Case: Martin v. Hunter's Lessee [14 U.S.

304] (1816)

Facts: Lord Fairfax, a VA citizen, died and left his VA land to his nephew, Martin, a British
citizen, resident in England. VA claimed the property was theirs (b/c of state laws confiscating
lands owned by British subjects), and gave it to Hunter. Hunter brought a suit to eject Martin
from the land, but VA district court found for Martin (b/c VA had not perfected title to land
before giving it to Hunter, so status of land is subject to treaties - any land that had not yet
escheated to the state it would belong to the British subject). But VA court of appeals reversed,
holding that (1) the state's title to the party was perfected before existence of the treaty, and
therefore the treaty didn’t change anything (didn’t give title back to British subject), and (2) the
Act of Compromise (1796)(VA state law settled ownership on this land for Hunter)settled the
matter against Martin. The SC then reversed that decision, holding that state had not perfected
the title, and so Martin still had the title, b/c of the treaty against confiscation. The case was
remanded to VA Court of appeals to enter judgment for Martin, but that court refused to obey,
declaring that the SC had no right to review the decisions of state courts under the U.S.
Constitution.
○ What's interesting is that SC never mentions the Act of Compromise, which Court of
Appeals relies on as well (alternative theories on why land belongs to Hunter). Why would
they leave it out?
○ It's a state law claim, and a state law decision. SC only has jurisdiction when it's a
federal question. The state claim (Act of Compromise) can go to fed court under
supplemental jurisdiction. But usually, SC will abstain from taking the case altogether
when there's a state ground that will also uphold the state court decision. Normally,
court would not take the case. But it did, without mentioning the state claim.
○ Why does VA court think it can ignore the SC ruling?
○ Judiciary Act extends appellate jurisdiction of SC for fed questions. The VA court of
appeals says that the section of the Judiciary Act is unconstitutional. B/c Constitution
does not give SC power to review state court decisions. Even if judiciary act was
valid, should not have gone to SC, b/c Act of Compromise based on state law, so must
uphold state court decision.

Issue: Whether the SC has the authority under the Constitution to review, for constitutionality,
decision of state courts. - Yes.

Reasoning:
○ Art III states: "The judicial power shall extend to all cases, in law and equity, arising under this
Constitution"
○ The judicial power extends to allfederal question cases. So why is it that SC can review
state court decisions on constitutionality?
○ So it has to cover all fed questions whether they arise in state or federal court
○ So if it's not there on original jurisdiction, then its there under appellate jurisdiction.
○ The SC must have power to say state court decisions are unconstitutional, and state court
must listen to them
○ The jurisdiction is over the case, not the tribunal
○ So cases may arise in state or fed court. But it may also arise in an int'l court (for a
treaty issue), and involves a fed question. Can SC take that case away from the int'l
tribunal? NO. So Justice Story is wrong. ALL doesn’t mean all, b/c then it would
 include the int'l court. So it SC's power extends from the tribunal. And this goes to the
Supremacy Clause.

• Supremacy Clause declares that the Federal interpretation will trump the States interpretation.
○ Art VI - "This Constitution, and the laws of the United States . . . and all treaties made, or
which shall be made, under the authority of the United States, shall be the supreme law of
the land; and the judges in every state shall be bound thereby, anything in the Constitution
or laws of any State to the contrary notwithstanding.
○ This makes all state Judges bound by federal law. So how do you get from this to Supreme
Court's power of judicial review?
• LOGIC:
 Federal law is supreme over state judges.
 Therefore, state courts will deal with federal questions (they have original
jurisdiction over these cases)
 SC has appellate jurisdiction. Since state courts may hear fed questions, Then
Supreme Court should have power to also review them.
• Art. III, Sec. 2 of Constitution: " In all the other cases before mentioned,
the Supreme Court shall have appellate jurisdiction, both as to law and
fact, with such exceptions, and under such regulations as the Congress
shall make."
• If SC couldn’t review decisions from the highest State court, the
State courts would be excluded from ever hearing a case in any way
involving a Federal question, because the SC couldn’t have appellate
jurisdiction in those cases. So, because the States could rule on
Federal issues it must be true that the SC can review the decision or
the SC would not have appellate jurisdiction in "all other cases."
 Therefore, SC can tell Judges whether their decisions are valid
• This is a good argument. Patches up the first argument.

