Marbury v. Madison, 5 U.S. 137, p.2
1st. Has the applicant a right to the commission he demands?
2dly. If he has a right, and that right has been violated, do the laws of his country afford him a remedy?
3dly. If they do afford him a remedy, is it a mandamus issuing from this court?
- When a commission has been signed by the president, the appointment is made ; the applicant has a right to the commission
- To withhold Marbury’s commission, violative of a vested legal right
- “Where there is a legal right, there is also a legal remedy by suit, or action at law, whenever that right is invaded”
- 1st – the nature of the writ ; 2nd – the power of this court
- The nature of the writ – directed to an officer of government … to do a particular thing therein specified
- To enable this court to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to necessary to enable to them to exercise appellate jurisdiction
o here, to issue such a writ to an officer for the delivery if a paper, is in effect the same as to sustain an original action for that paper, therefore, not belong to appellate, but to original jurisdiction
- whether an act, repugnant to the constitution, can become the law of the land
o an act of the legislature, repugnant to the constitution, is void
o while statute represent indirect people’s will (Congress), Constitution represent direct people’s will, thus, judicial review of statute (Congressional power) is not unconstitutional
o it is the duty of the judicial department to say what the law is
how Marshall could avoid holding unconstitutionality
- i), recusal – Marshall was Secretary of State before sworn in as Supreme Court Justice
- ii) lump it as political question
- iii) deny power to strike down the statue
- iv) statutory language could have been interpreted as constitutional ; one principle – avoid holding unconstitutionality if you can ; why? Among others, a), inherent in judicial body, if you can avoid, then, avoid, b) counter-majoritarian difficulty
o Marshall interpreted Art.3.Sec.2.cl.2 as exhaustive list of categories of possible Supreme Court original jurisdiction ; might have interpreted as illustrative
- However, why Marchall did not take one easy way out, instead hold unconstitutional ?
<Counter-majoritarian difficulty>
Sec. 2 supreme court authority to review state court judgment (p.15)
- Marbury established Supreme Court review of the constitutionality of actions of a federal government
- Martin v. Hunter's Lessee, 14 U.S. 304, - supreme court’s authority to review judgments of state court
Martin v. Hunter's Lessee, 14 U.S. 304, p.16
- Involved a controversy over Sec.25 of the Judiciary Act of 1789, which provided for Supreme Court review of final decisions of the highest state court rejecting claims based on federal law – including federal constitutional law
- VA court – issued a decision, the appellate power of the Supreme Court of the United States does not extend to this court, under a sound construction of the constitution of the United States, and that s.25 was therefore unconstitutional
Held
<The people of the United States had a right (i) to prohibit to the state the exercise of any powers which were in their judgment incompatible with the objects of the U.S. Constitution and (ii) to make powers of state government subordinate to those of the nation or (iii) to reserve to themselves sovereign authority which they might not choose to delegate to either
- ß The Constitution of the United States was established not by the states in their sovereign capacities, but by the people of the United States
- ß The Constitution of the United States was not carved out of existing state sovereignties, and did not constitute a surrender of powers already existing in state institutions
- The 10th Amend. - The government of the United States can claim no powers which are not granted to it by the Constitution
Art. 3 Sec. 1 - The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
- “shall be” – is mandatory ; its obligatory force is so imperative
Art. 3 Sec. 2 - The judicial Power shall extend to all Cases, …; to Controversies … ; appellate jurisdiction
- “shall extend” – also mandatory and imperative ;
- appellate jurisdiction is given by the constitution to the supreme court in all cases where it has not original jurisdiction ; subject to such exceptions and regulations as congress may prescribe
Art. 6 Clause 2 - This Constitution, and the Laws of the United States …, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, …
- Framers did contemplate cases within the judicial cognizance of the United States might/would arise in state courts considering supremacy clause
- such cases were to be decided according to the constitution, laws and treaties of United States – “supreme law of the land” (Art.6.cl.2)
- judicial power of the United States extends to such cases (= cases within the scope of the judicial power of the United States) by constitution
