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Constitutional Law
Part I: Structural Issues - Separation of Powers and Federalism
Judicial Review
 Marbury v. Madison: identified as case that established judicial review

Judicial review = power of court to declare unconstitutional laws passed by Congress and signed by the president  big feature of our system
 Establishes that constitutional law is supreme to the things Congress does

Facts: Federalists tried to stack judiciary before leaving office; Marbury was justice of the peace appointed by Pres and confirmed but his commission wasn't delivered
 Marbury brought mandamus action seeking to compel delivery
 Writ of mandamus = court order to lower court or exec branch official requiring court/person to perform an official duty (opp of injunction)
 Statute (Judiciary Act of 1789) gave Sup Ct power to issue writ "in cases warranted by the principles and usages of law"
o Court ruled that Marbury had a right to the office and the Court has the power to get involved but…
o Court recognized statute as unconstitutional: established judicial oversight/review
 Note: other possible ways to read statute
 Talking about appellate jurisdiction and not original jurisdiction
 If case is otherwise properly before court, mandamus can be an appropriate remedy (would have avoided Constitutional question)
 Where does this power come from?
 Structure of the Constitution: Article III
o Section 1 sets up the Supreme Court

Section 2 lists the extent of federal judicial power—cases arising under the Constitution,
diversity; original jurisdiction over ambassadors and states as a party, appellate jurisdiction over other cases
 So statute giving original jurisdiction over writ of mandamus (since Marshall interpreted it that way) = unconstitutional
 View of § 2 as exhaustive outer limits is key in federal system
 Constitution does not give court power to declare acts of Congress unconstitutional  Marshall comes up with other justifications (not functional)
o Power is inherent in the nature of written constitutions: whole idea of written Const is to establish something higher than ordinary law when Const/statute conflict
 Gave rise to doctrines (avoid deciding Const Q, standing, justiciability, etc.)
 "It is emphatically the province of the judiciary to say what the law is"
 Courts are better at interpretation; Congress is too political

Specific provisions of the Constitution suggest power of judicial review: jurisdiction extending to "all cases arising under the Constitution" would useless otherwise
 But could interpret as only challenging state law under the Constitution
 Supremacy clause indicates that the Constitution is the supreme law, but does not make it clear why the court is the one to interpret it

Judges take a judicial oath to uphold the Constitution
 But so do Congress and others  oath doesn't create new powers
 Unclear why judiciary gets the "last word"; begs the question of whose interpretation rules in case of a disagreement?
 Functional arguments for judicial review Hamilton: Federalist 78: not Courts v. Congress, but about will of people as expressed in the
 Striking down law is just carrying out what people declared to be supreme law
 Can argue this role for court was understood when Const was ratified;
accepted within grant of "the Judicial power"
 Attack: "people" didn't draft Constitution & even if they did, it was long ago;
Congress is elected and may better represent the will of the people
 Response: when people met in conventions about ratification, this was heightened political participation  true representative democracy
 Constitution is moment of higher law-making, superior to ordinary politics;
makes sense that insulated judges would be safeguards

2 tier involvement: 1) very involved during drafting and framing; 2)
ordinary politics take over, limited by Constitution
 Plays out today: try to identify other times of active engagement
 Civil War, Jacksonian, New Deal, Civ Rights, Reagan, Reconstruction
 Identify moments where will of people was clearly expressed

Foresight: someday it's possible we'd want courts to have this power for "good"
(desegregation, civil rights/speech, etc.) How to argue opinion for future?
 Legislatures blow w political winds; want institution to maintain steady course
 Or is thing to be "corrected" really valid expression of popular will?
 Constitution intended to protect those not represented by political majority

Functional arguments are now advanced more often than Marshall's claims as justifications for judicial review
How do courts exercise the power of judicial review?
o Text of the Constitution: lay article of Constitution next to statute and see if they are consistent; if the text controls, end of story
 Always need an account of how the argument squares with the text

Original Understanding/Public Meaning: go back to mindset of framers for abstract concepts
("equal protection," "free speech," etc.)
 Problem—Look at their narrow meaning? Goal they were accomplishing?
o Precedent: look to prior Sup Ct decisions to decide "what the law is"
 But if interpreting a document, why so similar to judge-made common law

Policy/Morality: what is the just, sensible way to run society
Countermajoritarian difficulty: judicial review is a way for a body that has not been approved by the people overturn the decision of those who do represent/are accountable to the people

Then judicial review appears to be anti-majoritarian institution

Counter: courts protect minorities who can't protect themselves; constitution is higher lawmaking and superior to ordinary politics, etc.
Does it matter whether the rationalization for judicial review is justified? Could be that without justification people would challenge it or that people simply accept it since we've been doing it and it works

