CONSTITUTIONAL LAW
ROBERTSON (TEXT: FARBER 2ND)
SPRING 1999
I. INTRODUCTION:
Constitution (1787-91)
A. Article One -- The Legislature
1. Bicameralism
2. Presentment Clause
3. Section 8 Powers (including the Necessary & Proper Clause)
4. Section 9 Limitations
5. Section 10 Limitations on the States
B. Article Two -- The Executive
1. The President (election, eligibility, oath)
2. Section 2 Powers (commander-in-chief, treaties, executive
appointments)
3. Faithful Execution of the Laws
C. Article Three -- The Judiciary
1. Supreme Court & the inferior federal courts (steady
compensation, life tenure)
2. Section 2 Powers (constitutional cases, US statutes, treaties &
foreign officials, admiralty, US or State as a party).
3. Treason cases
D. Article Four -- The States
1. Full Faith & Credit Clause
2. Privileges & Immunities Clause
3. Republican guarantee
4. Requirements for new states
E. Article Five -- Amendments
F. Article Six -- The Supremacy Clause
G. Article Seven -- Ratification
H. The First Ten Amendments (1791)
1. Establishment of religion; free exercise of religion; free
speech; free press; free assembly; petition for redress of grievances.
2. Militia; right to bear arms.
3. Quartering of soldiers
4. Search & Seizure
5. Protection of the Criminally Accused including due process;
takings clause
6. Criminal Protections
7. Civil Protections
8. Cruel & Unusual Punishment; Fines
9. Other Rights Retained By the People
10. Reservation of Powers to the States or the People, if not
identified.
I. History (1776-1791)
1. Declaration of Independence
a. principles of freedom & liberty
b. not included in the Constitution
· Republicanism (found in the Articles)
a. virtuous legislators concerned with public good
b. sacrifice of individual interest to greater civic goal
· Anti-Aristocratism
a. virtue earned, not inherited (equal opportunity)
b. avoid corruption through imposed aristocracy
c. meritocracy--best rise & govern
· Disappointment With Prosperity of the Non-virtuous
a. mistrust of the people = separation of powers
b. less faith in republicanism/civic virtue ideal
· Economic Prosperity & Hard Work
a. opportunity for common people
b. doubling of population
c. emphasis on individual rights
2. Marshall Court's Nationalist Vision (1801-1835)
3. Civil War -- 14th Amendment(1836-1873)
4. The Lachner Era -- Invalidate Fed Leg w/ Commerce CL (1873-1937)
5. Court Packing Plan/ New Deal (1937-1942)
6. Warren Ct -à Renquist -- Modern Ct. (1953-Presents)
J. The Role of Law
1. Discretionary adoption of common law
2. Faith in & respect for law and its increased use in dispute
resolution
3. importance of contracts
4. judiciary as a check on democracy
5. Supreme Court as arbiter of the Constitution
JUDICIAL REVIEW AND CONSTITUTIONAL INTERPRETATION
· Plessy v. Furguson
A. Brown v. B.O.E. of Topeka -- segregation of public schools violates
the EPC b/c segregation and equality can't coexist given the latent effects of such segregation on minorities.
1. 14th A didn't specifically address this issue (Meaning of EPC is
vague)
2. Segregation denies blacks an equal educational opportunity
(inferiority complexes & inherent inequality of schools).
3. Plessy dealt with transportation, not schools (education has
special importance)
4. NOTES: Court was concerned with national effect of its decision
a. self-restraint thru narrow holding & delayed
implementation
b. unanimity
c. Court has no enforcement power & restraint preserves its
legitimacy
d. Court is overturning the will of the people
(countermajoritarian difficulty)
B. Marbury v. Madison -- The Judicary Act unconstitutionally expands the
SC's jurisdiction the Court cannot issue a writ of mandamus b/c it has no original jurisdiction in the matter.
1. the commission was signed, sealed, & delivered to P he had a
vested legal right to it.
2. mandamus is the proper remedy and P has the right to a remedy
3. Constitution specifies the Court's original jurisdiction &
leaves it with appellate jurisdiction in all other cases
4. The Act improperly forces new jurisdiction on the Court =
unconstitutional
5. duty of judiciary to expound & interpret the law, including the
Constitution.
C. Cooper v Aaron (1958) Gov. of Arkansas refused to implement Brown
integration plan.
1. State authorities are bound by S.Ct. interp of Const.
2. Reinforce Judicial Review authority of Marbury
D. PUBLIC LAW LITIGATION
1. Swann (1971) -- Court upheld busing plan to remedy the vestiges
of segregationj where 2/3 of blacks attended 99% black schools.
a. Busing plan is an acceptable measure even where remedy is
awkward during interim period.
b. Judges have broad remedial power in this area & should
make every effort to achieve the greatest possible degree of desegregation.
c. Pairing & grouping of noncontiguos school zones is an
acceptable tool
d. Bus trip would be shorter for many than under old plan.
