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Constitutional Law: Judicial Review

We spent some time talking about judicial review, though I think we’ll get into it more later. Most people probably heard about the big case in this area at some point during high school: Marbury v. Madison. There had been elections and the Federalists were dealt serious losses. Before leaving office, the lame-duck Congress passed the “Midnight Judges Act” which added new judgeships and they confirmed new judges (all of whom were Federalists). Because the confirmations had been done so late, many commissions hadn’t gone out, and Madison wasn’t about to send them. Marbury, one of those confirmed judges, brought a mandamus action to compel Madison to deliver the commissions. There were several issues in this opinion:

1. Does Marbury have a right to the commission?

2. Does Marbury have a remedy to obtain the commission?

3. Can a writ of mandamus be enforced against the executive branch?

4. Does the Supreme Court have the power to issue the writ?

4a. Is § 12 of the Judiciary Act (which allowed the court to issue such writs) a valid exercise of congressional power?

4b. Is the court empowered to make this determination?

The court answered in the affirmative to the first three questions, thus placating the Federalists. The court said, however, that Congress didn’t have the power to enlarge the original jurisdiction of the Supreme Court because that wasn’t one of the enumerated powers so the Judiciary Act was unconstitutional. The Court further said that it had the power to review the constitutionality of Congress’s grant.

We now have the question of whether judicial review means judicial supremacy or judicial finality. Before Marbury, judicial review went on and in a way that showed judicial supremacy (in that the Court invalidated legislative actions. Judicial review was a response to legislative abuse (as was bicameralism). Some argue that the majority should rule and the courts are counter-majoritarian. While this is true, there are other examples of counter-majoritarianism: the filibuster, equal voting power for the States in the Senante, and one state/one vote when presidential elections are thrown to the House to name a few. Judicial review plays an important part in our system of government by preventing abuses by those we elect.


January 30, 2007 Posted by | Constitutional Law | Leave a comment

Constitutional Law: Implied and Inherent Powers

Our next topic was inherent and implied powers. “Implied” powers are linked to the textually assigned powers and serve as means to the ends spelled out in the text. The text doesn’t specifically grant the power, but the text does suggest it. “Inherent” powers don’t depend on the existence of any textual assignment. As an example, we can use a contemporary problem and ask how the government has power to control immigration. An implied power could be taken from the sovereignty given the government. You could use a natural reason argument to ask what is a nation if it’s not sovereign and doesn’t have the power to control its area and borders? If a nation is sovereign, it controls entry. This is an argument that shows the power to control immigration is inherent in the Constitution. An implied argument would be that Congress has the power to provide for the common defense and you can’t do that if your enemies can enter at will. Or you could say that Article I section 9 says that Congress can’t restrict migration or importation until 1808, showing that Congress would have the power after 1808. These arguments imply that Congress does have the power by pointing to places in the text that supports the argument. With any power not expressly enumerated, you can have both implied and inherent powers so it’s sometimes hard to classify a power as solely implied or inherent.  


January 16, 2007 Posted by | Constitutional Law | 1 Comment

Constitutional Law: Methods of Interpretation

I haven’t posted much on constitutional law because it’s a pretty convoluted subject and we’re using a pretty convoluted book. (I recommend the constitutional law outline in the Emanuel series. It helps a lot). After talking about McCulloch regarding the enumerated powers, we talked about methods of interpretation. These methods blend together too; it’s not always clear when one interpretation is strictly one method or another. We’ve talked about six methods: textual, structural, prudential, historical, precedential, and national ethos.

The buzz words of textual interpretation are “plain meaning.” This is where you look up the words in the dictionary, use contemporary sources, and look at the location of the words in the text (like when Marshall said the Necessary and Proper Clause was in the section granting powers to Congress and not the section which limits Congress).

With structural interpretation, you can make inferences from the structure and relationships set up by the Constitution. An example is the division of powers within the branches of the federal government and between the government and the states.

In prudential interpretations, you ask what the consequences of the decision are and what the consequences of who decides are (this means you ask who’s best suited to decide; it may be the legislature or it may be the judiciary).

The historical method of interpretation is often paired with Originalism (it ties both textual and historical interpretation together). You look at the purposes for various clauses in the Constitution and uses sources to get into the “brain of Madison” as some say, meaning you try to ascertain the Framers’ intent.

We didn’t spend much time on the last two. Precedent is self-explanatory and we glossed over national ethos. (I’ll try to edit this and include more on it when I learn it on my own).

January 16, 2007 Posted by | Constitutional Law | Leave a comment

Constitutional Law: Congressional Power Beyond the Enumerated Powers

We’ve started Constitutional law by reading McCulloch v. Maryland. Essentially, Congress chartered a bank and Maryland passed a law taxing banks which weren’t chartered by the state legislature (the National Bank). The local cashier refused to pay so Maryland sued. The case was taken up by the Supreme Court, and the first issue (which is the only one we’ll deal with now) Justice Marshall took up was whether Congress had the power to incorporate a bank. Marshall held that the government is supreme in its sphere of action. That sphere is limited by the enumerated powers granted to Congress by the Constitution. One of the arguments against Congress having the authority was the “Necessary and Proper” clause (Art. 1, Sec. 8, Clause 18). The bank’s opponents said that the bank wasn’t necessary (meaning absolute necessity) to laying taxes, borrowing money, and providing for an army. The bank’s supporters argued for a more liberal interpretation of “necessary” and said that absolute necessity would unreasonably constrict the government’s ability to engage in its authorized powers. This is the line that Marshall took. He said that the normal use of “necessary” is that a means is calculated to reach an end, and as long as that end is one of the enumerated powers, the means is allowed (as long as it’s plainly adapted to meet the end). This is the two-step McCulloch test for determining if the government has the power to do something.

January 9, 2007 Posted by | Constitutional Law | Leave a comment