CONSTITUTIONALISM AND JUDICIAL REVIEW
I. Course Introduction
•
•
Constitutional conflicts are about the reach and power of the different branches of the
federal government (executive, legislative, judicial).
o Who gets to decide or adjudicate these disputes? If it is the courts, how good are
they at actually addressing or dealing with these types of issues?
Main Types of Constitutional Arguments:
o Textual
o Doctrinal
! Instructions that SCOTUS crafts for lower courts to apply.
o Structural
o Historical
! Under banner of “originalism”
o Prudential
o Ethos
II. A Modern Day Look at Judicial Review
•
!
US v. Virginia
o Facts
! The United States sued Virginia and Virginia Military Institute (VMI),
maintaining that the Constitution’s equal protection guarantee precludes
Virginia from reserving exclusively to men the unique educational
opportunities VMI affords.
o Issues
! In this case, the Supreme Court dealt with two issues:
• 1) Was the Circuit Court correct in determining that VMI’s
exclusion of women was a constitutional violation?
• 2) If so, was the proposed remedy adequate?
o Rule/Reasoning
! Ginsburg wrote the majority opinion, relying on the 14th Amendment’s
Equal Protection clause.
! Test for sex-based classifications: Justification must be “exceedingly
persuasive”
• Must serve important government objectives, and the challenged
justification or classification must be substantially related to the
achievement of those objectives.
o Until this decision, “exceedingly persuasive” was not a part
of the formal doctrinal test.
! Ginsburg: Does this classification rest on overbroad assumptions about
women’s abilities?
o Holding
! Trial court ruled in favor of Virginia and VMI.
1!
!
Circuit Court reversed the trial court. Virginia proposes VWIL as a
response to the remedial order.
! Supreme Court ruled that VMI’s exclusion of women was a constitutional
violation, and that the proposed remedy (VWIL) was inadequate.
o Dissent, Concurring Opinion, etc.
! Dissent (Scalia):
• Three-tier system Justice Scalia refers to emerged in the 1970s.
o Reasonable justification (age)
o Intermediate (sex)
o Strict Scrutiny (race, national origin, etc.)
! Concurring Opinion (Rehnquist)
• Practical concerns: After this decision, no public/private institution
of single-sex higher education can stand? (Same expressed by
Scalia)
o Rehnquist and Scalia both say that Ginsburg is blaming
Virginia for things it did before SCOTUS got with the
program.
• Doctrinal concern: Adding in “exceedingly persuasive” means
these kinds of institutions will rarely, if ever, pass muster.
III. Origins
•
•
!
Introduction
o Uniquely law-minded institution
o “Popular constitutionalism”: 18th century idea that the people actually had legal
rights they were entitled to defend in this way (on the streets, etc.)
! “Ordinary law” was enacted by rulers. “Constitutional law” was the
people’s way of constraining their rulers.
o Thomas Paine’s Common Sense was a key writing- it rejected the British
constitution because it contained elements of republican rule, but also monarchy.
Republicanism
o Popular sovereignty
o Public liberty (versus private)
! Participation in various ways in the creation of rules and laws (the town
meeting as the ideal model).
o “Virtuous” and independent citizenry
! Manly courage, etc. Independent requirement meant slaves, women, etc.
were not qualified. A “virtuous” citizen needed to think about the public
interest and not just his own self-interest.
o Republics have the problem of falling apart when they get too prosperous, large,
etc. Idea of the inevitability of decline.
o Republicanism rested on the notion that you need a roughly equal distribution of
wealth. There needed to be a broad swath of property-owning white men in the
community.
2!
!
•
•
!
During the revolutionary era, even fairly conservative thinkers like John
Adams thought that private rights would be secure when “the people”
ruled.
Liberalism
o Private rights and liberties
! Right to own property, freedom of thought, etc.
o Equality of “all men”- resting on natural capacity to reason. Attack on fixed social
hierarchies of superiors and inferiors.
o Liberty of private conscience/property/initiative and trade.
The Origins of the US Constitution
o First Constitutions
! State Constitutions: Concentrated power in the legislature, probably
because of their previous bad experiences with the monarchy as the
executive branch.
• Preferred frequent elections, large elected bodies (low ratio of
citizen to lawmaker).
o New legislators tended to be people who had risen in the
ranks during the revolution.
o Frequently passed laws that spoke to the concerns of
debtors.