2. Freeman (1992) -- DC judge said that County had achieved unitary
status despite unequal percentage of money being spent on white students. Therefore, no more court supervision and P's would have to show intentional discrimination (Davis).
a. Where there are only vestiges of a segregated system left,
a court may forfeit control and supervision( but may still retain jurisdiction).
b. Primary goal is to return school districts to local
control + ending segregation.
c. Current racial imbalance caused by discr.
D. Theories of Constitutional Lawmaking: (restraints)
1. Originalist (conservative)
· historical -- intentions of Framers & Ratifiers (narrow-at the time vs. broad-purpose)
a. Textualist --- reasonable interpretation of the text
b. Original Understanding
c. Purposivism (effectuate purpose)
2. Process Theory of Judicial Restraint
a. Decide political questions through the legislature =
representation reinforcement (let democracy run its course)
b. Process & Structure is more important than substantive
rights
3. Structualist -- infer rules from relationships the Constitution
mandates among its structures
-- e.g. can't make laws vs. the constitution & someone has to decide if laws are vs. it and judiciary is the natural branch for it.
4. Evolutive
a. Feminist
b. Republican
5. Pragmatic - common law.
II. POWERS:
A. FEDERALISM
· McCulloch v. Maryland (1819) -- MD attempted to tax the national bank
& claimed it was unconstitutional.
1. National bank is a constitutional exercise of Congressional
implied power.
a. Creation of bank is among implied powers via necessary &
proper clause
b. Implied powers allow Congress to exercise its enumerated
powers
i. Employ any means reasonably calculated to produce
the end
ii. Anything "necessary & proper to the beneficial
exercise of enumerated powers".
c. Necessary, followed by proper and placed among powers
shows that the clause is non-limiting to the extent that law must be absolutely necessary.
d. Constitution must be flexible to allow for unforeseen
exigencies
2. State cannot tax the bank
a. Power to tax is power to destroy
b. Constitution makes federal law superior (supremacy clause)
c. Constitution for the benefit of the people of ALL states;
cannot allow one state to defeat the ends of national
government.
d. States are amply represented in the federal government.
· US Term Limits Inc (1995) -- Ct struck down AR state ammend to impose
limits on canidates for US House.
1. Held -- 10th amend allows states rights not divested by Cost.
2. Power to add qualifications not within original powers of pre-
Cons. states. (Fed/state sovereignty).
1. THE COMMERCE CLAUSE
· Gibbons v Ogden (1824) -- exclusive NY steamship license vs.
federal ferry license.
a. Commerce=commercial intercourse=navigation & interstate
travel
b. Constitution directly refers to "ports" and "vessels"
c. Useless power if couldn't be extended into State borders.
d. power to regulate=power to prescribe the rule by which ISC
is to be granted
· E.C. Knight (1895) -- Sugar manufact.
-- MFG is not Commerce (no relation)
· Champion v Ames (Lotto case)(1903) -- upheld legis preventing
illegal activity
a. Relaxed means/end test
b. Federalism supports prevention of carrying lotto tickets
btn states (not intra state)
c. means justify suppression of illicit activity
· Swift & Co. (1905) -- Upheld Sherman A T prevention of price
fixing in meat-packing indust.
a. "Current stream of commerce" theory
b. Holmes: "constantly reoccurring course, which purchase of
cattle is part and incident of commerce" thus stock-yards = S of C
· Houston E W Texas RR (Shreveport Rate Case)(1914)
a. Right to control operations (Equalize R.R. rates) bearing
"Close and Substantial" relations to interstate traffic.
b. Allowed for control over both inter/intra state Commerce.
c. 1914 Test: Congressional commerce power over all matters
having “close and substantial relation” to interstate commerce. Congress can regulate the products of intrastate commerce if they cross state lines.
· Hammer (Child Labor Case) (1918) -- Congress legislation
preventing ISC in the products of child labor.
a. Regulation of child labor (a matter reserved to the
states) has nothing to do with ISC -- the goods shipped are harmless.
b. Commerce clause doesn't give power to equalize working
conditions between states with and w/o child labor laws. Matter of liberty of contract & states rights.
· Schechter Poultry (1935) -- NIRA allowed Pres. to regulate
industry (Min wage, child labor) in industry.
a. Invalid Cong. delegation of power to Pres.
b. No "Flow of Commerce" Wage didn't relate to slaughterhouse
regulation after chickens arrived in NY
c. Formalist -- not Ct's province to consider econ.
disadvantages of centralized system
· Carter v. Carter Coal (1936)
--Production, mining, manufacture, and agriculture are local activities, to be regulated by the states.
a. Congress can regulate only those things that have a direct
effect on commerce.
b. The distinction between direct-indirect effects turns not
upon the magnitude of the cause or the effect, but
entirely upon the manner in which the effect has been brought about (“character” of enterprise not extent of effect).
c. 1936 test: When determining close and substantial
relationship, look at character not extent, direct not indirect effects. Production, manufacture, mining, farming all inherently local.