- thus, appellate power of the United States extend to state court
- the US constitution was designed for the common and equal benefit of all the people of the United States : Cf. power to remove suit from state court to national court
- necessity of uniformity of decisions throughout the whole United States, upon all subjects within the purview of the constitution
conclusion
- sec 25 of the Judiciary Act, which authorizes the exercise of this jurisdiction in the specified cases, by a writ of error, is constitutional
Cohens v. Virginia, 19 U.S. 264
- state argued the grant of original jurisdiction to the Supreme Court of cases “in which a state shall be a party” precluded, by negative implication, the exercise of appellate jurisdiction in such cases
- Held – “the judicial power extends to all cases arising under the constitution or a law of the United States, whoever may be the parties” ; Marshall’s doubt about the capacity of state judge to interpret and enforce federal law
Cooper v. Aaron, 358 U.S. 1, p.19
- a claim by the Governor and Legislature of a State (AK) that there is no duty on state officials to obey federal court orders resting on this Court’s considered interpretation of the Constitution
Held
- Art.6.Sec.2 – Constitution is “supreme Law of the Land”
- Marbury – “it is … duty of the judicial department to say what the law is”
- it follows that the interpretation … (of constitution) … by this Court in the Brown is the supreme law of the land
- federal Supreme Court’s decision … binds upon governor and legislature of state
Dickerson v. United States, 530 U.S. 428,
- In Miranda v. Arizona,, we held that certain warnings must be given before a suspect's statement made during custodial interrogation could be admitted in evidence. In the wake of that decision, Congress enacted 18 U.S.C. § 3501, which in essence laid down a rule that the admissibility of such statements should turn only on whether or not they were voluntarily made.
- We hold that Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress
- Congress may not legislatively supersede our decisions interpreting and applying the Constitution
Dissent
- By disregarding congressional action that concededly does not violate the Constitution, the Court flagrantly offends fundamental principles of separation of powers, and arrogates to itself prerogatives reserved to the representatives of the people
Note p.25
- Can judicial enforcement of the Constitution be reconciled with democracy by conceiving judges as enforcing rather than thwarting the people’s will ?
Political restraints on the supreme court p.27
- Nomination of Justices – Art.2.Sec.2.cl.2. – advice and consent of the Senate
- Impeachment – Art.2.Sec.4 .
- The Court upheld one such selective withdrawal of jurisdiction
Ex parte McCardle, 74 U.S. 506 <Exceptions Clause>
- the appellate jurisdiction of this court is not derived from acts of Congress. It is conferred by the Constitution. But it is conferred "with such exceptions and under such regulations as Congress shall make."
- The Supreme Court may not inquire into motives of Congress but can only examine into its power under the Constitution **
o Here, Congress openly intended to deprive McCardle of the right to appeal
- An appeal in a habeas corpus case, taken under the act of February 5, 1867, was dismissed for want of jurisdiction, upon the passage of the act of March 27, 1868, repealing the provision of law under which it was taken, although it had been argued
checks and balance
- i) court à elected power (Congress) : judicial review
- ii) elected power (President) à. Court : appoint judge (it alone is not enough)
- iii) congress à. Court : impeach judge + Exception Clause
congress has broad power under Exception Clause
- Constitution gave great latitude to Congress in organizing (formality) and Exception Clause (substance)
- (1) does this Exception Clause have any limit? (2) why Congress not invoke so often the Exception Clause (allow Exception Clause to be dormant)?
Plaut v. Spendthrift Farm, inc. 514 US 211 (1995)
- Does it impose limit on Exception Clause ?
- Fact : After the US Supreme Court handed down final decision on statute of limitation, Congress prolonged the prior time period ; those who lost the case reinstated pursuant to the new statute ;
- Holding : the new statute unconstitutional, by retroactively commanding federal courts to reopen final judgments (once final judgment, Congress run out of time, can’t take away jurisdiction) ;; violated the fundamental principle that a judgment conclusively resolves the case, violated the separation of powers principle
- It is not about controlling appellate power (McCardle is about controlling appellate power)
U.S. v. Klein, 80 U.S. 128 (1872)
- Fact : President pardoned and Congress reversed it
- Holding: The President's power of pardon is not subject to legislation (Congress) ; Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders
Is it limitation on the Exception Clause?
