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Author: Damien Falgoust

School: University of Texas

Course: Constitutional Law

Year: Spring 1997

Professor: Prof. Lino Graglia

Book: Graglia Docs 1997

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Damien Falgoust

University of Texas School of Law

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Prof. Lino Graglia – Spring 1997

  1. General Principles for Constitutional Law

    1. Key Provisions of the Constitution

      1. Article 1, Sec. 8 – Powers Reserved to Congress (includes taxing (cl.1) and commerce (cl.3) power

      2. Article 1, Sec. 9 – Limits on U.S. Congress

      3. Article 1, Sec. 10 – Limits on State Legislatures

      4. Article 3, Sec. 2 – Extent of Judicial Power

      5. Article 5 – Amending the Constitution (2/3 of both houses or petition of 2/3 of the states; ratification requires ¾ approval by the states

      6. The 14th amendment (due process for the states)

    2. Definitions of Types of Governments

      1. Government – Why a government?

        1. Division of Labor – in an anarchy, everyone has to do everything for themselves

        2. Control of the “animalistic” nature of people – protecting property rights, contract rights, etc. (prevent free riding)

        3. “Prisoner’s Dilemma” – if everyone acts solely for their own gratification, the effect is ultimately detrimental to all.

      2. Democracy

        1. Basically, rule of the people; in the U.S., representative democracy (meaning elected representatives vote instead of the people voting directly). [Basic Civics]

        2. Graglia is heavily in favor of democracy, even to the exclusion of individual rights – that is, one of his biggest beefs is the court denying the will of the people.

          1. Thus, the courts propagate a liberal agenda never approved by the people via judicial activism under the guise of finding a law unconstitutional (even if it isn’t).

          2. Graglia has less of a problem with a court ignoring the unconstitutionality of a law, since at least then the will of the people is being done.

      3. Federalism

        1. Basically, a government of divided power, with local control predominating; basically the federal government is only supposed to legislate in certain well-defined areas, leaving the rest to the states

          1. The idea is the federal government only operates where it has to, as in trade and defense, taking advantage of economies of scale.

        2. Federalism as Fiction

          1. Graglia believes that federalism, while looking good on paper, is fundamentally unworkable. “Everyone loves federalism except when it gets in the way.”

          2. The basic problem is that one side or the other (federal v. state) has to control certain key things, like commerce.

          3. That power over time inevitably develops into all power, since everything has some kind of impact on it.

        3. Separation of Powers

          1. Graglia: it really just slows down policymaking

      4. Constitutionalism (Why a Constitutional Government?)

        1. Why permit control of government by the dead? Why would people in a democracy set up a government that limits their own power?

          1. Passion vs. Calm

            1. Hamilton argues in the Federalist Papers that a constitution would ensure protection from “passing passions.”

            2. Jefferson criticized the idea of “the living being ruled by the dead.”

            3. The real problem: How to know if you’re in a time of calm? (What if the founders weren’t? The constitution was written after a revolution, after all.)

              1. Graglia: it is a paradox to have the majority abdicate control to a prior majority – all rules come from the majority, so what can rule them?

          2. Better reasons for constitution (for limiting later majorities)

            1. Structural defects in society

              1. Facilitates transactions (by preventing monopolies and other restraints on trade)

              2. Partially checks special interests:

                1. Term Limits – local folks like their rep because he brings home pork; but pork isn’t good for the rest of the country

              3. Acts as a moral exhortation for guidance in the passage of laws

        2. The passage of the Constitution

          1. Principle reasons for the constitution: remove restraints on trade, regulate foreign trade, and provide for foreign defense

          2. Graglia: it had nothing to do with rights

            1. The only “right” in the Constitution itself is the right for bankers to collect their debts (since states can’t cancel them)

          3. Patrick Henry (anti-federalist) predicted commerce power would become all power.

          4. Madison was sneaky – he bent to the anti-federalists desire for a Bill of Rights, then wrote them all himself.

    3. The Study of Law (Justice Holmes)

      1. Study of Law = Prediction of what a court will do.

      2. Legal right/duty cannot be defined independent of its consequences. (Consequences create the right/duty)

        1. Law is coercion, not morality

      3. Distinguish between ethics and the law – should look at the law through the eyes of a “bad” man, because he doesn’t care for ethical norms but cares very much how an adverse judgment will affect him.