Could be important to justifying specific action - if point is to protect minorities then no problem interfering in that situation
Judicial review of State Court decisions: Martin v. Hunter's Lessee

Further expands Marbury  court can overturn state judicial action

Facts: litigation btw US citizen/British subject over land; Sup Ct remanded for reversal by
VA state court, which refused b/c said SupCt couldn't dictate its actions
 Note: this case is more central in federal courts jurisprudence

Opinion is mix of textual and functional o

 

Text: Article III clearly gives Sup Ct this power over state courts "all cases in cases and controversies"
 Function: need uniformity in interpretation of federal laws
Power to overturn state law has been exercised more frequently

Justice Story: far riskier to lose ability to correct what states have done (vs. Congress)
o Major decisions in Sup Ct generally involve states (crim pro, deseg, 1st A, etc.)
o Holmes said without power to declare acts of Congress unconstitutional the country would be fine but without power to declare state laws unconstitutional the country would fall apart
Does overturning state law pose same counter-majoritarian threat to democracy?
o Bigger threat: more push-back  alien body regulating state decision
 Less democratic—people in local democracies ought to be able to run own show and solve own problems in own way without interference from Wash
 Local variation/experimentation can lead to "better" outcome; people can elect to live in states whose laws they prefer

Less of threat: only state majority is being challenged, not national majority
 Risk of minority oppression greater with more extreme views
 States more insular/cut off from national values, so good for fed cts to step in

Raises Federalist 10 issue: "a republic has never succeeded on a large scale"
 Challenge: actually more likely to succeed because a larger group is more stable and has less varied/extreme views
Views on countermajoritarian threat may vary depending on who is challenging the law

E.g. nat'l progressives vs. local racists, or nat'l big business vs. local progressives
 May be reason to give broad scope to federal legislation, not courts

Challenge: litigation is expensive so many people (especially individuals) won't sue
 Courts can't do anything unless someone brings a lawsuit
Putting judges in charge of federalism is a distinctly American approach

Madison's first choice: "council of revision"  judges, exec branch, legislative, with complete veto power over state laws
 If democratically elected, more or less democratic than current system?
 States' rights view: risk dominant local elites exercising power at the national level (deal-making); generally more oversight of decisions
Judicial exclusivity: what if Sup Ct makes decision and President disagrees?
o Okay to follow only court's specific order but act differently in identical situation?
 Supreme Court's reading of Constitution maybe opposite that of exec branch
 Problems with presidential defiance:
 Ignoring Court's interpretation not conducive to ordinary law system
 Judicial decrees lose legitimacy; president is seen as autocratic
 Challenges of current system of judiciary being final authority:
 Time consuming/hard for Court to address everything through order
 Congress could be referee, but Pres might ignore Congress too

Example: Lincoln's response to Dred Scott  Dred Scott is still a slave, but anyone else brought into a free state is free; make slave owners litigate over it
 Is this a good check on the court?
 Makes court think before doing something that outrages President or is particularly unpopular

Benefit more for Lincoln-type disobedience than Southern
 Maybe positive check in some circumstances, but creates uncertainty

Interest in having things settled to move on from there

Benefit to having known system-wide that Sup Ct settles things 

o o

Raises access to justice problems if must go through burden of litigation to enforce their rights, when clear they would win
 Southern response to Brown similar: only desegregate if court order
 Cooper v. Aaron: the law is the law, must follow even w/out order
Judicial deference sometimes comes into play  court is hesitant to overturn something
Congress seriously contemplated and concluded was constitutional
Strauss's view on judicial exclusivity and precedence
 If accept Marshall's arguments in Marbury, can accept exec challenge to court
 Executive also took oath/can read constitution, same as judiciary
 But if take precedent-focused view (not text/originalism), have some leverage
 President can challenge a judicial decision as a break with established law,
but if outcome/interpretation is consistent, he ought to respect it

President, like court, takes precedent-based approach to Const
 Exec branch doesn't look at Constitution with fresh eyes, just follows established precedent even if they disagree with it

Scope and Extent of Federal Power
 Text of Constitution: Article I
o § 8: All legislative power "herein granted" = not general power, but enumerated
 If Congress wants to do something, must show it falls into these categories
 Lay and collect taxes, provide for general welfare
 Courts have given Congress lots of coverage with this provision
 Regulate interstate commerce  hugely important clause
 Coin money and establish post office (integral to McCulloch)
 Raise and support armies
 Punish specified crimes
 Point raised in McCulloch—no other authority, but lots of fed crimes
 If followed expressio unius (excluded if not explicitly listed), would make enormous amounts of federal criminal code unconstitutional
 All laws necessary and proper for carrying into execution foregoing powers
 Given expansive reading by Marshall in McCulloch

