Constitutional Law I. Origins of the US Constitution a. Articles of Confederation i. no federal power to tax or regulate commerce ii. no executive or judiciary branch II. Marbury v. Madison (1803) a. Facts: i. Marbury (appointed justice of the peace under President Adams – Federalist) sought writ of mandamus (court order) compelling President Jefferson’s (Republican) Secretary of State, Madison, to deliver his commission b. Holding: i. Supreme Court does not have power to direct the President to deliver commission c. Rationale: i. SC has power to declare acts of Congress unconstitutional (judicial review) ii. midnight judges bill (Judiciary Act of 1800) 1. 16 new federal circuit court judges (staffed by Federalists) 2. replaced system of SC justices “riding circuit” 3. reduced SC from 6 to 5 justices (to deny Jefferson appointment) 4. empowered President to create justice of the peace positions (Federalists) 5. Republican legislature repealed provision creating circuit court positions a. unconstitutional? legislature eliminated SC’s 1802 term, so that they could not interpret repeal iii. Jefferson refused to deliver JOP commissions (Marbury) iv. Marbury holding (Marshall): 1. power of SC to grant writ of mandamus (Judiciary Act of 1789) a. but, prohibited by a provision of the Constitution – Article III, Section 2 i. SC only has appellate jurisdiction (with exceptions for original jurisdiction in narrow category of cases) ii. no exception for writ of mandamus b. Alternative interpretations available: i. Marshall does not mention clause allowing Congress to create exceptions to SC’s appellate jurisdiction ii. SC could interpret Constitutional enumeration of original jurisdiction category as a minimum iii. But, Marshall uses decision to establish judicial review c. unconventional form of opinion: i. merits placed before jurisdictional decision, so that Marshall can assert that Jefferson’s action was illegal (otherwise, lack of jurisdiction analysis would preclude the discussion) III. Judicial review: power of SC to declare acts of Congress, Executive, and states unconstitutional (state or fed. level) a. justifications: i. written constitution 1. limits should not be surmountable by those to whom those limits apply (legislature and executive) 2. comparable to “the fox guarding the henhouse” ii. judicial role 1. Article III – “arising under” jurisdiction iii. supremacy clause iv. grant of jurisdiction 1 v. judges’ oath 1. superior to legislators’/executives’ oaths? b. judicial review in the constitution i. un-enumerated ii. precedent of judicial review in state courts under Articles of Confederation 1. but empirically, state courts did not exercise power of judicial review a. state judges were threatened w/ impeachment when exercising judicial review iii. Hamilton’s Federalist 78 1. argues for JR; favoring constitution over inconsistent statutes 2. not mentioned in other Federalist papers IV. Ratification of the Constitution a. Anti-Federalist fears i. centralization of government robs citizens of public participation b. Federalist argument: i. Republican form of govt. avoids problems inherent in representations ii. managing factions iii. JR limited to undisputable Constitutional violations 1. assumption that judges abide by their consciences (to protect Constitution); otherwise, people would have the right to revolt (since govt. ignores the Const.) c. Departmentalism: i. court as a co-equal interpreter of the Constitution 1. in practice, branches defer to the interpretations of the other branches ii. judicial exclusivity? no; 1. Cooper v. Aaron (SC 1958) – desegregation order a. state executive refuse to abide by order, assert own constitutional interpretation 2. but, Marbury v. Madison interpreted as SC’s effort to assert judicial supremacy iii. presidential constitutional interpretation 1. competing interpretations? often resolved by political actors (legislature and executive); see torture memos, DOJ, etc. iv. enforcement question: why do parties abide by the constitution? 1. preserve social order v. “under-enforcement” of Constitutional norms 1. allows other branches to interpret Constitution more expansively than the SC V. Democratic deficit (counter-majoritarian problem) a. legitimate political authority derived from will of the people b. How to reconcile democratic legitimacy conception with judicial review (by unelected judges)? Especially when contradicting majority political consensus? i. Same issue as applied to constitutionalism broadly c. Conventional explanation; Marshall (Marbury) and Hamilton (Federalist 78): i. people (supreme democratic authority) ratified Constitution and Amendments; so, principles ratified carry democratic mandate (ideal of democracy; highest expression of American democratic