! Articles of Confederation
• Major problem with the Articles was that there was “want of
sanction or coercion.” Essentially, there was no way to force the
states to comply with the terms of the Articles unless they chose to.
o No executive branch or courts to act as an enforcement
mechanism.
o Also problematic that states could treat merchants,
manufacturers, etc. different than their own.
! Acting to block free trade by engaging in
protectionism.
• The framers worried that the states’ flagrant violation of the
treaties with European countries would cause the European powers
to start battles that would pull the states apart (one reason why they
advocated stronger enforcement mechanisms to ensure
compliance).
o Shay’s Rebellion
! An armed uprising that took place in western Massachusetts. In the
aftermath, fear spread that the American Revolution's democratic impulse
had gotten out of hand. This fear, combined with the lack of institutional
response to the uprising, energized calls to reevaluate the Articles of
Confederation and gave strong impetus to the Philadelphia
Convention which began on May 17, 1787, which created the United
States Constitution.
o The Constitution (1787)
! A key obstacle for the drafters was the rivalry among the states (the rivalry
was even stronger between slave states and free states).
3!
First draft based representation on a 1:1 ratio- equal number of
representatives for each state in the Senate, but proportional by
free population in the House.
o 3/5 formula included a compromise over slavery, because
the South was worried about being under-represented. The
3/5 formula also applies to electing a president under the
electoral college.
! House reps were popularly elected, but Senators were appointed by the
House. Electoral College reps were also appointed by House.
• Idea is that at least state legislators have been filtered through
once. Believed that they would be broader-minded by virtue of
how they are chosen.
o How so? Elected state-wide, so not directly accountable to
the people, etc.
o Federalists
! Federalists favored large electoral districts, because they believed that lots
of opinions would help draw the national rep. away from having to cater to
their local bully or rival.
! Believed that reps should be a filter for public views and opinions.
! The Federalist No. 10 (Madison)- Addresses the question of how to guard
against factions.
• By “factions,” Madison essentially means any group with
something in mind other than the public good.
o Madison intended to see deliberative politics as happening
among elites within legislative sphere (more elitist type of
republic. But eventually he was driven towards a more
democratic viewpoint).
• In modern times, the conflicts between Congress and the White
House are generally political party clashes. Madison did not
foresee this because he essentially used the “political party” and
“faction” as synonymous.
! The Federalist No. 51 (Madison)- Addresses the issue of separation of
powers within government, and how a system of checks and balances can
be created.
• “Ambition must be made to counter ambition.”
• If one branch of government had all the power, Madison suggests
it would really just be tyranny by another name.
o However, all the checks and balances can also make the
legislative process much slower and more cumbersome.
Serves as a beneficial “cooling off” period?
o Anti-federalists
! Anti-federalists believed that the problem with a large district is that there
are too many people to be heard. So legislators will have to attend to the
squeakiest wheels and loudest voices.
! Believed that representatives should be a mirror for public opinion.
•
!
4!
IV. The Role of the Supreme Court
•
•
!
Founding Era- Madison’s original draft included not one but two general models for
constitutional review.
o Judicial Review model
! Hamilton’s Federalist No. 78
• Alternative model (larger role for courts) was articulated in
Federalist No. 78)
! Marbury v. Madison
o Model with multiple centers of constitutional interpretation and enforcement, of
vetoes by, as well as conflict, dialogue and accommodation among, branches and
levels of government and citizenry (variety of political actors).
! This model did not make it into the final draft.
o There were a handful of precedents for judicial review, but they were intensely
controversial.
The Basic Framework: Marbury v. Madison
o Introduction
! This case is the classic statement for judicial review. Remember that there
is actually no textual provision in the Constitution for judicial review,
although it comes close to suggesting that for state laws.
• The idea of judicial review also does not appear in Madison’s
Federalist 51.
! Other forms of review were included in the original Virginia Plan (neither
of which were incorporated into the final constitution):
• Congress’ “negative”
o Allowed Congress to put limits on state constitutions and
legislatures.
• “Council of Revision”
o Idea of a hybrid institution, including some Senators,
Congress people, and some (but not all) of the Supreme
Court justices. Purpose was to review the constitutionality
of federal legislation.
o Council’s only power was to revise, not to void.
! The New Jersey Plan contained a draft of what eventually became the
supremacy clause (Art. VI, Sec. 2).
