Constitutional Law I

2 September 2008

• The only materials are the xerox packet. 45 classes, 427 pages. About 10-11 on average/class. Very heavily edited, without much notation. Therefore, these are only the meat of the case; also, do not cite these.
• We will focus on the "big" cases: recital cases. There are 35 or so of these. They should be highlighted in the TOC and in the text. Not everyone will get to recite, obviously.
  • Start with the facts (he may supply)
  • What's the issue? Misleading: there are an infinite number. But basically: what are we interested in?
  • Holding: how did the court decide the issue?
  • Reasons: what reasons does the court give? (sometimes none whatsoever). Try to distinguish between reason (what persuades the judge) and rationalization (an excuse/explanation that the judge uses). Note that many rationalizations (lengthy discussions of precedent that don't mean anything) get edited out.
  • How do you decide? Arguments for and against. He will generally take the other side. Or (maybe) he'll pick someone close to the front take the other side (the reciter knows what's coming, but the front will have to wing it).
  Approximately 1 recital case/day. Sometimes 2. This means that over 50% of the material will be un-spoken-for. Some of those cases are in there because they are famous and important, even if they're not great for discussion. They're part of the cultural background of constitutional law. Or maybe they present some nuance not covered in the recital case, or some substantive point. Non-recital cases are fair game for the exam.
• The final exam will pretty much be like the end of a recital: what reasons can you come up with to decide that somebody should prevail? Take a position and defend it.
• The final is 100% of the grade. It's pretty much the same every year. At least one question (maybe 2 or 3; there will not be more than 3 questions) will identify a case (e.g., Marbury v. Madison, or some case we haven't even covered), and ask us to react to it, using the materials and arguments we've seen, to persuade that one side or the other should prevail.

  Each side is curved against itself. There will probably be three questions. It's open book. You can't bring computer files, but you can bring anything else you can carry. There will be word limits. A typical question will have a 600 word limit. There's no exact counting (+/- 100 words is not a big deal), but try to stick close.

• This is not a hornbook kind of course. We're not going to cite or get knowledge from those materials-- our goal is to be able to function within constitutional law.
• This is substantive government. The structure of government, how the country is organized. It's 99% federal, but once in a while we'll allude to a state constitution. State constitutional law is interesting and important, but we've only got 45 hours or so.
• With Marbury we start with the court's role in interpreting the constitution. How powerful is the court? Why? That's an odd place to start, because separation of powers won't be fully treated until the end. But we start with it because we can't understand a case (which is the fundamental unit of study), unless we understand where the court is coming from: what is the court trying to accomplish and what is the court's role? So we need to understand the delicacy and awkwardness of the court's position, so we can factor it in. The first 4 cases or so are judicial review and the limits thereof.
• Then we'll cover federal substantive authority under the constitution. How is federal power limited, etc. This was once the whole of Con Law I. It's still controversial.
• Then state and local authority, and their role in the structure of government and policy-making power.
• Next, the structure of government. How is government power limited? Election law and separation of powers. We often wind up hustling through this last part.
• What is a constitution? What does that word mean? In the US, it means that document that's included in the beginning of the materials: the original constitution, and the amendments thereto. But if you think that's what the constitution is, you are naive. The constitution is alive: it is a debate, an argument, it is the use of power. The document is a starting point, but it's not the whole thing. Von Ribentropp: a treaty is just a scrap of paper. A constitution doesn't mean anything in the hands of a powerful adversary-- if the culture that sustains it evaporates, it will be meaningless. The constitution is the clash between ideologies. We all know what the words are, or can look them up-- the real constitution is the attempt to create a better society.
• So when we try to figure out how we should interpret the constitution, we have to decide how we, as lawyers, will approach the constitutional meaning. Options:
  1. First, check the text of the constitution, to see if a thing is constitutional or not. Easy questions will be answered this way, and it's straightforward. Just like statutory interpretation-- always start with the text. Look up words, etc. Apply it. It's predictable, simple. Unfortunately, this mostly doesn't solve things for us: it's rare that the text contains all the answers. It's ambiguous, at times, and loaded with policy words: "due process," e.g. What does that mean, specifically? There is room for play, in other words. Also, it's often only marginally relevant: we're trying to decide whether congress has the power to do something (i.e., will America be better or not?). Also, many people ignore it
  2. Next, check for the intent of the authors. Maybe we can find out from the founders (e.g., Federalist Papers), even though the debate itself was not recorded. The hope is that if we follow the founders, we won't be re-inventing the wheel every day. Of course, the founders are all long gone, and some of there ideals (e.g., slavery) are not so admirable in today's light. So we follow the founders, but we can't rely on them. Plus, do we pick one founder over others? They didn't always agree.
  3. OK, so thank heavens we've got precedent. The SCOTUS is the final elucidator of the meaning of the constitution. Part of a lawyer's skill is the ability to mold precedent into something that serve's the client's aspirations. Of course, there are vast problems with this as well... precedent gets followed when it's appropriate, but a skillful lawyer can always distinguish it, and the court ignores it when needed. Dissents and concurrences: which is more important? How do you cite case with 9 different opinions as precedent? And this has all the problems of the prior two sources: ambiguity and irrelevance. Every lawyer can find hundreds of supporting cases; precedent is the most malleable source here. And anyway, SCOTUS is not bound by precedent, if it doesn't want to be.
  4. If the text, the founders, and precedent don't answer the question, we turn to policy. Con Law in particular is a balance of policy issues. Policy is the glue that holds everything together (it's the only one that is rational, in the end), but it's the least precise. We say that judges make law, not policy, so policy is usually cloaked behind the other three things.
• Now we won't know whether the judges we're writing for are more policy-centric or more law-centric, so one important skill is determining what sorts of arguments to dish up to any particular judge.
• The Brandeis Brief: Brandeis was a famous justice, with the highest average ever at HLS. He was the first Jewish justice ever, incidentally. When he was a lawyer, he argued a case (in a 125 pp. brief) about employment law. 2.5pp on the law in the US. 4-5pp on law in other countries. The remainder on sociology and medicine behind his position. The court favored his client, and went out of its way to say how interesting the brief was.
• Marbury v. Madison is maybe the most famous and most powerful case ever. Or, maybe the most devious fraud. Figure out why...

