Constitutional Law I Outline – Spring 2005by MG

Constitutional Law I

Spring 2005

Professor Barron

I. Judicial Review

  1. General Power of Judicial Review
  1. Review of Federal Action

Marbury v. Madison (1803)

  • Marbury (appointed a commission) brought suit against Madison (Jefferson’s Sec of State) for not delivering commission.

Marshall’s opinion.

  • Marbury has a right to the commission, because Congress passed a law creating the office, gave him a term, it’s not revocable, it was signed by the President and sealed by the Secretary of State. It would be improper to withhold the commission.
  • But, granting Marbury the relief that he seeks (mandamus) would be a violation of the constitution. Judiciary Act of 1789, § 13 (granting SC original j/d for writs of mandamus) is declared unconstitutional because Article III doesn’t list mandamus as a class of cases that the SC has original jurisdiction over.
  • Article III sets the outermost limits of jurisdiction. Congress can limit it, but can’t add to it as they’ve done here.Only the j/d given in the constitution is allowed, and Congress can’t add to the original j/d of the SC.
  • The constitution would mean nothing if you could just expand it.
  • Creation of Doctrine of Judicial Review: It is the responsibility of the SC and the Federal Courts to set aside actions of government that do not conform to the language of the constitution.
  • SC has power over non-discretionary decisions (duties imposed by Congress my statute), but not over matters that require executive discretion (political matters). This was a ministerial duty, so SC has j/d.
  • Result: SC has power to review non-discretionary decisions. SC lacks j/d to act on this matter because it’s not given in constitution.

Constitution: Silent on Judicial Review

  • The Paradox of Marbury: Marshall says that there must be authority for legislation in the text of the constitution, but there’s no textual authority for judicial review in cases of inconsistencies between the constitution and acts of Congress in the constitution.
  • Under Marshall’s view, ONLY judges can determine constitutionality. (3 provisions provide basis: Art III, § 2; Supremacy Clause; Oath clause.)
  • The constitution doesn’t say who the appropriate party is to decide that the constitution has been followed. But, Hamilton argued in Federalist #78 that there’s a structural basis for judicial review, because it would be undemocratic to allow the legislature to determine the validity of their own actions. The constitution is the product of the people.
  1. Review of State Civil Appellate Opinions

Martin v. Hunter’s Lessee (1816)

History:

  • Lord Fairfax devised land to Martin (British subject). VA passed a statute and confiscated British lands, and granted this land to Hunter.
  • Post-Revolution peace treaty between Britain and US: US will return confiscated lands to British subjects. Martin went onto the land, pursuant to this. Hunter brings an ejectment action because VA gave him the right to the land.
  • Case history: VA trial court – held for Martin against Hunter based on treaty. VA Court of Appeal reversed. § 25 of the Judiciary Act of 1789 (stating that the SC has appellate j/d over state civil cases) was unconstitutional because the states and Federal government are of equal statute. –Art III should be read to give SC j/d only over the lower federal courts.
  • Compact Theory of the Constitution: The states created the constitution, and thus they’re superior to it because the constitution is a compact of the states. If a decision by the government created by the states is inconsistent with their state sovereignty (or they just don’t consent), The states don’t have to abide by it

Story’s Opinion: Must justify the proposition that the appellate j/d of the SC extends to civil appeals from the state courts.

  • Article 6, cl. 2: “The Constitution shall be the supreme law of the Land, and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
  • Lower court judges are bound by the constitution.
  • Article 3, § 2: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;…”
  • The SC’s j/d includes all cases and controversies arising under the Constitution. Since the state court has decided the constitutional question originally, the SC has power to review the issue by way of appellate j/d.
  • The case, not the court, gives j/d. SC must hear all matters involving federal power and federal questions.
  • Policy justification: Need for national uniformity in Fed. constitutional interpret’n
  • Rejection of the compact theory of the constitution: Article 1, § 10 “No state shall…” list: All limitations on state sovereignty.
  • Holding: SC has appellate j/d over the state appellate courts, as well as federal appellate courts.

Johnson’s concurrence:

  • The Court is supreme over persons and cases in terms of judicial powers, but isn’t deciding on the matter of asserting compulsory control over state tribunals.
  1. Review of State Criminal Appellate Cases

Cohens v. Virginia (1821)