- (i) prescribe verdict, substantive law making – nothing wrong with Congress’s substantive law making ; problem is that Congress usually does not do it ,
- (ii) no alteration of final judgment (in Plaut, alteration of final judgment) ; in McCardle, it was jurisdictional control, here, it is not ; here, it is not about controlling appellate power (McCardle is about controlling appellate power)
- (iii) unlawful to alterate presidential power
- (iv) unlawful to use Exception Clause to violate law
What might be other argument which can be made here where Exception Clause is limited
- (i) due process – blocking appeal in criminal proceeding is against due process (= foreclosing path appellate from lower to appellate)
- (ii) appellate jurisdiction, Congress can control, but can’t Gerrymandering
Congress allow Exceptions Clause to be dormant, why? E.g. Congress does not block court to rule on abortion
- (i) political inertia – difficulty in passing such law, more important agendas on table
- (ii) unnecessary – should save it for more important issue ; standing threat to S. court
- (ii) court also benefit from the abstention – shield of legitimacy ; Congress can invalidate court decision
Sec. 4 constitutional and prudential limits on constitutional adjudication : the “case or controversy” requirements (p.30)
In terms of checks and balance
- Judicial self-restraint (internal checks and balance) is stronger than external checks and balance is
- Justiciability (Judicial self-restraint) : Art.3.sec.2.cl.1 - “judicial power shall extend to a list of … cases and controversy … “
- Three issues regarding judicial self-restraint (i) prohibition of advisory opinion, (ii) standing, (iii) mootness, ripeness ; Cf. McCardle, court itself must assess its jurisdiction
Advisory opinion
- An issue of art. 3 “cases and controversies”
- Advantage : (i) efficiency, (DO- head off constitutional issues before it become urgent issue)
- Disadvantage : (i) the court does not want to be speculative (speculate fact), it is likely to be over-broad decision ; (ii) if over-broad decision, it is likely to be against separation of power, by usurping Congressional power ; (iii) prudential justification – judicial practicability, not mandated by constitutional law
mootness and ripeness (both of them are timing doctrine) p.47
-
-
Standing
Constitutional requirements for standing
- 1. Injury : actual, personal
- 2. Causation : fairly traceable
- 3. Redressable : 2 and 3 usually go along with each other
- Congress cannot mandate the court to hear the case
Prudential standard (limitation) note 4, p.43
- 1. Prohibition of third party standing : e.g. associational standing – a member of association
- 2. Prohibition of Generalized Grievances : e.g., a whole population is affected ; the limitation comes from separation of power, it is likely policy decision, Congress is better equipped to deal with it ; problem - nobody has standing before court, like in Lujan, who can challenge the regulation?