3 September 2008

• Now I am seat 54.
• Marbury v. Madison
  The most revered decision in all law, arguably. Either that's because it is super important, or it has excellent PR. At one time this was the only case in Con Law I.

  The big question here is not about justices of the peace, but does judicial review exist? And what does it mean? Well, it means the power of a court to void legislation (to deny the application of acts of congress). This means policy power, not just constitutional interpretation, of course. This authority carries other things along with it which are maybe more important:

  • The power to restrict the executive branch, including the acts of the President
  • The power to interpret legislation (not just void it); this includes the power to create, by resolving an ambiguity in some certain way.
  • Nowadays most law is regulation (not statute), created by an administrative agency, based on ambiguous legislation that grants such power to that agency. This, too, can be interpreted.
  • Common-law power: courts make law as well (by articulating it, at least)
  • The power of federal courts to overturn state legislation and also state courts. Federal courts have a lot of power in this sense.

  So Judicial review is a tricky term (like all the terms we'll be seeing. It includes many things.

  Background. The constitution was ratified in 1789 (when the 9th state, CT, ratified it). The first congress was elected that year, and one of its first acts was to create a judicial system, as contemplated in Art III. That was the Judiciary Act of 1789. It also said that in one specific instance, litigants did not have to go through other courts to get to SCOTUS. The act called out an exception: you could bring an action directly before the supreme court for mandamus. A mandamus action is a writ (signed by the court) directed to an executive branch official, and containing some command to do something. The opposite of an injunction (an order not to do something).

  The SCOTUS had to ride circuit, and it didn't have a lot of power in those days.

  Also, Washington has declined to seek a third term. In 1797, Washington's party (the Federalist party) won re-election. The founders scorned political parties, as a rule, but because the electoral system is winner-takes-all, it quickly collapsed into a two-party system. The Federalist party, anyhow, was Hamilton's: it favored federal power (contrary to what we mean by "federalism" nowadays).

  The Republican party was suspicious of federal power (Jefferson, Madison). But the Federalists won in 1797, and also 2 years later, so they controlled all branches of the government (all 6 SCOTUS justices were federalist appointments, for obvious reasons). In 1801, the Jeffersonians won, and the legislature and executive switched away from Federalists, but the courts persisted, because they were appointed for life.

  In a classy move, the Federalists cede power; this is actually a major moment in US history, because it had never happened before. But they couldn't let go 100%, and they yielded to temptation on a couple of points. The reduced the number of SCOTUS justices from 6 to 5 (because one was old, and would have been replaced by the new administration). Also (and worse), they created 16 new circuit court justices-- this was a new thing: lifetime tenure, and some importance in the system (though not the power that circuit court judges have today). They were all immediately named by Adams, immediately confirmed by congress, and so on. All this to prevent Jefferson from being able to appoint anyone.