        1. Thus, for instance, breach of contract isn’t “wrong,” it’s just a choice – the result of a breach is the law

    4. Judicial Activism

      1. Briefly, Graglia hates it. It defeats the ideal of a democracy.

      2. It’s really popular in liberal academia, though – since most activism tends to be liberal, most academics like the idea of the court slapping down “bad” lawmakers.

      3. Bork: Should use framers intent, since the force of the Constitution is derived from the original ratification.

        1. Activism reduces democracy

        2. Natural law is stupid (you can defend anything)

        3. Activism is around because without it there wouldn’t be much for the court to do (God forbid it leave policymaking decisions to the “great unwashed”)

      4. Brennan: Using framer’s intent is arrogant

        1. We can’t know framer’s intent (Whose intent? The writers, the congressional disputants, or the ratifiers? No one agreed!)

        2. To restrict it to 1789 values would ignore all social progress.

        3. “Majoritarianism” = tyranny of majority over minority

      5. Graglia: Framer’s intent rules!

        1. Using framers intent is only to say that judges should apply, and not make the law.

        2. At issue is who should set U.S. policy: the court or the people.

          1. Brennan is the “most important government official” (since he’s dictated so much of U.S. policy) (Lino at his sarcastic best)

        3. Constitutional law has nothing to do with the Constitution (at least thanks to guys like Brennan)

        4. Brennan’s objections could be make regarding interpretation of almost any law.

        5. Brennan (and his elitist colleagues) just don’t want the people to have the last word.

        6. Best defense to Brennan’s parade of horribles is the good sense of the American people. (Framer’s intent is an impediment to social progress only if progress = enactment of Brennan’s view)

  2. Judicial Review

    1. General Notes on Judicial Review

      1. Nothing in the constitution expressly spells out the power of judicial review.

      2. National Supremacy – Article 6, Section 2 makes the federal government superior to the states (judicial review stems partially from this)

      3. “This Constitution and the laws of the United States which shall made in pursuance thereof…shall be the supreme law of the land; and the judges of every state shall be bound thereby.”

      4. History – The Federalist #78

        1. Hamilton argues for judicial review in the Federalist #78

          1. This, at least, is a reason for its presumed validity, since one of the framers recognized it as a power.

          2. Federalist #78 was written in response to anti-federalist article stating fears of an all-powerful judiciary

        2. Hamilton contends that the judiciary is the weakest of the three branches

          1. Legislative controls the purse

            1. Graglia: what of KC judge ordering school districts to build?

          2. Executive controls sword

            1. Graglia: but all who hold the sword have obeyed the court! (Jackson, Lincoln, FDR all threatened not to, but did anyway)

    2. Marbury v. Madison and the establishment of judicial review

      1. The Facts

        1. Adams (a federalist) was the 2nd President; Jefferson (an anti-federalist) won the next election. Anti-federalists also take control of Congress.

        2. In a flurry to retain power in at least one branch, the Federalists pass the Circuit Court Act of 1801

          1. Prior act, the Judiciary Act of 1789, created the federal lower court system

            1. It divided the country into 3 circuits, with 2 justices per circuit (6 total Supreme Court justices at the time); it also created circuit courts, composed of one Supreme Court justice and two district court justices

          2. 1801 act doubled the number of circuit judges, and reduces the size of the Supreme Court by one (taking away a Jefferson appointment)

        3. Marshall is made Chief Justice

        4. Federalists also pass the Justice of the Peace Act, which creates 42 J.P’s in D.C.

        5. Several of the commissions did not get delivered before Jefferson took office (they were sealed but not delivered). Marbury is one of the appointees; he sues for delivery of his commission (e.g., he sues for mandamus)

        6. Side note: Anti-federalists delayed hearing on this for 14 months via the Repealer Act.

      2. The Opinion (note Marshall works in reverse order, addressing the court’s jurisdiction last (normally a court’s first concern) – Marshall, a Federalist, wants to slam on the anti-federalists for screwing Marbury)

        1. Does Marbury have a right to the commission?

          1. Marshall is “decidedly” of the opinion that he does have such a right.

            1. “The law had run out” – strictly speaking, there was no law regarding when the state should protect an individual’s right to a job; if common law rules applied, the transfer isn’t complete until delivered.