- 3. Zone of Interest Test
- Prevent the court from being seen as a juridical intervention ; rather, seen as wisdom of judiciary, if rejecting a case for prudential limitation
- Congress can or may mandate the court to hear the case
Standing can expand the role of judiciary
- The court can (choose to) avoid a matter (use less institutional matter) and thereby reject political matter, result in an intended consequence by avoiding a matter ;
-
Deference to Congress
- “procedural injury” ; limitation on procedural injury - Congress cannot create cause of action where no standing
Lujan v. Defenders of Wildlife, 504 U.S. 555, <standing>, p.32
- Environmental groups brought action challenging regulation of the Secretary of the Interior which required other agencies to confer with him under the Endangered Species Act only with respect to federally funded projects in the United States and on the high seas, (not in foreign countries)
- Held - (1) plaintiffs did not assert sufficiently imminent injury to have standing, and (2) plaintiffs' claimed injury was not redressable
Held
- Party invoking federal jurisdiction bears the burden of establishing elements of standing
- core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III
- Irreducible constitutional minimum of standing requires (1) that plaintiff have suffered an injury in fact, which is an invasion of a legally protected interest which is concrete and particularized and actual or imminent (rather than conjectural or hypothetical); (2) that there be a causal connection between the injury and conduct complained of so that the injury is fairly traceable to the challenged action of the D and not the result of the independent action of some third party who is not before the court; and (3) that it be likely, as opposed to merely speculative, that injury will be redressed by a favorable decision
- In order for injury to be “particularized,” it must affect the plaintiff in a personal and individual way
- When plaintiff's asserted injury arises from the government's allegedly unlawful regulation or lack of regulation of someone else,,, causation and redressability required for standing hinge on response of the regulated or regulable third party to the government action or inaction and on the response of others as well (DO- here, causation and redressability was denied)
- Desire to use or observe animal species, even for purely aesthetic purposes, is a cognizable interest for standing purposes (Cf. an invasion of a legally protected interest) (DO- here, interest is upheld)
- Affidavits in which members of organizations stated that they had previously traveled to places in the world where projects being funded by the Agency for International Development (AID) were taking place and that they hoped to be able to return and observe endangered species in those locations,, did not show that damage to species from the projects would produce imminent injury to them, and organizations thus did not have standing to challenge regulation of the Secretary of the Interior requiring that other agencies consult under the Endangered Species Act only with respect to actions in the United States or on the high seas (DO- here, injury denied)
- Imminence of injury is demanded for standing even when the alleged harm does not depend upon affirmative actions of third parties which are beyond the plaintiff's control
- “Ecosystem nexus,” under which a person who uses any part of a continuous ecosystem may be considered adversely affected by activity, does not provide basis for standing to challenge the activity
- could not obtain standing under a “animal nexus” approach, whereby anyone who has an interest in studying or seeing the endangered animals anywhere on the globe has standing, or under a “vocational nexus” approach, under which anyone with a professional interest in the animals can sue
- Harm allegedly suffered by members of environmental groups as result of federal funding of projects in other countries which might threaten endangered species could not be redressed in action against Secretary of the Interior challenging his regulation which required consultation under the Endangered Species Act by other governmental agencies only with respect to funding of projects in the United States and on the high seas, and groups thus lacked standing, as other agencies denied the authority of the Secretary to order consultation and would not be bound by an order and action to which they were not a party
- Existence of federal jurisdiction ordinarily depends upon facts as they exist when the complaint is filed, and later participation in a suit by those parties necessary for plaintiffs' injury to be redressed will not give plaintiffs standing when their injury was not redressable by any of the parties to the suit at the time that it was filed
Massachusetts v. EPA, 549 U.S. 497 , p.37
- States, local governments, and environmental organizations petitioned for review of an order of the Environmental Protection Agency (EPA) denying a petition for rulemaking to regulate greenhouse gas emissions from motor vehicles under the Clean Air Act
- Held - state of Massachusetts had standing to petition for review
Held
- To demonstrate standing, a litigant must show that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favorable decision will redress that injury
- A litigant to whom Congress has accorded a procedural right to protect his concrete interests can assert that right without meeting the normal standing requirements of redressability and immediacy; in such a case, the litigant has standing if there is some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant (DO- statutory remedy)
