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Constitutional Law

Wendy Parmet

Wednesday, January 2, 2002 (Class 1)

Office Hours: Friday Afternoon, Room 77, sign up on door, or e-mail with a couple times. Will change hours when winter quarter ends.

Course overview

• Start in 18th century. Need to know history, changes of constitutional law. (two weeks)
• Move to topical/doctrinal approach (three weeks).
• Structure of US government.
• Rights, complex issues.

"Crisis du jour" -- impeachment, election, this year--more somber crisis.

Problem with constitutional law as it's taught: as if it's for lawyers. E.g., Rule 11 is for lawyers, constitution should not be. Much more than set of legal rules.

Last year--constitution seemed controlled by courts, determining election. This year, so much going on without the courts.

Discussion of dystopia: how to create constitution from scratch, implement, etc..

For Friday, read handout and #2 on syllabus.

Friday, January 4, 2002 (Class 2)

US Constitution--we will assume it is supreme, supported, etc..

Brief History of Constitution

• First decade of Constitution (1787-1797) determined by politicians and the people; courts almost played no role. Constitution was second document people lived under; original colonies had lose confederation with national congress. No national executive or court system. Consensus that confederation wasn't working; colonies were vulnerable to outside attack and internal revolt. Constitutional convention drafted new consntitution from scratch. Everyone knew Washington would be first president, but by second term divisions started to appear. 1796 first contested election, John Adams won.
• 1800 glitch appeared. Drafters had not foreseen party system and candidates running as team, thought first place candidate would be president, second place would be vice-president. But with team both candidates got equal votes; leading to twelth amendment. First time new party came to power. Federalist Adams lost, Republican Jefferson won.
• In last couple of weeks before Federalists were out of legislative and executive, congress passed laws to stack the courts with federalists. Put John Marshall into Chief Justice position (was Adams' secretary of state). Wanted to put Marbury into power as Justice of the Peace, Marshall signed document night before leaving office to be replaced by James Madison as Secretary of State.
• Crucial turning point: First transition of power, war going on in Europe, Jefferson coming into power hatig Adams and Marshall, no one knowing what the courts did.
• Madison, succeeding Marshall, refuses to give Marbury the seal to become Justice of Peace.
• Marbury requesting writ of mandamus, to force Mr. Madison to hand over the seal. Claims supreme court has authority to issue writ by Judiciary Act of 1789
• Issues
  • Is Marbury entitled to commission for office?
  • Is he entitled to writ?
  • Does law give him a remedy?
  • Can the Supreme Court issue the writ?
  • Is legislation constitutional (Section 13)?
  • Can Supreme Court find an act of congress unconstitutional?
• Is Marbury entitled to commission for office?
  • Yes, commission was done properly (of course, Marshall is ruling, who made the commission originally as secretary of state).
• Is Marbury entitled to writ?
  • Question is whether president subject to the law, i.e., can the president do whatever he wants?
  • Not everything president does is 'political', i.e., not everything is above and beyond the law, when right are vested, issue becomes for judiciary to decide. Jefferson is still subject to the law (i.e., President is not truly sovereign).
  • Is court then sovereign? Relationship between newly-ousted secretary of state and incoming president.
  • Court has power to determine what are vested rights.
  • Case decides that executive authority is limited by judiciary. Also decides that some things are purely political--"political question doctrine"--outside of purview of court.
• Does the law give Marbury a remedy?
  • Marshall poses principle that 'where there is a right, there must be a remedy'.
  • Marshall also holds that mandamus is the proper remedy for this right.
• Can the Supreme Court issue the writ?
  • Marshall looks at Section 13, claims it gives Supreme Court ability to issue writ.
• Is Section 13 constitutional?
  • Section 13 gives supreme court right to grant a writ of mandamus, but section is unconstitutional under Article III Section 2 of the constitution. Marshall reads Article III Section 2 as setting forth exclusive universe of Supreme Court jurisdiction.
  • Marshall holds that not only is executive subject to constitution, but also that supreme court is subject to constitution, can only exercise jurisdiction as specified under the constitution.
  • In making this ruling, Marshall gives court sense of authority, legitimacy, clearly defines court's jurisdiction.
  • Marshall had reason to believe Madison would ignore writ, thus by not issuing writ preserves legitimacy. Did not want to test the boundary of the supreme court's power. Stepped back from the brink relying on jurisdictional argument.
  • Could have stopped here, but Marshall continues to address judicial review.
• Can the Supreme Court find an act of unconstitutional?
  • Could have just decided whether his action was constitutional, but goes on to ask whether an act of congress is constitutional.
  • 'Traffic court interpretation': Marshall is just a judge, has to apply the law, but must look at all the law. If a law is invalid he can't apply it. Modest interpretation of Article III.
  • Does not 'strike down' law, just says he won't apply it because it's invalid.
  • More assertive interpretation: behind modesty of opinion, claiming that judges have duty to constitution and that judge's power comes from constitution. Gives us the sense that the courts are the guardians of the constitution.
  • Act that Marshall is finding unconstitutional was passed by most of the drafters of the constitution; this is the more 'hubristic' view of Marshall's decision.
  • Article III is superior to Section 13 because it 'comes from the people'. Since it is written, it must be paramount.
  • Case is about constitutional supremacy as well as judicial supremacy.
  • Marshall looks only to the text of the constitution; if power is not included within constitution itself, then that power does not exist. Reads constitution with 'presumption of narrowness'.
  • Marshall does not look at intent, desire of people, etc.. There are many modes of interpretation, but he looks only at text.
  • How does Marshall know court can find act unconstitutional? Essentially argues that it is 'self-evident'. Constitution only makes sense this way; almost a teleological argument. As if this is in the nature of the constitution.
  • Maybe framer would have thought congress should interpret constitution, but Marshall finds objective basis for court's power to interpret constitution, not subjective interpreturt can find act unconstitutional? Essentially argues that it is 'self-evident'. Constitution only makes sense this way; almost a teleological argument.
  • Looks only to 'objective basis', not subjective intent of framers. Extremely different mode of interpretation than his own interpretation of Article III Section 2--if he interpretted Article III Section 2 this way, he would not have found basis for judicial review.
  • How important is judicial review?
    • Why should court be more trusted in preserving constitution than other branchs?
    • Whenever court declares law unconstitutional, it is claiming that the two elected branches were wrong.
  • This was never done in the first years of the unconstitutional. Did not decide this again until Dred Scott.

