CONSTITUTIONAL LAW
Fall 2006, W.B. Fisch

Assignment #1

• Constitutional law is *mostly* about limitations on governmental power

• the federal constitution limits government (federal or state) in two ways:
• allocates decision-making authority among different agencies
• among the three branches of the federal government itself
• between the federal government and the states
• limits the power of all agencies to interfere with individual liberty
• the first issue of legitimacy is: who decides whether an agency has exceeded the limits?
• should each agency be relied on to decide for itself?
• if one agency is to review others, which one is appropriate to do so?
• Two mechanisms of the Virginia Plan rejected at the 1787 Convention:
• constitutional review of state laws by Congress
• supremacy clause, Art. VI par. 2, instead -- what does it do?
• veto over congressional acts by a Council of Revision in which the judiciary is represented
• veto could be on nonconstitutional grounds
• but the judges would provide "consistency, conciseness, perspecuity and technical propriety" (Madison)!
• presidential veto instead, Art. I s. 7 par. 2 -- why was it better?
• Marbury v. Madison, p. 25
• facts -- what is the dispute about, and how did it get to the Supreme Court?
• preliminary issues
• should Marshal have withdrawn from the case?
• should Marbury have moved for a default judgment against Madison?
• the decision itself
• form:one opinion for the court -- was that remarkable for the time?
• merits
• was the constitutional ruling necessary? (did the statute authorize the writ in original jur.?) -- set forth at bottom of p. 29
• was the constitutional issue, once reached, correctly decided?
• textual interpretation: does Art. III §2 par. 2 preclude the writ?
• judicial review: does the Court have power to invalidate the statute?
• text? (Art. III s. 2 cl. 1; Art. VI par. 2)
• Framers' intent? See debate on Virginia Plan, pp. 24-25
• inherent in judicial function (Marshall's argument)?
• policy? Why is judicial review problematical?
• equality of branches (Gibson)
• primacy of elected branches in democracy
• is there a difference between “defensive” jud. rev. (to protect the judicial branch’s constitutional powers and prerogatives) and “offensive” jud. rev. (to regulate conduct of Pres. or Cong. where it doesn’t affect courts)?
• On the policy question, compare Gibson, Lincoln, and Cooper v. Aaron (nn. 1-3 pp. 33-6)
• is Lincoln's view consistent with Marbury? cf. Jefferson's pardon, after becoming President, of those convicted under the Alien and Sedition Acts
• Does Cooper's characterization of the Court's role really follow from Marbury?