- On petitions for review of an order of the Environmental Protection Agency (EPA), only one of the petitioners had to have standing to permit the Supreme Court to consider the petition for review
- State of MA had standing to petition for review of order of the EPA refusing to regulate greenhouse gas emissions from motor vehicles under the Clean Air Act,,, considering that EPA's refusal to do so presented a risk of harm to MA from rise in sea levels associated with global warming that was both “actual” and “imminent,” and that there was a substantial likelihood that judicial relief requested would prompt EPA to take steps to reduce that risk
- when agency’s refusal to initiate enforcement proceeding is subject to judicial review
political question p.48
two strands of modern political question doctrine
- (1) some matters are committed to the unreviewable discretion of the political branches
- (2) some otherwise legal questions ought to be left to the other branches as a matter of prudence
Argument against political question doctrine
- either accept as being within their constitutional authority OR refuse remedies for reasons of equity
Baker v. Carr, 369 U.S. 186, p.49
- In instance of nonjusticiability, … inquiry proceeds to point of deciding whether the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded
-
- A citizen's right to vote free of arbitrary impairment by state action is a right secured by the Federal Constitution if such impairment results from dilution by a false tally, or by a refusal to count votes from arbitrarily selected precincts, or by a stuffing of the ballot box (DO- right as a corollary to the duty )
- Prominent on the surface of any case held to involve a political question is found (1) a textually demonstrable constitutional commitment of the issue to a coordinate political department; or (2) a lack of judicially discoverable and manageable standards for resolving it; or (3) the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or (4) the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or (5) an unusual need for unquestioning adherence to a political decision already made; or (6) the potentiality of embarrassment from multifarious pronouncements by various departments on one question
- The political question doctrine is based in the separation of powers
Note. P.55
Powell v. McCormack, 395 U.S. 486
- challenged the U.S. House of Representatives' refusal to allow him to take his seat in the 90th Congress by voting to expel him by a two-thirds vote after the 89th Congress
- Held justiciable the question as to qualifications, (not whether petitioner satisfies the qualification)
Goldwater v. Carter, 444 U.S. 996
- Whether the President has authority to terminate a treaty unilaterally
- the Court vacated a court of appeals ruling and remanded the case to a federal district court with directions to dismiss the complaint
- foreign affairs
concurring
- not ripe
Nixon v. United States, 506 U.S. 224, p.56
- the House impeached, a committee of Senator heard … convicted Nixon (judge) ; Nixson challenged the trial by Senate committee as unconstitutional and argued he should have been tried by the body as a whole
- Held – Nixon’s challenge as non-juticiable
- “sole” – Senate alone shall have the authority to determine whether an individual should be acquitted or convicted
- The Judiciary should not have any role in impeachment –
o (i) two separate sets of proceedings for individuals who commit impeachable offenses in Constitution ,
o (ii) inconsistent with our system of checks and balances
- The lack of finality - Will take months or years
- The difficulty of fashioning relief - re-try ?
Ch.2. the nation and the states in the federal system p.60
Whose sovereignty ?
- Where does sovereignty reside in a system of vertically divided powers? In the peoples of the individual states that ratified the constitution OR in a single national populace that ordained the framing document as “we the people of the United States”
McCulloch v. MD., 17 U.S. 316 ,
Fact
- controversy (emphasis added – case v. controversy) over MD’s asserted power to tax the Second Bank of the United States ; the Bank established branches in Baltimore ; MD legislator adopted a statue which imposed tax on any banks operating in MD “without” authority from the State” ; an action for the statutory penalty was brought ; no fact in dispute
Question
- the validity of the MD statute, on the ground of its being repugnant to Constitution and the federal statute which created the bank
two questions
- whether Congress has power to create federally chartered bank
- whether the state of MD, without violating the constitution, tax the branch of the bank in MD
<1st - whether Congress has power to create federally chartered bank >
1.. the Constitution and the powers of the federal government emanates from the people of the U.S. as a whole (not from the act of sovereign and independent states)
- the Constitution binds state sovereignties (See Martin, “the constitution of the united states was ordained and established, not by the states … but by people of the united states” ) **
2.. (nevertheless) the federal government is to be enumerated powers
- federal government can exercise only the powers granted to it
- creating bank is not among the enumerated powers under art.1.sec.8
o (the fact that there is no phrase, e.g., creating bank is not dispositive), instead,
- whether the particular power has been delegated or prohibited depends on a fair construction of the whole Constitution
o “Its nature, therefore, requires, that only its great outlines should be marked, … the minor ingredients … be deduced from the nature of the objects themselves. … In considering this question, then, we must never forget that it is a constitution we are expounding.”