• State sovereignty argument rejected

○ The Spirit of the Constitution argument
• It's the spirit of the Constitution to limit the state's powers. State sovereignty is
curtailed by the Constitution.
• The Constitution gives many limitations to state governments. The Constitution gives
Congress the right to revise, amend or supersede state laws. So states are bound by
the authority of the Federal govt, and so this is consistent with the SC's right to
review state judiciary decisions.
 Art I, Sec 10. - List of things states may not do.
• This doesn’t impair the independence of state judges, b/c state judges are bound by
the Constitution (federal)

• Uniformity
○ The absolute right of decision must rest somewhere -so it will be the SC
○ it is necessary to have a uniform interpretation of the Constitution, Fed Laws, & Treatises
across the nation in order to avoid differing interpretations among the States.
 ○ You have to have uniformity when it comes to Constitutional law - you canthave diff states
interpreting the Constitution differently. Only way to have uniformity is to have one court.
• So why the Supreme Court? - each state will decide in their own interests. So you
need the SC to do this.
○ Why do we need uniformity? States have diff laws for a lot of things, and this seems to be
ok.
• well, uniformity is not a bad argument, but not perfectly persuasive.

• SC is neutral; State courts are biased. Conflict between states, so we need a neutral party.
○ Constitution admits biases and prejudices between states, and they will be jealous of one
another.

• Historically, SC has told state courts what to do.

○ And in past, state courts listened, they didn’t argue
○ Historical precedent was that Supreme Court ruled on these matters, and state courts
listened.
○ So this gives some legitimacy to the argument now.

• Section 25 of Judiciary Act - authorizes the exercise of jurisdiction in the specified cases
○ Says Supreme Court has power of judicial review over fed questions decisions of state
courts
○ The framers of the Constitution also wrote the Judiciary Act, so they intended what they
meant in the Judiciary Act.
• Therefore they must have intended that Supreme Court had power to review state
court decisions
○ Why was this argument used here, but not in Marbury?
• b/c in Marbury Marshall was arguing that Judiciary Act & Constitution arein conflict.
This argument would defeat what Marshall was trying to argue.

• Argument of original understanding

○ It was publicly avowed by everyone (not just framers) that SC would have power to review
state court decisions.
• Similar but not the same as history argument

Class Notes
• Is it a good idea for SC to be the final arbiter in what is Constitutional?
○ Good idea
• For efficiency - they will make this decision. If they're wrong we can amend the
Constitution.
• But ok for SC to rule on other branches (even though counter-Majoritarian dilemma)
 There are some things in Constitution that are supposed to not be controlled by
the majority. This is a Madisonian Structure. There are certain rights,
protections, roped off from majority control. They are guaranteed to people by
 the Constitution. You can't have a Majoritarian body like Congress policing that,
so you need the SC.

○ Bad idea
• Uniform laws may not work for our vastly different state cultures (but this depends on
a particular court ruling)
• Counter-Majoritarian Dilemma
 Democracy - Supreme Court taking power away from people. They hold
position for life, so not answerable to the people.
• Congress & President is elected by the people, so they are acting for the
people. So if Supreme Court says what they do is unconstitutional, then a
minority is telling majority what to do. This creates a counter-Majoritarian
dilemma.
• Sometimes Supreme Court interpreting Constitution in a way that may not
be right.