  So in 1801, Jefferson finally emerges (after 39 ballots in congress) as the president. 10 days later (end of February), the outgoing congress passes a bill saying that the president can appoint as many justices of the peace, at the federal level, as the president wants. This is the lowest position nowadays, but it had somewhat more power then: a 5-year term (a sinecure, basically, for the party faithful). Adams swiftly appoints 42 friends, congress immediately confirms them. Now they have to get their commission letters: Adams signs all the letters, but they then have to be actually delivered. And on the last night of Federalist control of the political system, they had till midnight to get them delivered.

  But Adams was busy, so he turned to Marshall (who was secretary of state, and also chief justice). Marshall also felt too busy to ride around in the dark delivering letters, so he gave them to his brother, who delivered 38 of them. Nobody knows where the other 4 are (that would be a good find). One of those was to Marbury, of course.

  The next day, Marbury cames to Madison (Jefferson's secretary of state), and asks for his commission. No dice. So Marbury decides to sue (with the outgoing Atty Gen as his attorney), before SCOTUS-- where he'll be viewed favorably-- asking for a writ of mandamus.

  Two other footnotes: congress passed a law saying SCOTUS was to take a year off (can congress tell SCOTUS to take a vacation?!?). Also, it looked at the 16 circuit judges, and canceled those appointments, after some hesitation wondering if it was constitutional. Those cases got to SCOTUS about a week after Marbury, and the court upheld those acts, not challenging congress (Marshall was not presiding).

  Marshall's writing was short, to-the-point, eloquent, and maddening to his opponents, because they were also kind of phony. He never went to law school, incidentally.

  What is "vested?" It's puffery, basically, but it sort of means that it's secure, and can't be taken away. What does he get if he wins? There's no vested right to power-- it's maybe just the right to his salary.

  So Marshall says you have a right to your commission as soon as it's signed, regardless of delivery. So what is the delivery procedure for, then?

  But anyway, if you have a right, and it is violated, you get a judicial remedy. If that were not the case, how could civil liberty mean anything? OK, so there's a right, and it follows that there should be a remedy. But what remedy? Mandamus, of course, but that is dicey: can the court command the president? The court says yes. They'd never order the president on a political issue, or a substantive policy issue, but they would on a routine administrative task.

  Tricky, really: all presidential matters are policy matters, at some level. Of course, there's little enforcement. You could ask the Army, but of course the president is CINC. So instead, Marshall says basically "I could issue a mandamus here, but in this instance I can not, because we don't have jurisdiction (because the act granting the court this power is unconstitutional). Why? Because the constitution only grants SCOTUS original jurisdiction (this is Art III) involving ambassadors, public ministers, yadda-yadda. And this isn't that. (but wait, is this J-of-the-P a public minister? what about the president? and Madison?). Marshall just ignores this-- a famous tactic of his, when things are sticky. SCOTUS only has appellate jurisdiction in cases of this type, says Marshall.

  But, all this means is that Marbury will bring his case in a lower court, and one party will appeal, and then SCOTUS will have jurisdiction. So, in other words, the outcome is clear.

  Marbury never got his commission, incidentally.

  After this case came down, the Federalist pary newspaper said "President declared unconstitutional." This gets us to the holding: the court says the constitution would be meaningless if there were not the power of judicial review, so we have a lot of power. This is the first major court to explicitly say there is such a power as judicial review. But at the same time, the holding is also that there's no judicial review and the court is weak: the court has no power of enforcement.

  In fact, the president wins this case. The court rhetorically claims victory, but nothing actually happens. The court didn't assert judicial review again until Dredd Scott, right before the Civil War. It took 100 years to make it actually stick. So the real holding, in a sense, is the mirror image of the apparent holding.

4 September

• Arguments pro/con judicial review. This isn't a yes/no question. The question isn't whether there should be judicial review, but rather, how much should there be?
  • Not very much:
    • Text: not mentioned in the constitution at all. It's the classic exclusio argument. It's not as though this is a minor notion-- it would be there if they wanted it there. Also, Art I contains the power of the legislature-- this is the foundation of the whole system (this was the great innovation: elected legislators making policy). The courts are Art III, which is a later and lesser article. Plus Art I says all legislative power (i.e., all legislative policy) is vested in congress. Judicial review means that someone else supercedes the legislature, and that's inconsistent with the legislature being #1.

      Also note in Art III, the congress creates the courts-- this suggests that congress is superior. Art IV §4: (note that since paragraphs are not numbered, we call them either paragraphs or clauses) guarantees that each state will have a republican form of government (i.e., controlled by the people by election-- an elected legislature, and possibly an elected governor). Note that it does not guarantee this to the federal government (though 5A binds the feds to due process), just the states. So this once again seems like not so much judicial review.

