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Part I: Structural Issues - Separation of Powers and Federalism
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
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?
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
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);
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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