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Constitutional Law
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Marbury v. Madison
  • conflict of interest: Marbury (F) was appointed last minute as justice of the peace by Adams (F): Thomas Jefferson administration (Repub)/his secretary of state Madison refused to honor commissions that were not delivered until after Adams' administration. Justice Marshall is also F
  • no remedy for Marbury: Article III(2)(2)- no original jxn
    •  writ of mandamus is not enumerated; judicary act of 1789 (which stated that SCOTUS could issue mandamus to persons holding office) is thereby unconstitutional
  • judicial review: power grab (rules against his own party)
    • nowhere in the constitution 
two difficulties of judicial review
  1. intertemporal
    1. what best expresses will of the ppl, 18th century document or democratically elected congress?
  2. countermajoritarian (CMJ)
    1. judges not directly accountable to consituents
    2. transparency (Marshalls solution to CMJ)
      1. mechanical and textual approach
      2. transparent because opinions concerning these approaches are published
Martin v. Hunter's Lesee (1868)
  • F: land dispute (US treatise- Martin v. Hunter- received land from virginia gov.)
  • Virgina refused SCOTUS ruling to grant land to Martin, saying Judicary Act 25 (which granted scotus appellate jxn to state orders concerning the const., was unconstutional- because: const. is silent on controlling state gov., only allowed to act upon people)
  • Justice Story: 
    • "it's the case, not the court that grants jxn"
    • state power is not absolute, already limited by const (power to coin money...etc.) 
Three reasons for SCOTUS appelate jxn over state court decisions (hunter, justice story)
  1. uniformity of decisions on constitutional matters
    1. const. rights should not very state by state
  2. state jealousies:interstate conflict --> disdain for federal laws, thus federal judges should have oversight of federal laws
  3. forum shoppingto protect interests of people from forum shopping plaintiffs 

Three Sources of Judical Decisions

  1. the text itself and its original understanding
  2. structural approaches: reinforcement or improvement of democratic processes
  3. natural law and rights: philosophical arguments about natural rights
District of Columbia v. Heller (2008)

F: Washington DC statute prohibited possession of handguns at home

Scalia, maj: 2nd amendment- individual right to bear arms (not collective right only provided to military)

  • operative clause: "rights of the people"- all members of the political community, not just militia 
  • analysis of history: English history showed the 2nd amendment just codified a pre-existing right
  • prefatory clause- introduction to operative clause; treated as background
    • "well regulated milita"- property trained. all males. 




critical tool for interpreting the const. 



defference to public understanding at the time of enactment 

reasons: concepts change, such as firearms, which have evolved rapidly with the growth of technology- important to preserve original understanding

McCullough v. Marlyand (1819)

F: Mc- cashier at federal bank; Federal bank was a very contentious issue, and many states (Maryland) opposed it by issuing state taxes

Maryland A: 1) federal bank not ennumerated 2) "necessary and proper" = absolutely necessary 3) const. was negotiated by states, who afforded the fed gov. their rights

Marshall A:

  • Historical: people, not the states, ratified the const. ("glorified meeting hall for convenience") -- Fed gov's primary relationship is with the people & bank was decided after fed gov. heard all of states objections 
  • Textual: "necessary" is broader- convenient or useful
  • Structural: a) supremacy clause... b) no vice versa representation: fed gov. has no representation in state legislature, where as state reps make up fed gov.
  • Consequentialist: power to tax is power to destroy
    • threatens the existence of the fed. gov. 
Marshall's textual analysis of "necessary and proper" (Maryland v. Mcculough)

1. necessary = essential, not confined to just that thing


2. degrees of necessity- another clause “absolute necessity”


3. narrow interpretation deprives Congress of their role to exercise reason and accommodate legislation to circumstances


4. buzzword: beneficial exercise




Calder v. Bull (1798) [natural law]

NL: the idea that there are universal moral principles, that are shared across all socieities, that don't necessary emanate from any legal text but should govern and trump any written law/legislative act 


Justice Chase: even if the act does not exceed the fed. govs. ennumerated powers, if it contradicts these principles, such as general welfare, it is an abuse of powers.


Justice Iredells: what's written governs- the purpose of a written constitution is to define with precision the objects of the legislative power, and to restrain its excersise with marked and settled boundaries

5 Methods of Political Control over SCOTUS
  1. constitutional amendments:that overrule SC decisions
  2. power to appoint: executive branch appoints justices
  3. impeachment: justices can be removed from office
  4. life tenure: executive appointments --> lasting influence
  5. informal mechanisms: hesitance in making decisions that part from the mainstream, because they don't want to lose legitimacy in public opinion
Marshall's two arguments for judicial review (Marbury)
  • the constitution is the supreme law of the land and must be upheld 
  • to turn a blind eye toward the constitution and only review issues of law is a dishonor to the constitution 

Ex parte McCardle (habeas corpus/reconstruction era)



Facts: McCardle (M) imprisoned by the military tribunals, enacted by C's reconstruction powers following the civil war. M appealed the constitutionality of C's reconstruction powers/military tribunals for state citizens through Habeas Corpus Act 1867(HCA): allowed for appeal to federal court/ scotus if punishment of party was unconstitutional

  • SC granted certiorari, C, afraid that its reconstruction powers would be taken away by SC, repealed a portion of the HCA which thereby limited SC's appellate jxn 


Chase, maj: while Article III(2) grants enummerated original jxn to SC- that cannot be altered by C (Marbury), appellate jxn under the "exceptions" clause ("SC shall have appellate jxn over all other cases, law and fact, with such exceptions, and under such regulations as C shall make") 

  • Broad reading: C has plenary control over SC appellate jxn
  • Narrower reading: C can only restrict certain avenues, but cannot block subject matter entirely (McCardle could have still brough an original petition of certiorari)- and, voiding all routes would violate M's 14th amendment right to due process 
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