Professor Stromseth
Constitutional Law I
Part I Review
The focus of Part I of the course is to introduce you to the role
of the Supreme Court in our Constitutional system
Themes/Issues examined:
(1)
Value
of,
and
Constitution
Purposes
underlying,
our
written
(2) Reasons for Judicial Review by the Supreme Court
(3) Internal checks: How should judges decide cases?
What should constrain and guide the process of judging?
(4) Constitutional interpretation by other branches
(5) External checks on the Supreme Court
(1) On the first theme, the value and purposes of our written
Constitution, we explored issues including:
(a) FEDERALISTS v. ANTIFEDERALISTS: What were the main differences
between the federalists and the antifederalists in the
debates leading to the Constitution's ratification?
-- ANTIFEDERALISTS emphasized civic virtue, citizen
participation; they were skeptical of placing too
much power in the hands of distant federal officials
or judges
-- FEDERALISTS emphasized the problem of faction. They
sought a system of representative government and
of
checks
and
balances
in
which
“ambition”
would counteract “ambition" at the national level.
Also
"double
security"
would
be
provided
by
the system of federalism, in which power was divided
between state and federal governments. (Fed. 51)
(b) ENUMERATED POWERS: The Constitution establishes a government
of enumerated powers: that is, powers are spelled out in a
written document as a way of limiting the powers of the
national government, and reserving substantial power to the
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(c)
states and the people
STABILITY/FLEXIBILITY: Value of a written
providing both stability and flexibility
Constitution
in
-- STABILITY: provides basic structure of government,
different branches in system of checks and balances
-- FLEXIBILITY: provides basic framework but also a
flexible charter which can “endure for ages to come”
and “be adapted to the various crises of human
affairs.” McCulloch (p. 60). The Constitution is
not a “legal code.” Id.
(2) Second Theme: Reasons for Judicial Review by the Supreme Court
and issues raised by Judicial Review:
(a) FEDERALIST VIEW: MARBURY v. MADISON
-- SCT review of legislative and executive action for
its
constitutionality
ensures
that
the
Legislature and the Executive keep within the
boundaries of the written Constitution
-- Judges must declare what the law is and interpret
the Constitution when constitutional issues are
raised in the cases before them
-- How broadly should we interpret Marbury?
--as establishing supremacy of the SCT within its
own sphere? or as establishing the SCT as the
ultimate interpreter of the Constitution more
generally?
(b) PURPOSES of SCT review identified by Justice Story in Martin
v. Hunter's Lessee: national uniformity; safeguard against
state biases; protection of federal rights of all citizens
(c) IS THERE A TENSION BETWEEN JUDICIAL REVIEW AND DEMOCRACY?
--Scholars
have
focused
on
the
"counter-majoritarian
difficulty" that arises when unelected judges strike down
statutes enacted by the Congress, which is elected by the
people
-- Federalist response: Hamilton (No. 78) says judges
should decide based on "judgment" not "will," and that
in striking down a statute as unconstitutional, they
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are vindicating the choices made in the Constitution,
which is the ultimate voice of "the people" (p. 38)
-- Contemporary thinkers: some agree with Hamilton that
judicial review in an important sense promotes
democracy because it protects the values embodied in
the Constitution adopted at a time of heightened
democratic awareness and participation (Ackerman)
-- Others (Ely) stress that judicial review promotes
democracy when courts protect the rights of
minorities to participate fully in our democracy, and
that courts generally should guard against breakdowns in
democratic processes
-- Others emphasize that the Constitution deliberately places
certain rights beyond the control of majoritarian
processes, and that we need the judiciary to protect
individual rights against majoritarian sentiment
-- Still others emphasize that the "counter-majoritarian
difficulty" persists: they stress that interpreting the
Constitution involves considerable discretion and argue
that judges apply their own values as much as any values
clearly set forth in the Constitution ("the interpretive
difficulty") and, moreover, that courts are suppressing
the will of a current majority in the name of a past
majority long gone ("the intertemporal difficulty")
--
We will continue to
throughout the course
explore
these
challenging
issues
(3) Third, we began to discuss (in Marbury v. Madison) and
continued to discuss (in McCulloch v. Maryland) the question of
"internal restraints" on judges: that is, how should judges decide
cases? What sources do/should guide and constrain their decisionmaking?:
(a) TEXT of the Constitution
(b) ORIGINAL UNDERSTANDING: whose understanding? at what
level of generality? specific intent? broad purposes?
(c) The STRUCTURE of the Constitution (e.g. McCulloch)
(d) REPRESENTATION-REINFORCEMENT: that is, judges should
try to protect democratic processes (e.g. protecting
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U.S. citizens from state taxation decision in which
they did not participate, as in McCulloch)
(e) PRECEDENT: we'll focus on the evolution of judicial
precedent in certain substantive areas in the
two chapters (e.g. the commerce clause)
next
(f) ANIMATING PURPOSES AND PRINCIPLES
Etc.
(4) The fourth theme we have addressed in Part I is the issue of
constitutional interpretation by branches other than the Supreme
Court. Among the issues we discussed were:
-- broad versus narrow readings of Marbury
-- the issues raised by the case of Cooper v. Aaron,
in which a Governor defied the Supreme Court's
interpretation of the 14th Amendment
-- the views of Jefferson and Lincoln on the need for
Congress and the Executive to take seriously their
responsibility to think for themselves about what the
Constitution means
-- we compared four different scenarios and explored
their implications:
(a) SCT has determined that a statute IS
constitutional, and Exec thinks it is not
(b) SCT has held that a statute is unconstitutional,
and Exec thinks it is constitutional
(c) Issue is genuinely open or uncertain
(d)
Under-enforced
powers)
constitutional
norms
(e.g.
war
(5) The fifth issue we discussed was external checks on the
Supreme Court: how significant or effective are they?
(a) Constitutional amendment
(b) Appointment
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(c) Impeachment
(d) Congressional control of SCT jurisdiction:
--Art.
III's
language
provides
that
the
SCT
“shall have appellate jurisdiction . . . with such
Exceptions, and under such Regulations as the Congress
shall make.” (Art. III, sec. 2, cl. 2). It also vests
the judicial power of the United States “in one supreme
Court, and in such inferior Courts as the Congress may
from time to time ordain and establish.” (Art. III,
sec.1)
--Marbury:
Congress cannot add to the original
jurisdiction of the SCT.
Also, SCT has critical role
to play in reviewing legislative and executive action
to
ensure
that
the
boundaries
of
our
written
Constitution are respected.
--McCardle:
Congress
may
limit
the
appellate
jurisdiction of the SCT:
Art. III allows Congress to
make “exceptions.”
SCT says it will not inquire into
the legislature’s motives.
SCT notes, however, that
other routes to the SCT are still available. See also
Ex parte Yerger.
--US v. Klein: SCT holds unconstitutional a federal
statute stripping federal courts of jurisdiction and
requiring that presidential pardons be treated as
evidence of disloyalty.
SCT reasons that Congress is
using its power over jurisdiction unconstitutionally as
a means to an end to dictate to the courts how they
should decide a case, denying to presidential pardons
the effect the courts adjudged them to have and
impairing the effect of the President’s pardon power
(p. 84)
--Debates among scholars over the scope of Congress’s
power to limit the jurisdiction of the SCT and the
lower federal courts include the “plenary power” view
(rooted in the broad language of Art. III) versus the
“essential functions” view (rooted in view of the role
of federal courts in the constitutional system)
(e) Another external "check" on the SCT is the willingness
of Congress and the President to think for themselves
about the meaning of the Constitution – and of “We the
People” to do so as well.
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