· National Labor v Laughlin Steel (1937) Upheld NLRA labor-
management regulations of steel co.
a. Court packing "switch in time that saved nine" (see also
West Coast Hotel)
b. Test = Acts which "affect commerce" (burden/obstruct)
c. Apply "close and sub" relationship (now applies to mfgs)
· Darby (1941) -- same issue as Hammer
a. Hammer is bad law
b. Shipment of manufactured goods interstate is commerce;
motive of Congress is irrelevant.
· Wickard v. Filburn (1942) -- Agricultural Adjustment Quota
a. Even if the activity is local and not regarded as commerce,
it may be reached by Congress if it exerts, in the aggregate, a “substantial economic effect on interstate commerce.” Direct/indirect distinction (Carter) overruled.
b. 1942 Test: Congress has plenary power to regulate
interstate commerce, can regulate intra-state commerce if can demonstrate substantial effect of cumulative impact.
· Heart of Atlanta Motel (1964) -- Hotel with 75% of its guests
from out of state refused to rent rooms to blacks vs. the
Civil Rights Act.
a. Motel serving interstate travelers does affect interstate
commerce & racial discrimination affects ISC.
b. The regulated activity is commerce that has a national
effect.
c. (concur) -- greater protection found in 14th Amendment.
· Katzenbach v. McClung (1964) - "Ollie's Barbeque"
a. Discrimination in restaurants resulted in sales of fewer
interstate goods and that interstate travel was obstructed directly = sufficient connection between the discrimination and the movement of interstate commerce to allow federal intervention.
b. “rational basis” for regulation necessary to the protection
of interstate commerce, the only inquiry is whether the facts fit the scheme. Congress can act in “general” terms and not make exceptions for individual businesses.
Falls under Title II of CRA.
· Perez v. United States (1971) -- upheld “loan sharking” provision
of Consumer Credit Protection Act. Absence of formal findings not fatal.
· Hodel v. Vir. Mining (1981) -- Ct could regulate activities
causing air/H2O pollution. Must have "rational basis" exclude extreme private/local activities (not in commerce)
· United States v. Lopez (1995) -- invalidated Gun-Free School Zones
Act of 1990.
a. No formal findings, no “overwhelming evidence,” no
jurisdictional element in statute. Congress should have considered economic data linking guns in schools to interstate commerce.
b. Test: Congressional legislation must be supported by at
least “overwhelming evidence” but formal findings unnecessary. Conclusions must be rational, can act in general terms w/ no exceptions
2. TAX AND SPEND:
· Dole (1987) -- Congress withholds 5% of federal highway funds to
states who don't have a 21 drinking age.
a. TEST: (1) exercise of spending power must be in pursuit of
general welfare (2) Choice for states must be unambiguous (3) Nexus between condition and use of funds (4) Other constitutional provisions don't bar such a conditional grant of funds.
b. 1-3 met easily, power is not being used to induce the
States to engage in unconstitutional acts.
c. given the small % of possible lost funds, this is not
coercion, but encouragement.
d. (dissent) -- Congress is attempting to regulate the sale of
liquor. Merely a tangential and over & under-inclusive nexus between condition and purpose of funds.
3. TREATY POWER:
· Missouri v. Holland - Migratory Bird Treaty
a. Congress may regulate local activities pursuant to the
necessary and proper clause as a means of giving effect to a valid treaty.
b. Valid treaties are the “supreme law of the land” (supremacy
clause) so they override state interests in the same area. (10th amendment is not a barrier to treaty power)
c. In operation, Congress may pass a valid treaty, and then
pass a statute regulating a local activity if it is necessary to give effect to that treaty (similar to bootstrapping argument in Darby).
d. Treaties themselves are limited by rest of constitution
under Reid v. Covert (a treaty can not confer power on the Congress which is beyond the constitution).
e. Although there is not explicit grant of power to conduct
foreign affairs, it is impliedly given to Congress and the President as the most logical holders of the power.
f. Article 2 section 2 cl 2 Pres and Cong. make treaties.
B. INTERGOVERNMENTAL IMMUNITIES & CONGRESSIONAL POWER
1. DIRECT REGULATION
· Nat'l League of Cities (1976) -- Congress extended Fair Labor
Standards Act to cover state employees. = invalid
a. The law interferes with integral State governmental
functions.
b. Business subject to dual sovereignty states acting as
states.
c. State action as an employer is a sovereign attribute