§ DO- use it when not limited to the language of the Constitution, i.e., a fair construction of the whole Constitution
3.. federal government is entrusted with ample power, e.g. collect tax, regulate commerce ; must also be entrusted with ample means for their execution
- the federal government which has a right to do an act, must be allowed to select the means
- the power of creating corporation is, not the end, but a means, incidental to those powers which are expressly given
4.. the Necessary and Proper Clause Art.1.Sec.8.cl.18
- employing any means calculated to produce the end, and not as being confined to those single means, without which the end would be entirely unattainable
o here, the execution of those great powers on which the welfare of a nation essentially depends ; This could not be done, by confiding the choice of means to such narrow limits …
- two reasons against narrow interpretation, (i) the clause is placed among the powers of Congress, not among the limitations on those powers, (ii) its terms purport to enlarge, not to diminish the powers, purport to be an additional power
- “Let the end be legitimate, … be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”
o rational basis review (broad and permissive) ;
o “in inquiring whether congress had made a selection of constitutional means.. not.. whether .. better means might have been selected .. but to see whether those which have been chosen have a natural connection with any specific power … “
o In McCardle, the court does not inquire into Congressional intent ; here, did inquire into intent
- here, it is undisputed that “it is a convenient, a useful, and essential instrument in the prosecution of its fiscal operations”
o the choice of means implies a right to choose a national bank in preference to state banks
<2nd - whether the state of MD, without violating the constitution, tax the branch of the bank in MD>
1.. the paramount character of the Constitution
- the Constitution and the laws made in pursuance thereof are supreme
- the sovereignty of the state, in the article of taxation itself, is subordinate to, and may be controlled by the Constitution
- state is not allowed to exercise such power as is in its nature incompatible with, and repugnant to, the Constitution
2.. whether the power (right) of a state to tax the means employed by US government can be exercised, consistently with a fair construction of the constitution
- (i) “If the states may tax one instrument, employed by the government in the execution of its powers, they may tax any and every other instrument “ (thus, destroy regulatory agencies)
o MD countered “we will not go extreme, there is political check or restraint e.g. voters will not vote for extreme” ; the court did not buy it, “the voters can go extreme,” ; underlying theme is “we can’t allow sub-set (voters) to determine federal issue” ; far from representation-reinforcement theory
- (ii) when a state taxes the operations of the US government, it acts upon institutions created, not by their own constituents, but by people over whom they claim no control
o Taxation without representation
United States Term Limits v. Thornton, 514 U.S. 779, p.76
Prof
- (maj.) we can’t let state (part) control national legislation (whole)
- (dissent) representation reinforcement theory
DO
- Maj. v. dissent : (1) the ultimate source of constitutional authority, (2) how to make sense of 10th amendment
Summary
- The people of AK voted to amend the state constitution to impose term limits upon the individuals it elected to Congress. AK Const. amend. LXXIII limited persons seeking office in the House of Representatives to three terms and in the Senate to two terms. Respondent challenged the amendment.
- The US S. Crt held that: (1) states may not impose qualifications for offices of the U.S. representative or senator in addition to those set forth by the Constitution; (2) power to set additional qualifications was not reserved to the states by the 10th Amendment; and (3) state provision is unconstitutional when it has likely effect of handicapping a class of candidates and has the sole purpose of creating additional qualifications indirectly.