Monday, January 7, 2002 (Class 3)

• Review of Marbury v. Madison
  • In Marbury v. Madison [5 U.S. 137], Marshall was both close reader of text of constitution but also practical/pragmatic.
  • Marbury proclaims courts power but also limits court's jurisdiction and the limits of political reality.
  • Marbury was fundamentally about the separation of powers (legislative, executive, judiciary). Also dealt with issue of federalism; relationship between branches of federal government and states.
• Marbury established judicial review of congressional decisions, to find them unconstitutional. But more common form of judicial review is over acts of states.
  • Issue of national uniformity--in this sense, review of state action is more important than review of federal action.
  • Constitution needed to have stronger national government than the articles of confederation. Articles only had legislature, no executive or judiciary. Question becomes, how much stronger?
  • Conflict became acute with enactment of the Bank of the United States.
    • Shortly after Treasury was ratified, Hamilton (Secretary of Treasury) sought to charter national bank. Would help in collecting taxes, managing funds. Also understood that bank would influence money supply.
    • Widespread concern about competition with state-chartered banks.
    • Conflict in interest rates: bankers (Northeast) prefer high interest rates, agrarians (south) prefer low interest. Sectionalization.
    • Jeffersonians argued vehemently against charter of bank, saw urbanization and capitalism as evil encroachment.
    • First bank was chartered, expired, 20 years later second bank was chartered for expediency.

McCulloch? v. Maryland

[17 U.S. 316] U.S. Supreme Court 1819

• Maryland passed law imposing a tax on all banks operating in Maryland not chartered by the State of Maryland.
• Maryland sues McCulloch? (local bank officials) for failure to pay tax.
• McCulloch? claims tax is unconstitutional. Supreme Court of Maryland rules for Maryland.
• Maryland's basic argument is that Federal Government can only do what is specified explicitly in Constitution; no clause about chartering corporations, thus government cannot do this.
• Maryland's fundamental premise is State Sovereignty. United States is a Union of States; similar to NATO. States are free to leave union and are not bound by its decisions under this conception.
• People ratified Constitution, not States. Although people live in States, they were acting in their capacity as people of the Nation rather than of the States.
• Although people ratified constitution in conventions in their states, Marshall explains this as not being particularly important--they had to meet somewhere, after all.
• States that Government's powers are enumerated, but no constitutional prohibition on implied powers.
• Paragraphs 16-17: Constitution is outline, needs to last, unlike legal code which can change over time.
• Paragraph 16: "In considering this question, then, we must never forget, that it is a constitution we are expounding." Rule of interpretation: read the constitution 'so it works'. Read it as a broad outline of a powerful government that will last for generations. Read the document pragmatically, so it endures.
• Article I Section 8 provides ends of government, must imply means to accomplish the powers attributed to the federal government. What is implied is means to end, but not the end.
• Federal Government has plenary power with respect to its powers, Maryland is only 'sovereign' with respect to powers not given to Federal Government in constitution.
• "Necessary and Proper" Clause
  • Maryland argues 'Necessary' is of absolute necessity, that it exists to limit federal government's power.
  • Marshall does not locate the implied power in the 'necessary and proper' clause, that is pre-existing. Implied power is 'inherent' in sovereignty, powers given to the federal government.
  • 'Necessary and proper' clause is in Section 8, which gives powers to the Federal Government, rather than Section 9, which restricts powers.
  • 'Necessary' could mean absolutely necessary, or be more general. Marshall interprets necessary in a sense which makes document work and creates stronger National Government.
• Article I Section 8 does not say that there has to be a bank. In fact, Marshall does not peg the power to enact a bank to any specific section. It is either everywhere and nowhere. Could probably delete any section of Article I and still have this power.
• Constitution does not mandate a bank, but congress has power to establish a bank.
• Marshall's conception of intent is very 'objective'--does not cite outside sources, notes, legislative history, etc.. He finds in text intent for constitution to be interpreted to survive crises.
• In Marshall's time, Framers of constitution were not revered legends as they are today, thus would not support Marshall's arguments as much if he could refer directly to their intent.
• Marshall's reading of intent is unverifiable, goes back to Locke.
• End still needs to be legitimate (enumerated constitutional power), means still need be not prohibited by constitution elsewhere.
• Paragraph 42: Judiciary will still strike down means that are prohibited by Constitution (Judicial Review) but will also strike down laws that are not necessarily towards the stated end. I.e., is End merely stated pretext for another end that is actually unconstitutional.

