bound to obedience to, the constitution.
  11. Unsatisfactory to say power doesn’t exist because it might be abused; power’s going to reside somewhere, and there will lie the possibility of abuse.
  12. The state judges may be learned men bound by oath to defend the Č, but
  13. the constitution foresees the risk of state interests obstructing or controlling justice, and
  14. learned men can disagree, necessitating a reviewer to establish uniformity throughout the federal system.

3.  Uniformity and State interests: