LLM Group 1 Constitutional and Administrative Law Comparative Constitutional Law 2019 Question Paper with Solutions

For full marks, cover: both notes at about twelve and a half marks each, since no choice is offered. Facts, the precise question, the holding with its reasoning, the criticism where there is any, and the consequence. Both are Marshall Court decisions twenty one years apart, and the closing sentence should say what each contributed.

(a) Marbury v Madison, 5 U.S. (1 Cranch) 137 (1803)

Facts. The election of 1800 transferred power from the Federalists to Jefferson's Republicans. In the interval before the inauguration the outgoing Congress passed the Judiciary Act of 1801 and the Organic Act for the District of Columbia, and President Adams filled the offices in his final hours. William Marbury was appointed a justice of the peace for the District of Columbia; his commission was signed by the President and sealed by the Secretary of State, John Marshall, then about to become Chief Justice, but was never delivered. Jefferson directed James Madison to withhold the undelivered commissions. Marbury applied to the Supreme Court for mandamus under section 13 of the Judiciary Act of 1789.

Criticism. Section 13 was capable of being read as conferring mandamus only in aid of the appellate jurisdiction, in which case no constitutional question arose; Marshall should arguably have recused himself, since his own failure to deliver the commissions caused the dispute; and the opinion decided the merits before deciding that the Court lacked jurisdiction.

Consequence. By declining jurisdiction the Court claimed the power of judicial review while giving the executive the result it wanted, so there was no order to disobey and the claim went unchallenged. The power was not used against a federal statute again until Dred Scott v Sandford in 1857. Article 13(2) of the Indian Constitution enacts Marshall's conclusion in terms, which is why Indian judicial review has never had to justify its existence, only its extent, and why Kesavananda Bharati v State of Kerala, (1973) 4 SCC 225, could extend it to constitutional amendments without any argument about whether the power existed.

Consequence. The steamboat monopolies ended and navigation was opened to competition. Constitutionally, the commerce clause became the principal source of federal legislative power, sustaining the Interstate Commerce Act of 1887, the Sherman Act of 1890, the New Deal statutes upheld in NLRB v Jones and Laughlin Steel, 301 U.S. 1 (1937), and Wickard v Filburn, 317 U.S. 111 (1942), and the public accommodation title of the Civil Rights Act of 1964, upheld in Heart of Atlanta Motel v United States, 379 U.S. 241 (1964). The modern limits are United States v Lopez, 514 U.S. 549 (1995), and National Federation of Independent Business v Sebelius, 567 U.S. 519 (2012).

Comparative note. India required no judicial expansion of a commerce power, because Entry 42 of List I confers inter State trade and commerce expressly and Articles 301 to 307 constitute a separate Part on freedom of trade, commerce and intercourse. Indian case law has run the other way: Atiabari Tea Co v State of Assam, AIR 1961 SC 232, and Automobile Transport (Rajasthan) Ltd v State of Rajasthan, AIR 1962 SC 1406, built a compensatory tax exception, and nine judges discarded it in Jindal Stainless Ltd v State of Haryana, (2017) 12 SCC 1.

Marbury also settled a rule of method the Indian courts inherited. A court decides a constitutional question only when it must. That is the fourth of the seven rules Brandeis J. set out in his concurrence in Ashwander v Tennessee Valley Authority, 297 U.S. 288 (1936), which the Indian Supreme Court has adopted, and it is the rule Dred Scott v Sandford, 60 U.S. 393 (1857), broke, because the holding on citizenship disposed of the case and the holding on the Missouri Compromise was therefore unnecessary.

Gibbons founded two doctrines and not one. The affirmative commerce power is the one usually given. The second is the dormant commerce clause, the rule that the commerce power of its own force restricts State legislation discriminating against or unduly burdening interstate commerce even where Congress has said nothing. Johnson J. argued for it in his concurrence; Cooley v Board of Wardens, 53 U.S. 299 (1852), settled the compromise that subjects requiring a uniform national rule belong exclusively to Congress while local subjects may be regulated until Congress acts; and Pike v Bruce Church Inc, 397 U.S. 137 (1970), states the modern test, that a non discriminatory State law with a legitimate local purpose stands unless the burden on interstate commerce is clearly excessive in relation to the local benefits.

One further point belongs in the Marbury note. The judgment also founded the review of executive action, and it did so by a distinction that has governed administrative law in both countries since. Marshall CJ held that where the head of a department acts as the political or confidential agent of the executive, merely to execute the will of the President, his acts are examinable only politically; but where a specific duty is assigned by law and individual rights depend upon its performance, the individual injured has a right to resort to the laws for a remedy. That is the origin of the distinction between a discretionary and a ministerial act, and it is the line the Indian courts draw when they hold that mandamus lies to compel the performance of a public duty but not to dictate how a discretion is to be exercised.

Wickard v Filburn, 317 U.S. 111 (1942). Roscoe Filburn farmed a small holding in Ohio and grew twenty three acres of wheat where his quota under the Agricultural Adjustment Act of 1938 allowed eleven; the excess was fed to his own livestock and consumed on the farm, none of it entering any market. He was fined and argued that wheat never sold cannot be interstate commerce. The Court upheld the penalty unanimously, holding that even activity local in character and not regarded as commerce may be reached if it exerts a substantial economic effect on interstate commerce, and that home consumption, taken together with that of all similarly placed growers, affects the national wheat price by reducing demand. It is the furthest point the commerce power ever reached, and reading it beside United States v Lopez, 514 U.S. 549 (1995), shows the whole arc that Marshall CJ began in 1824.

Conclusion. The two notes are the two halves of Marshall CJ's achievement. Marbury established that a written constitution binds the legislature and that courts will say when the limit has been passed, in a judgment the administration could not defy. Gibbons used the same authority to read a grant of federal power broadly enough to make a single national market possible. Together they show that a constitutional court's power rests on two things, a text it can appeal to and a case in which the political branches cannot afford to disobey.