Group 6 is 'on' for Wednesday.

Wednesday, January 9, 2002 (Class 4)

Methods and Sources of Interpretation

• Unending question of interpretation from Marbury until today.
• Idea that when it is constitution we interpret it in a certain way.
• Many theories of interpretation (so single predominant theory):
  • Constitution as a text; interpretation is in plain language of text; read text narrowly; do not rely on extra-textual sources.
  • "Grand Style" of interpretation; intentionalist but in objective way; look at text holistically to figure out its meaning/intentionality.
  • Common Law: fairly conservative, not voice of "the people", thus some suspicion towards common law. But framers of Constitution, judges, etc., were trained in the common law. Not just the rules of the common law, but the reasoning of the common law. Deduction, looking to cases.
    • Marbury: idea that document is official when sealed; when there is a right there is a remedy, etc., are common law principles.
  • Natural Law: Divine, universal, indelible rights and norms. Framing generation was not all that religious, but found Natural Law important. Normative but not positive.
    • Most important example of natural law reasoning in the Declaration of Independence. Way of challenging positive law (e.g., King George's law).
    • More often than not assumed that common law and natural law were in harmony. What troubled the framers was mostly the statutory law of England, not so much the common law.
  • How much should positive law influence Constitutional interpretation?
    • Caulder v. Bow (sp?) (cb110), Justice Chase: Vested rights, from common law. Violation of Natural Law to take away vested right. Natural law in this case trumps positive law. If state takes property that is vested, this is violation of natural law and thus null and void.
    • Justice Ardell's response: Court is not empowered to nullify legislature's action just because it violates natural law. Court is restricted to constitution, not to natural law.
  • In 19th century, these issues arose continuously with respect to two major issues:
    • Rights of property
    • Slavery

What if you are a judge in 1840 having to rule on a Fugitive Slave Act case?

• Can you use Natural Law to justify a ruling that is ostensibly contradicted by Article IV, Section 2, Clause 3 which seems to support Fugitive Slave Act?
  • Natural Law must be interpreted, may be interpreted differently by different judges.
  • Could find some other techicality to make 'the right ruling'?
  • Maybe find another constitutional basis, (bill of rights)
  • Could rule according to Law, but include in opinion statement of injustice
• Federalism Issues
  • States Rights: States should be able to determine slavery (would allow freedom in Massachusetts).
  • Federalism: Natural law should apply everywhere; if it's wrong in Massachusetts it would be wrong everywhere.
  • "Fidelity to federalism is fickle"--depending on circumstances interests align with States Rights or Federalism.

Dred Scott v. John Sandford

[60 U.S. 393] 1856 Supreme Court (cb183)

Donald Ferenbach (sp?) book about Dred Scott case in citations.

• Missouri Compromise: set line for slavery. Thought to ease the tensions but tensions increased with each new legislative act.
• Scott is slave who travels with Emerson, is taken North into territory which under Missouri Compromise would be devoid of slavery, and then is returned to Missouri. Emerson dies, Scott is sold to Sandford, sues for freedom.
• Scott sues in Missouri courts, loses, appeals to Federal Court.
• Case is diversity case. Could have been decided on res judicata (already decided by Missouri courts), or collateral estoppel (issue of citizenship already decided in other case; Scott is not a citizen under Missouri case, thus no diversity).
• Taney rejects States Rights notion of citizenship: States can make people citizens of the State, but not make them citizens of nation.
• What about National definition of citizen, including constitution?
  • Taney looks at intent through 'historical documents' -- not looking at text (like Marshall did) but looking at extra-textual sources.
  • Under Taney's view, no African-American, free or slave, can ever be a citizen of the United States under the Constitution.
  • Theory of 'originalism' suggests meaning of Constitution is fixed; Supreme Court's job is to do what framers intended.

For Friday, look at second half of opinion, constitutionality of Missouri Compromise, civil war, Lincoln-Douglass debates.