decision-making) 1. takes precedence over lower forms of democratic decision making (legislative statutes, etc.) 2. Hamilton’s justification: a. judges exercise judgment, not will (will is to be exercised by the people) i. statutory interpretation example (judgment based on intent of the people, rather than ideology of the judge) ii. Hamilton: if judges can interpret statutes, they can accurately interpret the constitution, as a translation of the public’s will 2 iii. so, when a judge strikes a law down, it is the people who initially determined that the law was unacceptable, by stating principles in constitution d. Dworkin’s moral interpretation of judicial responsibility VI. Originalism and textualism a. text is insufficient to create all operative structures b. but, originalists seek to look beyond text to general principles, to reconstruct framers’ intent c. Dworkin (Moral Reading): i. constitution embodies broad principles/general concepts (e.g. equal protection); no need to consult framers’ prescriptive solutions (applications) to discrete problems (such as racial discrimination), since current legislature can fill in the content of the principles core debate in constitutional interpretation (living constitutionalism v. textualism) 1. framers of 14th Amendment supported racial discrimination (segregating schools at time of ratification) VII. Hamilton/Marshall framework (“People trump people”) a. what to do in the case of disagreements between current citizens and Constitution? i. counter-majoritarian objection ii. dead hand problem of judicial review (why should we be governed by the dead hand of the past?) 1. complaints of democratic deficit 2. “Jefferson’s problem” – “the dead have no rights” 3. ratification conventions were only open to landowners, whites, males; votes to ratify were close b. possible answers: i. constitution can be amended 1. although, very difficult process (requires dual super-majorities) ii. people should have freedom to bind themselves in the future 1. thoughtful v. emotional decisions? iii. Ackerman: “constitutional moments” – elevated democratic politics (3 moments in American history- founding, reconstruction, New Deal) 1. but, much of the constitutional decision-making was based on political compromise, rather than high-minded principled decision-making (based on values) iv. content of the constitutional commitments 1. vague; allow for judicial flexibility in interpreting content 2. delegated judicial paternalism? VIII. Responses to the counter-majoritarian objection: a. Courts’ political accountability i. elected judges b. “political” branches (executive and legislature) also lack democratic imprimatur in many ways i. mal-apportioned Senate ii. mal-apportioned Electoral College iii. filibuster; committee system; other minority veto-points iv. statutes actually require super-majority (majority elects president, different majority elects legislature, etc.) for passage v. interest groups c. senatorial confirmation of presidential judicial appointments d. legislature’s ability to supersede SC decisions by statute e. Congress controls the budgets and size of the federal courts i. impeachment power f. Congress could limit fed. courts’ jurisdiction (such as limiting its Federal Question jurisdiction) i. Ex Parte McCardle 3 1. Court acknowledges that the legislature has control over its jurisdiction g. Although Congress and the President have the power to strip the courts of their power, they have never done so in a significant way; politically untenable option i. interpretation A: these “weapons” are ineffective, can’t be used ii. interpretation B: SC is aware of the power of the political branches and acts accordingly, to preserve its power iii. political branches have other options: 1. ignore SC decisions (Lincoln) IX. Dworkin’s moral reading a. Why should we care about majoritarianism, as opposed to democracy? i. collective v. individual conception ii. representation allows for deliberation in decision-making 1. Federalist 10 (Madison) a. representatives “refine and enlarge” the public’s views through their wisdom, patriotism, etc.; qualitatively better forum i. allows for independent judgment of the right decision (representatives should do the “right” thing, not the thing that we say we want) ii. as opposed to civic republicanism, which expects citizens to engage in deliberate decision-making themselves iii. displaces decision-making to the national level iii. Dworkin: judges and courts should engage in same process of representation as the legislature 1. insulated decision-making; SC is last institution capable of enacting Madison’s ideal a. unelected; no cameras allowed; private deliberations; designed to create a “sanctuary” i. critique: only 9 justices, not representative of