• When SC rules, they must have a valid, constitutionally derived theory, or else all they are saying
they just don’t like the majority rule. They need to have a good argument for why.
•
○ What mode or type of argument did court use in this case to prove the decision is
constitutionally based, and not personally based?
○ Different modes of constitutional interpretation
• Structural argument. The structure of govt set forth in the Constitution tells us that
there are states and fed govt, and will have diff spheres of authority, etc. based on
structure of govt implied in the Constitution.
 Problematic on relying on structural arguments - why might we hesitate?
• You have to be careful and skeptical to what is clearly implied, or else
they go too far.
• i.e. - like ok for exec to wire tap b/c of structure of govt
• Textual arguments. Rely on the text, and argue. This is the best argument you can
make.
 Anything wrong with the textual argument?
• May leave a lot of room for interpretation
• Framer's intent argument. The legislative history of the Constitution. The people who
write the Constitution had meant the provisions to mean this.
 Problem?
• Framers were a multi-member group - not all intended same thing. So
who's intent should govern?
• Who were the framers?
• The drafters - the people who wrote it
• The convention delegates - the ones who debated it
• You want to know what everyone thought, not just
majority opinion, but dissent as well
• Ratifiers (at state level) - people who ratified the Constitution
• Hard to define framer's intent.
 • What about things that could not have been contemplated back then (like
allowing fed govt to establish the air force)
• Specific intent - However, they provided for army and navy,
specifically, but not the air force. Air force unconstitutional, b/c no
express power to establish it.
• But, let's not look at the particulars of it, but at the general concept
was to have armed forces, so you can have air force. Well, since fed
govt allowed to establish army & navy, then ok to establish air force
- same thing
• Argument of original understanding
 Whose understanding? - the public; what everyone who lived then understood it
to mean
 How do we know what this intent is?
• People wrote books/articles about what they thought it meant
• Look at dictionaries - What the specific words meant back then
 Problems
• Dead hand problem - We have evolved. We've changed a lot. When
Constitution adopted, only white men who got to have a say. So we would
be stuck with what people thought 200 years ago.
• We should understand the Constitution to mean what people today
understand it to mean
• We should go back to see how they understood it
• But looking back, we can see the overall purpose of how the
govt was established
• People back then were very aware of these issues, and much
more involved than people today
• Constitution formed during a period of heightened political
awareness
• So we should rely on what they said, b/c they were really
thinking about it, while today, we're not really thinking about it
• Consensus interpretation (today's majority)
 Congress - current consensus; not judicial review
 Problem to rely on current consensus to interpret the Constitution (today's
consensus)
• Constitution formed during a period of heightened political awareness, so
we should look at past majority
• Contractual - We decided, as a country, by a super majority vote - we
made a pact and shouldn’t change that (until we get another super-
majority vote). Need fixed point of agreement.
• Judicial precedent
 The court has previously the interpret a provision to mean something, and once
its decided, that’s what it means - stare decisis
 Argument - that's what court said for years, that's what we're relying on
• Policy argument
  The Con must embody good policy, must promote justice. Often a resort to what
are our country's fundamental values that we as a nation subscribe to?
 Problem
• Who's values? Who decides what the fundamental values are?
• In judicial review, the majority of Supreme Court justices decide.
Problem is - who are those people? How representative are they of
the nation as a whole?
• But why is it bad that an non-representative body decides what the
fundamental values are?
• They have their own bias. They think its fundamental b/c to them its
fundamental.
• Functional argument
 An argument of necessity. You can only make a functional argument, one way
or another, but doesn’t rule out your conclusion. And, if it is necessary to have
your posit, then ok argument.
 Like the uniformity argument
• Where else would we get uniform law without judicial review?
• History
 Rely on historical practice/precedent. No one else questioned it, so it must have
been constitutional all along.
• Usually for president's powers b/c Constitution doesn’t really specify
exec's powers
 Problem
• Just b/c they've been doing it for 100 yrs, doesn’t mean it's right, and
constitutional in the first place