              1. If its not based in law, it’s just his subjective opinion.

            2. Graglia: what the hell is a right, anyway?

              1. “Natural Rights” = making “oughts” into “ifs” (Natural rights means you prescribe rather than describe)

              2. No rights exist outside of law – law is a description (describes how a court will rule)

            3. Note Marshall could’ve gotten out of this easily by just saying the commission wasn’t complete until delivered (he doesn’t, since this would be to say Jefferson had the right to revoke).

        2. If so, do the laws give Marbury a remedy?

          1. Marshall says yes (he makes a distinction between political – which confer no remedy – and legal questions, but says this question is legal in nature)

          2. Note the circular nature of the argument – a right is created by the remedy (that is, if there is no remedy then there is no right)

            1. In other words, if the court cannot give Marbury relief, does he really have a right?

          3. Also note that the proper remedy would be back pay, not injunction instating Marbury into office.

        3. If so, does the court have jurisdiction to issue such a remedy?

          1. Marshall says that while the Judiciary Act grants the court original jurisdiction to issue a writ of mandamus, the Constitution does not.

            1. Compare the two provisions

              1. Constitution: original jurisdiction as to X, appellate as to all else

              2. Judiciary Act: original jurisdiction as to Y (including mandamus)

          2. Criticism:

            1. Constitution lists a minimum. The constitution does not say original as to only X, just that it has jurisdiction over X (no negative words implying X is the only thing it can have jurisdiction over) (VanAlstyne)

              1. Does that mean that Congress can’t add to the Court’s original jurisdiction? Or only that it can’t reduce it (i.e., it can’t take away X)? Pure logic says the latter.

            2. Bad Logic

              1. Marshall: affirmative words can imply negative things

              2. Graglia: This is bad logic

                1. Ex: If a lease says “you may have a cat,” pure logic does not bar you from also having a dog,

                  1. However, you can make a case to the contrary – common parlance would prevent a dog.

            3. Constitution’s Authors are now in Congress – why would they pass a law which is not constitutional (how can their interpretation of Article III be wrong?)

            4. Surplusage Ain’t So Bad – even if all this means the clause in Article III is surplusage, that’s not so bad – surplusage can be useful (helps drive home a point)

            5. Note that Marshall actually weakens the court by saying that Congress can’t add to their power, but can subtract from it under the “such exceptions…as Congress shall make” clause.

        4. Establishment of Judicial Review

          1. Constitution vs. Laws

            1. The constitution is the people’s original will

            2. A law that contradicts the constitution is invalid because otherwise, what’s the point of a binding written Constitution?

              1. Graglia: couldn’t the point be to act as a caution to the legislature? As it stands, Congress can just enact what it wants and let the judiciary sort it out; might the absence of judicial review produce a more cautious Congress? (VanAlstyne) (ed. note: I don’t think so!)

              2. Is this necessarily so? In the U.K. (and in most other democracies) there is no judicial review and the latest act of the legislature is considered valid law regardless of how it comports with any previous document.

              3. Why is the Constitution superior? (Marshall just says it is since those who write them contemplate them being the “fundamental and paramount law of the nation;” for better arguments, see below)

            3. The Supremacy Clause means the Constitution is superior (strongest textual argument).

              1. The Supremacy Clause (while showing the constitution is real law and not just moral exhortation) could only mean that federal law is superior to state law.

              2. “In pursuance of”

                1. Could mean that court can only review procedural constitutionality of a law (were the appropriate processes done in enacting the law?)

                2. Could mean that the legislature should only make laws in pursuance of the constitution which will be supreme. (ed. note – not likely)

          2. Judicial Review (or why the courts decide)

            1. Begging the Question – Marshall asks “is an unconstitutional law valid?”

              1. Graglia: that presupposes the answer to the question “who determines constitutionality?” (it begs the question)

                1. But if the judiciary doesn’t, what of separation of powers?

            2. It is the province of the judiciary to say what the law is (to choose between conflicting laws)

              1. Graglia: that’s fine, but that doesn’t mean you have to pass on constitutional grounds – you can just pick which law is more proper.