      We can disregard the supremacy clause (Art VI, § 2): it doesn't say that the court is the adjudicator of compliance with the supreme law-- it just says what is supreme. So the supremacy clause is actually neutral on this point-- all it says is that everyone should look to the constitution. There's nothing there suggesting that a judicial power should review this.

      The legilative oath, likewise, is neutral-- the court also takes an oath to support the constitution. It doesn't say that the court should enforce this.

    • Founders: as is typical, there is both ambiguity and contradiction here. The Federalists basically liked judicial review, and the Jeffersonians eschewed it. Hamilton was clear that there should be judicial review (Federalist #78). Washington, also, and Marshall (and then, of course, he goes on to write Marbury): speaking at the ratifying convention in Virginia-- and obviously, that was before he was chief justice. (Parenthetical aside: once he has given his opinion on an issue, he ought to recuse himself from a case that hinges on this issue; but of course if we were strict, everyone would have to recuse themselves from everything).

      But two major founders opposed it: Jefferson (who, not surprisingly dislikes Marbury, because it was a direct smear on him) who is suspicious of domination by a closed clique of lawyers. Also Madison-- even moreso. In fact that's maybe why it doesn't turn up in the constitution, because folks could not agree on it. And if it's not explicit in there, we ought not to read it in. Democracy means control by the people, and judicial review means control by a non-elected small group. Of course, nobody had seen an elected legislature before, and it turned out that the people weren't always perfect (pork, economic reprisals against Tories, e.g.). So Madison mellowed a bit on the issue, because the legislature might be imperfect after all: "a mob of Socrateses is still a mob." We need a body (SCOTUS) to review the legislature.

    • Precedent: there was none at the start, of course, but by the end of the course we'll see a lot. In 1616, Lord Coke (pronounced "cook"), the most famous common law lawyer ever, wrote (Bonham's Case) that the parliament is bound not to contradict the common law. So Judges > Parliament. This isn't exactly precedent-- it's not US, and there was no constitution mentioned-- and just like Marbury, this was not an enforceable proposition, but it does get cited as precedent in favor of judicial review. Of course, maybe both of these cases stand for very limited judicial review, in the sense that neither judge tried to give the idea teeth.

      Also, though, the common law system itself: judges make the law. They are independent, and competent to decide these matters. That had been going on for a long time.

      Plus, John Jay. In addition to being the third Federalist author, he was the first chief justice (resigned before Marshall, obviously). He never had a direct opinion speaking on judicial review. But he did ride circuit. And some things there hinted at judicial review.

      There's anti-judicial review precedent as well (McAardle (?), e.g.): congress can modify the SCOTUS jurisdiction. And even Marshall himself never really challenges congressional authority. Dredd Scott is embarrassing reading even today, after all.

    • Policy: now after all, most of these arguments are just technical, and probably they don't persuade anyone. So these are all explanations for not having judicial reviews, but not reasons why not to have it. Maybe it's fraudulent for the court to claim that it's uniquely qualified to interpret the constitution. Sure they're really smart, but it's elitist to give them this power when elected legislators can speak for the people about what the constitution means-- it's not like lawyers have cornered the market on rational thought and truth.

      Plus, the fact that they're pretty much impossible to remove means that they're not accountable to anyone. And all this boils down to a policy game: consistent 5-4 splits citing the same thirty cases they each always cite-- this isn't entitled to any special deference. Judges should not be given this power: it corrupts.

      And look at Marbury: the court is weak, and will never accumulate power. So at best Judicial review will never amount to a court saying stuff-- there's no functional authority. Moreover, congress can curtail the court's activities, so at what point can you expect the court to really stand up to congress? The reality of judicial review will always be subject to practical considerations (see the war on terror, or the pledge of allegiance cases).

      The court has no budget-- Thomas and Kennedy have to go and ask for money every year. They negotiate sometimes, e.g., for mimeograph machines. The court has a tiny staff: 3-4 law graduates + a secretary. Congress has 10K; the executive branch has millions.

      They can be impeached. They can't 100% control lower courts (they're always fighting with the 9th circuit, after all, and those folks never mend their ways). There are millions of cases per year, and SCOTUS hears about 70. They are inherently and inevitably weak and overwhelmed.

  • Lots:
    • Text: Art VI, § 2 (supremacy clause): constitution and treaties are the supreme law means that only those statutes passed pursuant to them are constitutional. That seems to imply judicial review.