§ 9: limits on what Congress can do
 No bill of attainder (single out individual for punishment), ex post facto law
 Bill of Rights (Am I-X) contains similar limitations on Congressional power even when operating within one of the Art I § 8 enumerated powers

§ 10 Cl 2: Supremacy Clause
 Constitution, treaties, and laws of US are the supreme law of the land
 Trumps anything that a state does; binds state judges
 McCulloch v. Maryland: shaped US law as much as any Sup Ct decision ever has

Background: national bank established by Hamilton as incident to other powers, Madison opposed at the time (had rejected idea at constitutional convention) then changed mind in light of bank's long history/intervening events (which makes it constitutional)
 Maryland was hostile to bank's existence, tried to tax it at a confiscatory rate

Issue 1: is the bank constitutional?
 Yes; 1. emphasizes that it is long-established and generally accepted
 But if glaringly not okay, established history can't save it
 Should court defer more when Congress clearly considered constitutionality? It was proposed and rejected in the constitution 




No: Congress probably trying to push envelope; undermines view that court is supreme arbiter of law; creates incentives to state on record that law is constitutional when really driven by interest groups

Don't impose judicial structure/charade on non-judicial body
 Yes: just giving Congress benefit of doubt at the margins

When upholding law anyway, often emphasize deliberation
How far do Congress's limited powers extend?
 10th A doesn't say "expressly delegated," but treating Congress's powers so expansively reduces 10th A to a truism
 Note: did say "expressly delegated" in Art of Confed, then removed -
Marshall says this was purposeful to make clear that a federal government power doesn't have to be enumerated
 Since the Constitution is from the people, it's not something given up by the states so states don't retain any sort of ultimate sovereignty
 Enumerated powers argument: when giving power Congress to do something, 2.
makes sense that they would also have the power to take steps to bring about that something (means to a legitimate end)
 Separate from necessary/proper argument, but bolstered by it

Note: need not be absolutely necessary
 If Congress does something "appropriate and plainly adapted" to accomplishing one of its enumerated powers, then it is Constitutional
 Congress decides if it is "appropriate and plainly adapted"
 Opinion doesn't say which powers bank is connected to
 This logic could be very expansive, undermine limits on federal gvt
 Court could protect states by insisting on nexus btw means/ends, or necessity
 Marshall says ct inquiring into degree of necessity treads on legislative ground, but if concern is Congress overstepping, maybe should look

Seems court is making value judgment of what is worth interfering with states over
 So broad that Marshall doesn't even say what enumerated power a bank is helping and doesn't go into degree into necessity
Marbury and McCulloch: Marshall goes through trouble of establishing judicial review, then doesn't use it to strike down Congressional act
 Maybe distinction between striking down things that are forbidden compared to things that are not explicitly allowed, both based on text
 Looking at time of opinions, maybe Marshall just wanted to support federalism experiment: 1) text; 2) text, + what's been happening
Issue 2: can Maryland tax it?
 No; can infer this from the supremacy clause (textual basis)
 "The power to tax involves the power to destroy"  states can't destroy federal entities
 Beyond Supremacy Clause: a state taxing a federal entity affects other states that are not represented in the acting state's legislature - structural argument
 One role of fed gvt is to protect interests of those not represented
 Pushback: states do all sorts of things that may affect other states (e.g. good public universities, business climate)—what is legitimate external effect?

Commerce Clause 

Two Commerce Clause Frameworks

1. Remove an obstacle to interstate commerce - ex: can't dump stuff in water that will impede shipping for commerce

2. Prevent interstate commerce from causing harm in destination state - ex: can't ship poison to a state
Hugely important as basis for federal laws (healthcare, labor, safety, civil rights, etc.)
Gibbons v. Ogden: (track 1) steamboat monopoly licensed by NY to Ogden; Gibbons licensed by federal government, challenged NY regulation

Was grant of license by Congress constitutional? Yes, under Commerce Clause
 How broad is the power to regulate interstate commerce?
 Commerce = transactions (buy/sell), intercourse of all kinds

Valid fed license gives right to ignore state law because of Supremacy Clause

Marshall's themes:
 Power is complete in itself, exercised to utmost extent, has no limitations other than prescribed in the constitution, and is plenary/ supreme in its sphere
 Once established Congress can do it, assumed states cannot
 No enclaves for states - not the law now
 Check on federal power is the wisdom and direction of Congress and their identity with the people (political, not judicial, check)
o Johnson concurrence: Congress exclusively can regulate commerce among states i.e. states can't regulate amongst themselves
 Marshall didn't adopt position in majority (so not quite law), though Comm Cl does impose some limits on states' power not explicit in Constitution
Commerce Clause jurisprudence: timeline