            3. Judicial power extends to all “cases and controversies arising under the Constitution”

              1. Does this necessarily mean reviewing acts of Congress? Couldn’t it mean hearing cases on which Congress has been silent? (VanAlstyne)

              2. In other words, might it just confer the power in cases where Congress is silent for the court to recognize rights and remedies allowed under the Constitution

            4. Judges take oath to uphold the constitution

              1. Graglia: Everyone takes that oath, including the Congress and the President – it’s just a test of your political principles, nothing more.

        5. Further Considerations of Marbury v. Madison and Judicial Review

          1. There was no outcry after Marbury, so review must be OK

            1. Graglia: both sides didn’t make a fuss because they wanted it for their own purposes (Jefferson wanted the Alien & Sedition Acts overturned)

          2. Article III (“supreme judicial power”) – this means judicial review was intended in the Constitution

            1. Graglia: an OK textual argument, but is it judicial to pass on the power of a body to pass law?

          3. State courts had judicial review, so it must be OK

            1. Graglia: so what? What did the ratifiers think? Judicial review may have been OK to an extent, but what nature and scope of review is permissible? (lack of defining scope leads to activism)

          4. Of course, Hamilton wrote about it in Federalist #78 (see above)

          5. Marshall should have recused himself from hearing the case – he was Adam’s Secretary of State

          6. Eakin v. Raub (1825) – takes different opinion on review; says judiciary should only look into form of enactment; acts shouldn’t be presumed invalid (deference to legislature); oath only a test of political principles; legislature should clean up their own constitutional messes; Constitution isn’t magical, it’s a moral compass.

    3. Criticism of Judicial Review in a Democracy (McClesky article on why review isn’t democratic) [pro-review comment followed by McClesky’s response]

      1. The people eventually get their way (amendment)

        1. Democracy means control right now

          1. But might the delay be of benefit (“sober decisions”)?

            1. Maybe, but how ‘drunk’ should the people be before the court steps in?

            2. Also, the idea that people need to be protected from themselves is a classic anti-democratic argument

      2. Judges take longer view of things, while Congress just appeases the here-and-now

        1. What of great leaders? Doesn’t review hamstring them?

        2. Also, why are judges so much better equipped to take a long-term view? Most come from political (not judicial) backgrounds.

      3. Other policymakers are appointed (the military, the Fed, the ICC)

        1. Military is directly controlled by popular representatives; the Fed and ICC have also been criticized for their lack of popular control

        2. Even the Fed and ICC are indirectly controlled, since Congress sets their scope, power, and budget

      4. Review has been accepted historically

        1. That doesn’t mean it’s undemocratic, only that we adhere to constitutional principles (even undemocratic ones)

      5. Control exists by…

        1. Amendment

          1. Too difficult, too time-consuming

            1. But is it? 11th amendment overturned decision saying you can sue a state, 13th overturned Dred Scott, 16th overturned decision saying income tax wasn’t constitutional, and 26th overturned decision saying Congress couldn’t set voting age for state elections

          2. Court could interpret amendment away

            1. Graglia: not likely, since the amendment would be staring them in the face

        2. Impeachment

          1. Impractical (too hard to get Congress to impeach)

        3. Manipulation of personnel by Congress

          1. Tough to guess how justices will vote – e.g., Nixon’s appointees turned out to be raving liberals; also, see McCardle below

        4. Congressional control of jurisdiction and lower courts

          1. Impractical, messes up judicial process

        5. Graglia also notes that the court is not proactive (no advisory opinions); they cannot make law without a case of some kind; however, this isn’t really a limit since Graglia’s ACLU buddies always have a case waiting.

    4. Further Development of Judicial Review

      1. Ex Parte McCardle (1868) – Congress takes power to hear a certain type of appeal away; before act passed, McCardle had appealed; Court nevertheless does not hear his appeal, claiming no jurisdiction

        1. Represents Congress effectively controlling the court

        2. Why doesn’t Congress do this more?

          1. Court would still get to decide the constitutionality of the act reducing their jurisdiction

          2. Might be “locking the barn door after the horses are out,” since lower courts (either federal district or state) will hear the case and will presumably decide by Supreme Court precedent

          3. Con Law professors would bitch to Congress

      2. Michingan v. Long (1983) – State court decision on search was unclear if it relied on state or federal constitution; the court hears the case

        1. Doctrine of adequate and independent state grounds – The Supreme Court can only hear a state case to the extent it involves correcting application of federal law; if the case was decided on adequate & independent state grounds, court will deny review since it wouldn’t affect the outcome (and would thus be an impermissible advisory opinion)

        2. Graglia: Michigan court was just trying to make the decision stronger while also putting it out of reach – the decision means that a state has to tread very lightly when using federal law as part of its decisions.