The US constitution relevant to qualifications for membership in the Congress of the US :
- the age, citizenship, and residence requirements of Art. I, sec.2, cl.2, sec. 3 and cl. 2
petitioner’s argument for AK’s amendment
- the absence of a constitutional prohibition
- Powell does not necessarily resolve the specific question : Powell does not support the conclusion that the Constitution prohibits additional qualification imposed by states
- 10th amendment and the principle of reserved powers allows state to add such qualifications
Powell v. McCormack
- Concerning the power of the House to exclude a member pursuant to Art. I, sec. 5, Congress may not later the qualifications in the Constitution
- The state-imposed restriction in the present case is contrary to the “fundamental principle of our representative democracy that the people should choose whom they please to govern them” (Powell)
The power to add qualifications for members of Congress is not within the “original powers” of the states, and, thus, not reserved to the state by 10th amendment
- The powers retained by the pre-existing sovereign state remain what they were before, after the adoption of the US constitution, except so far as they may be abridged by the US constitution ; neither necessary nor proper to define the power
- 10th amendment could only “reserve” what existed before
- The states can exercise no powers, which exclusively comes from the existence of the US government, which the constitution does not delegate to them ; no state can “reserve” what it never possessed
- In McCulloch, state’s power to tax federal instrumentality, “original right to tax such federal entities never existed, and the question whether it has been surrendered, cannot arise”
- Here, no such right as setting qualification for service in Congress existed before the US constitution was ratified ; electing representative to US legislature was a new right, arising from the US constitution itself
Even assuming original powers, the Framers intended the Constitution to be the exclusive source of qualifications for members of Congress, and that the Framers thereby “divested” states of any power to add qualifications
- US government is chosen, not by states, but by the people
- members of Congress are not merely delegates by separate states, but a component of a single US government
- allowing individual states to adopt their own qualifications for congressional service would be inconsistent with the Framer’s vision of a uniform National (US) Legislature representing the people of the US
Kennedy, concurring
- McCulloch affirmed “US government is and must be controlled by the people without collateral interference by the states”
Dissent (4)
- The ultimate source of the Constitution’s authority is the consent of the people of each individual state, not the consent of the undifferentiated people of the Nation (U.S.) as a whole
o The ratification procedure (art. VII) support this : the Constitution went into effect only “between the States so ratifying the same.”
o Madison (one of founding father) said : the popular consent upon which the Constitution’s authority rest was given by people, not as individuals composing one entire nation, but as composing independent states to which they respectively belong
- ( Because the people of the states are the only true source of power ), the federal government’s powers are limited and enumerated, with no authority beyond what the Constitution confers
o 10th amendment : where the Constitution is silent about the exercise of a particular power – where the Constitution does not speak either expressly or by necessary implication – the federal government lacks that power and the states enjoy it
o Here, nothing in the Constitution deprives the people of each state of the power to prescribe eligibility requirements for the candidates who seek to represent them in Congress
o Since the Constitution is silent about this matter, no bar to action by state, without having to pointing to any affirmative grant of power
- The notion of popular sovereignty that undergirds the Constitution does not erase state boundaries
o The Constitution simply does not recognize any mechanism for action by the undifferentiated people of the Nation
- McCulloch
o A power need not be “expressly” delegated to the U.S. or prohibited to the states in order to fall outside the 10th amendment’s reservation: delegation and prohibition can also arise by necessary implication (not necessarily “expressly”),
o For the majority, it turns on the fact that the state (MD) had possessed no power to tax the instrumentalities of the US government (Bank) before the Constitution was adopted ; (DO- the power to tax did not exist, cannot be “reserved”)
o The maj.’s analysis of McCulloch makes most of Justice Marshall’s opinion irrelevant ; he inquired into whether federal law deprived MD of the power (DO- whether the power to create bank was delegated to the US by necessary and proper clause) ; for the maj. since the power is not “reserved”, no need to inquire into it
o (DO- this argument of dissent is persuasive ; but the maj. of this case went on to state on the assumption that “even assuming original power” ; even assuming original power, maj. based its opinion on the source of the constitution from people as a whole, whereas dissent on the source of constitution from people of several state)
- Justice Story
o He supports maj,’s opinion
o However, he was not founding member ; his opinion represent only his understanding ; he is more nationalist (federalist) than the Constitution warrants
- Conclusion : the people of the state possess “reserved” powers in the selection of members of Congress
o The Constitution does not call for members of Congress to be elected by the undifferentiated national citizenry
o The Constitution does not recognize any mechanism (e.g. national referendum) by the undifferentiated people of Nation as a whole
o Thus, the people of each state have retained their independent political identity
