Constitutional Law Outline

Constitutional Law

Major Outline

Spring 2015 – UVA Law

• Judicial Review/Supremacy

  • Marbury v. Madison (p.1, 1803) - Initiated Judicial Review

    • Facts: Judicial commission letter from Adams was not delivered until after Jefferson took office. Jefferson tried to withdraw the commission. SCOTUS granted mandamus compelling delivery and Madison (Jefferson’s SOS) ignored it.

    • Rule 1: Judicial supremacy. SCOTUS’s rulings are binding on the other branches of government.

    • Rule 2: Judiciary Act impermissibly expanded SCOTUS’s jurisdiction beyond the constitution (constitution is supreme, thus JA portion was struck down)

  • Legislative Supremacy: alternative viewpoint that legislature decides issues of constitutional law

    • If they pass something unconstitutional then the people will correct the process in their voting behaviors

    • Based in part on the idea that Congress also takes an oath to uphold the Constitution

    • See countermajoritarian difficulty

  • Martin v. Hunter’s Lessee (p. 24, 1816)

    • Issue: To what extent may SCOTUS review decisions of the states--both courts and legislatures?

      • Dual Federalism vs. Federalism

    • Argument for no judicial review of state laws:

      • States Rights: this would run against state sovereignty

      • Constitution only applies to federal government

        • Incorrect, places several restrictions on state

      • Departmentalism: states retain power to interpret Constitution for themselves

      • Slippery slope argument - too much power

        • See McCullugh v. MD: power to tax is power to destroy

        • But see Sorites Paradox: Heap of rice minus one grain is still a heap; even when you can’t draw a line it doesn’t mean things are necessarily going to spiral out of control.

    • Argument for judicial review of state laws:

      • Different interpretations of the constitution by separate states would interfere with the idea of a single federal constitution

        • See economic results of different rules

      • Pointed to the supremacy clause regarding supremacy of the constitution itself - ties into one interpretation

    • Rule: Constitution is both supreme and singular. SCOTUS has the ultimate power to make final interpretations of the document.

  • Article III, Section 2, Clause 3

    • Congress has power to regulate the appellate jurisdiction of SCOTUS and other federal courts.

      • Power is often threatened but has never been used

        • E.g. abortion--Congress post-Roe threatened to withdraw SCOTUS’ jurisdiction over abortion issues

      • Cannot alter jurisdiction for an individual case (United States v. Klein, p. 51, 1872: Congress may not use this power to compel the court to reach decisions that would violate another part of the Constitution)

    • Congress sets the number of Justices, sets rules of procedure, etc.

  • Judicial Interpretive Supremacy (see Cooper v. Aaron)

    • SCOTUS is supreme interpreter and its interpretations are binding on all the other branches and on the states.

    • Alternative theory: Departmentalism. Each of the branches of government is entitled to interpret for themselves because there are 3 co-equal branches of gov’t that have each sworn to uphold the Constitution.

      • Nothing in document gives SCOTUS explicit and exclusive power

      • Departmentalists refuse to comply with SCOTUS rulings unless they are directly directed to them--view the rulings as binding only on the parties.

        • Continue following their own interpretation unless SCOTUS directs a ruling at them.

      • Hollingsworth v. Perry (Supp 96, 2013) (see also same-sex marriage)

        • Rule: State officials are not bound to defend state laws they believe to be unconstitutional

        • Dissent: Politicians should make decisions on policy grounds and let courts make constitutional decisions

    • Non-Acquiescence: In the absence of a SCOTUS ruling other branches may interpret, but once SCOTUS has ruled its interpretation is final.

      • Example: IRS ignores lower court decisions until SCOTUS rules

    • Popular Constitutionalism: complicated, basically congress/POTUS has the ability to scoot around constitutional decisions by the court in cases of popular opinion, such as Lincoln emancipating slaves

  • Limits of Judicial Review:

    • Can review State Supreme Courts only when there is a federal question

• Powers of the Federal Government

  • General:

    • Issue: when can they usurp the states ubiquitous police power?

    • Answer: when they are authorized by the enumerated powers of constitution

      • Federal police power only extended to areas within enumerated powers

    • Constraint on the states: rights reserved to the people by the constitution

    • Federal courts generally lack jurisdiction over state supreme court rulings on state law.

      • SCOTUS may only hear appeals from state supreme courts when there is a federal question

    • Issue: are there implied powers for execution of enumerated powers?

  • Necessary and Proper Clause

    • “We must never forget that it is a Constitution on which we are expounding”

      • Constitution is not a legal code or exhaustive list of powers

      • Enumerated powers gives the ends, and necessary and proper lets the government determine the means

    • Implied Powers (Penumbras)

      • Certain powers necessarily entail other powers

        • E.g. power to coin money means power to build a mint, power to raise a navy means power to build a shipyard

    • Legislative Deference

      • SCOTUS defers to Congress on determining the extent of each enumerated power

    • Definition of Necessary:

      • Sort of necessary, necessary, very necessary, absolutely necessary, indispensably necessary? Where is the line?

      • Constitution uses “absolutely necessary” elsewhere so there is reason to believe that this is a more expansive definition

      • Marshall in McCulloch takes an expansive view interpreting it as closer to facilitative or useful, not absolutely necessary

      • Within Section 8 Defining power rather than section 9 limiting powers, thus it’s reasonable to consider it expansively, rather than in a limiting sense

    • ...

Buy the full version of these notes or essay plans and more in our Constitutional Law Outlines.