        3. Michigan means that:

          1. If the state court uses federal law persuasively (that is, it’s not relying on it, but is relying on state law) it should state in clear terms that it has adequate & independent state grounds for its decision (the grounds must be substantive and not just a throwaway phrase)

          2. Without such clear terms, the Court will have jurisdiction (terms must be enough to support the decision on their own)

          3. Michigan is a change because of the clear terms requirement – the Michigan court essentially put in a line saying “hey, by the way this doesn’t fit with the state constitution, either” in order put it out of the Court’s reach.

  3. Superiority of National Government (Federalism)

    1. Background on McCulloch

      1. Both Hamilton and Madison were in favor of a strong national government; they felt the bank would enhance national power.

      2. Jefferson and Hamilton square off over the bank…

        1. Jefferson (anti-bank) – when we passed the Constitution, we specifically didn’t give the federal government the power to charter a corporation because we didn’t want a bank.

          1. Also, “general welfare” is only part of taxing/spending power – a bank doesn’t sound like spending money for general welfare.

        2. Hamilton (pro-bank) – legislative history is hearsay; the law is what was actually passed.

      3. Side note – McCulloch was a bank teller; he’s suing because he has standing

      4. Graglia: this case signals the end of federalism

    2. McCulloch v. Maryland (1819)

      1. Can the federal government charter a national bank?

        1. Maryland’s argument (anti-bank)

          1. Syllogism:

            1. Congressional power is limited (enumerated)

              1. 10th amendment limits power (“power not delegated to US…[is] reserved to the states”) by negative implication

                1. Marshall: 10th was just to quiet “excessive jealousies” – it doesn’t actually do anything (thought Marshall agrees that powers are limited)

            2. The power to charter a bank is not an enumerated power

              1. Marshall: power is implied – government must have the means to execute its enumerated powers (see below)

            3. Therefore, the bank is unconstitutional

          2. Response to Necessary & Proper Argument

            1. “Necessary” does not mean “convenient” – just because a bank may be convenient does not mean it’s necessary, e.g., essential

        2. McCulloch (Marshall) argument (pro-bank)

          1. Textual Arguments

            1. 10th amendment – does not say “powers not expressly delegated” – therefore it implies the existence of implied powers (these were the terms in the Articles of Confederation, which further shows the framers didn’t want to shackle the feds)

              1. Graglia: weak, because you can always qualify statements with more language to strengthen it.

              2. Hamilton edited out “expressly,” much to Henry’s horror.

              3. What’s the point of enumerating power if they have all power by implication?

            2. Article 1, Sec. 10 uses “absolutely necessary” in state limitations – wouldn’t they use the same language if they wanted to completely bar certain federal actions, e.g., eliminate the notion of implied power?

            3. Textual Placement – The necessary and proper clause (Congress can do whatever is necessary and proper to carry out its enumerated powers) is found within the section of the Constitution enumerating powers, not setting limits

            4. “Proper” is not needed to modify “necessary” if necessary is read in its narrowest sense (e.g., absolutely necessary)

              1. Graglia: shouldn’t the addition of ‘proper’ then narrow the definition of necessary?

              2. Also, can’t something be necessary but improper?

            5. Don’t need prohibitions if power is drawn so narrowly that there can’t be any deviation; therefore, powers must be construed broadly because of the existence of prohibitions

              1. Graglia: dangerous, because if the prohibition isn’t complete, then everything else is an implied power

          2. Structural Argument

            1. The Constitution is a broad outline not intended to be read as a detailed list of every government power

              1. Graglia: there are some pretty specific things in Art. 8, and there is often overlap between the broad and specific – e.g., Congress can declare war and raise armies and grant letters of Marque. If the Constitution is so broad, wouldn’t those specifics be included in the broad grant?

          3. Policy Argument

            1. Shouldn’t choose a construction that is inconvenient; should choose one that facilitates government operation.

              1. Graglia: Why? Isn’t the whole point of federalism to restrict the federal government?

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