• Supremacy clause is as close as we get to a textual provision
allowing for judicial review.
o Political Background of the Case
! Hamilton originally championed lifelong terms for Presidents and
Senators. Adams wanted the President referred to as “His Highness.”
• Hamilton and Adams pulled away from their own Revolutionary
ideals towards much more English models.
• Jefferson and Madison stayed true to the Revolutionary course.
! Conflicts and passions of current European wars were “brought home,”
and the Alien and Sedition Act went into effect.
5!
!
•
!
Interposition: State lawmakers invoked the Constitution and Bill of Rights
to avoid federal law.
• Kentucky and Virginia Resolutions
! Election of 1800- Adams v. Jefferson
• Federalists enact Circuit Court Act before leaving office. This act
would allow them to stack the courts with Federalist judges as their
last act before departure.
o Newly seated republicans repeal the Circuit Court Act.
Insult to the independence of the judiciary?
• Marbury was the miniature version of this case.
! So at issue in this case was not really the constitutionality of the Judiciary
Act, but the constitutionality of the repeal of the Circuit Court Act.
o Marbury Ruling
! Chief Justice Marshall’s Federalist vision was to use the bench to carry out
his political goals.
! The question of jurisdiction, contrary to the normal order, is taken up last
by the Marbury court.
• This allows Chief Justice Marshall to make two important points(1) Yes, he has a right to the commission; 2) Yes, there is a remedy
available- in a context in which he doesn’t have to enforce them
(Political stakes were very low).
o Exceptions: Marshall says the court would not be able to
compel the agent to carry out an act if he is acting as an
agent of the President in a political capacity. However,
Marshall says the President cannot do away with the
commission if it is a right.
! Original vs. Appellate Jurisdiction
• Marshall eventually holds that the Court has no jurisdiction to
issue the writ. CJ Marshall says the Judiciary Act of 1789 is trying
to confer original jurisdiction on the Supreme Court, and Marshall
says they only have appellate.
o (Apparent provision in Article III that would seem to give
them original jurisdiction, but “public ministers” in that
case only means foreigners).
! Alternatively, Article III could be interpreted as a
floor for judicial power, not a ceiling.
Constitutions, Democracy, and Judicial Review
o General Structural Provisions
! Popular sovereignty
! Thus, we the people establish this government, assigning different powers
to different branches.
• And we, the people defined and limited those powers.
• And we wrote them down.
o “The greatest improvement on state and federal institutions
is the written-ness of our constitution.”
o Judicial Review- Judicial Exclusivity in Constitutional Interpretation?
6!
!
“If two laws conflict with each other, the courts must decide on the
operation of each.”
• In this case, Marshall is saying constitutional review of laws is just
like this! In a contest between the constitution and normal law, the
constitution always wins.
! Hypo/Question: Without judicial review (decided by Congress instead), is
the alternative that constitutional limits could be enforced by the voters
who could act as a check on their representatives?
• This was the older idea for a method of constitutional review.
! Question: How could it be the case that a written constitution provides
directions to a court but does not allow that Court to enforce provisions
over and above even federal laws?
! “It is emphatically the province and duty of the judicial department to say
what the law is.”
• This may mean that the federal courts are the superior and always
authoritative interpreters, over and against the other branches and
levels of government.
o Marshall himself moves closer to this stronger
interpretation of “judicial supremacy.”
• May also mean “us too”- alongside executive and legislative
branches, courts also have the authority to interpret and apply the
Constitution, in the course of deciding cases.
! We are always interested in how the court is adjusting its own position in
relation to the other branches of the federal court.
• In Marbury, Marshall was reasoning primarily from broad
principles.
o Judicial Review- Comparative (France v. US)
! One special Constitutional Court vs. every court
! Who raises the constitutional issue?
• Lawmaker or government official vs. ordinary citizen
! When is the issue raised?
• Before the law is promulgated while it is still a bill vs. after the law
is in operation, when it is being applied in a particular case.
! Thus, “abstract” vs. “concrete” review.
o Counter-Majoritarian Problem
! Two forms:
• Dead hand of the past
• Judicial discretion in interpreting the constitution
o Some element of interpretation will always be required
when applying abstract constitutional concepts to specific
cases.
! However, society tends to want there to be some
type of restraint on judges, even if it is created or
justified by using the text itself.
o “Unenumerated rights”: Rest on bare “liberty” in
Constitution, applied with a judicial gloss.
!
7!