After Gibbons (1824), not much pre-Civil War; Sherman Act in 1890

Late 19th-early 20thC: courts struck down many acts of Congress as exceeding power
 Sherman Act (court backtracked) and other laws
 EC Knight (1895), but see Swift (1905); Champion v. Ames (1903); Hammer v.
Dagenhart (1918); Schechter Poultry (1935); Carter Coal (1936)
o New Deal was a turning point: after Carter Coal and other cases struck down laws in ways that case doubt on New Deal, FDR devised court packing plan
 Changed course of judiciary—after mid-1930s, court stopped striking down

1937-mid 1990s: court never struck down law on ground it exceeded Cong's power
 Many regulatory schemes are product of that period (labor, health/drug, crim)
 Jones & Laughlin (1937); Darby (1941); Wickard (1942); Heart of Atlanta (1964);
McClung (1964)
 Dramatic, non-gradual change in scope of federal power  by end of 1960s, hard to think of anything Congress couldn't reach under Commerce Clause
 Political safeguards theory came into prominence

Mid-late 1990s: court struck down two federal statutes as exceeding Comm Clause
 Consensus is this was a "blip," not a new era of judicial oversight, but remains to be seen—healthcare reform is raising new issues
Key Pre-New Deal Cases (can be seen also just too attenuated because obviously commerce)
o EC Knight: Sherman Act (no compact/combination/conspiracy in restraint of trade) justified under comm cl; gvt went after sugar refinery that had monopolized industry
 Court struck down Act—monopoly in manufacturing, not commerce
 Short-lived as governing law (reversed ~10 years later)
 Why not accept this as a limit? Manufacturing exists to be a part of commerce
 Monopoly on manufacturing could totally obstruct commerce 

Challenge: slippery slope problem—everything can affect commerce if traced far enough; would eviscerate idea that Congressional power is limited

UMW v. Coronado Coal: Court ruled that labor unions were trying to interrupt commerce so
Congress could use the Sherman Act to stop striking workers
 Ridiculous that in Knight it was found to be manufacturing but then labor strike was commerce

Southern Railway v. U.S.: Court ruled that Congress can require safety devices on all trains even if they never cross state lines since a breakdown would effect interstate commerce by blocking tracks (1911)
o Shreveport Rate Cases: Court ruled that despite the railroad only regulating the rates for intrastate commerce because inter and intra required the same rates it effectively regulating interstate commerce and so could be struck down (1913)
o Champion v. Ames: restriction in interstate shipment of lottery tickets
 Court upheld (at heart of time when striking things down), seen as explicit reg
 Challenge: pretext, rather than purposeful regulation of interstate commerce
 Can Congress regulate moral issues?
 This is clearly commerce; not up to court to second-guess rationale
 Spillover/externality problem: if Congress can't regulate, one state can export something another state objects to but has no recourse
 Example of track 2 stopping harm to be caused in another state

Hammer v. Dagenhart: ban on transporting in commerce goods made by child labor
 Court struck down—high point of court resisting Congressional regulation
 Saw as a pretext; really regulation of child labor, not of commerce (limited definition of "commerce")
 How is this different from Champion?
 In Champion, goods themselves harm morality ("intrinsically bad")
 In Hammer, the manufacturing process is harmful, not the products

No general power to prevent "unfair competition"
 Holmes dissent: issue is Congress's ability to decide whether to regulate; shouldn't matter whether everyone thinks something is evil or not

Schechter Poultry: National Industrial Recovery Act (part of New Deal)—about to expire and had become unpopular, so unanimous decision with muted impact - Claimed NIRA wasn't regulating commerce because allowed industry to do things like set wages

Carter Coal: Bituminous Coal Conservation Act (precursor to NLRA) gave power to unionize and bargain collectively, regulated working conditions
 Court struck down: this is production, not commerce  indirect effects
 Not an issue of magnitude of effect (agreed bad), but of directness
 Court repudiated this in Jones & Laughlin
See these above cases as too attenuated because under McCulloch can do things that effect commerce to carry out regulation and manufacturing can be seen as plainly adapted
Dramatic change in late 1930s/early 1940s—Key Cases

Jones & Laughlin: addressing NLRA; abandons direct/indirect effect distinction
 Need "close and substantial relation" to interstate commerce that control is essential or appropriate to protect commerce from burdens and obstructions
 Straightforward argument: power to regulate commerce, and power to do whatever is
"necessary and proper" in order to regulate
 But concern is always slippery slope counterargument

Wickard: farmer growing wheat on own farm for personal use was restricted by quota
 Court upheld application of quota: producing more  buying less in market  too much on market  undermines regulatory scheme, so can act

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