  • Congress provided that DC was authorized to run a lottery. VA prohibited lotteries. 2 people sold DC Lottery tickets in VA. They were arrested, prosecuted and convicted. The convictions were appeals to the US SC.
  • Issue: Does the SC have appellate j/d over criminal appeals coming from the state SCs?
  • VA argues: criminal j/d doesn’t include cases from the states, based on Article 3, § 2, cl 2: “And those in which a state shall be a Party, the SC shall have original jurisdiction.” – Per Marbury, you can’t add to original j/d. The states are mentioned in art. 3,so the expression of one type of SC j/d over the states means the exclusion of all others.
  • SC: (Marshall) – Expansive View
  • Looks at the purpose and spirit of the constitution, including the structure of the whole document. To achieve the purposes of the constitution, it has to be assumed by those who enacted it that criminal appeals are within the SC’s appellate j/d.
  • (But, Congress only wanted to authorize sale in DC, so VA can prosecute).
  1. Remaining Unclear Areas About the Scope of Judicial Power:

Nixon v. Sirica (D. C. Cir. 1973):

  • Issue: Can the President be subpoenaed or is he immune to judicial process?
  • Holding: The President is not immune to process. He may be immune from orders of the court for actions of discretion though.

Cooper v. Aaron (1958)

  • History: Massive resistance to integration post Brown v. Board. Ark’s governor was ordered to integrate CentralHigh School in Little Rock. The Ark National Guard refused to let black kids enter the school. Eisenhower called out the federal troops to enforce the decree of the school board.
  • Governor argued compact theory of constitution: states can nullify Federal constitutional commands if they intruded too much on state sovereignty.
  • Issue: Does SC have power to bind state governments (not just state courts)?
  • Holding: Constitution applies to governors, as well as everyone else. The legislature and governor can’t nullify the constitution. “The federal judiciary is supreme in the exposition of the Constitution.”
  1. Techniques of Constitutional Interpretation
  • Originalism (Intentionalism): Bork; Perry
  • Insure into the text, structure and history of the constitution to get a working premise—don’t only look at the facts or context that the framers may have known.
  • Broader view than textualism.
  • Useful theory, but multiple views can still be had from the same theory.
  • Textualism: Scalia; Thomas
  • The text is the only subject of inquiry (See Thomas in Utah v. Evans.)
  • Bennett: If you just look at the words of the text, you’re on safer ground. Separate text and intent. You can agree on the history of a clause, but the words are there and are objective.
  • Interepretivism: Ely.
  • Constitutional interpretation is appropriate where its conclusions are derived from the text of the constitution, or can be fairly implied or derived from it. Otherwise, there’s no anchor. The constitution provides structure.
  • Non-Interpretivism: Grey
  • It’s clear that the norms the SC uses come from outside of the constitution, and we should concede this. Conceptions aren’t really in the constitution—they’re derived from other sources.
  • Neutral Principles: Frankfurter
  • The courts should interpret the constitution in complete detachment. Look for the most neutral principles, in the sense that they should be free from any kind of result oriented jurisprudence.
  • Passive Virtues:
  • The courts should cultivate some matters, because of their need to inspire public confidence and be seen as non-political. Even though there may be j/d, don’t decide these issues. (Ex: Don’t decide Bush v. Gore.)

Utah v. Evans (2002)

  • Utah lost a seat in the House to NC, as a result of the last census. “Hot-deck” imputation (filling in gaps in census info using characteristics of similar, neighboring houses) was used. Utah sued, arguing that there must be actual counting according to the Census Clause: Art I, § 2, cl. 3: “The actual enumeration.”
  • Issue: What theory of interpretation should you use to interpret the constitution?
  • Holding (Breyer, maj.): This method of counting doesn’t exceed constitutional limits. The method is consistent with the command of the Census clause. Actual enumeration just has to be a counting that’s not totally based on sampling or statistical analysis. “Actual” refers to the 3rd Congress, and not to 2nd Congress.
  • Originalism. (Maybe interpretivism: state in constitution, or fairly imply from it.)
  • Thomas: (dis.): Using 18th Century dictionaries, “actual” means actual counting, not an estimation. Breyer disregards the part of the clause where it says “in such a manner as Congress shall direct.” This can’t knock out the other clause of actual enumeration. There is strong evidence that the framers place high value on avoiding political manipulation.
  • Originalism/intentionalism with a textual slant (because he goes to the dictionary to get the meaning of actual enumeration from the 18th C.)
  1. Judicially Imposed Limits on the Exercise of the Judicial Review Power: The Political Question Doctrine
  1. The Apportionment “Thicket”

Background:

  • Republican Guarantee Clause: Article IV, § 4. “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion;”

Luther v. Borden (1849)

  • History: RI was operating under 2 charters/constitutions.
  • Issue: Was the Charter government of RI republican under the Guarantee Clause?
  • Taney’s Opinion: Determination of what is a republican form of government isn’t a matter for judicial decision. It depends on a democratically elected branch of government, and thus is exclusively a Congressional responsibility.
  • This is a matter for the political branches to decide.

Colegrove v. Green (1946):

  • IL legislature was dominated by rural representatives. Refused to review redistricting because if they did Chicago would gain and down-state would lose.
  • Frankfurter: (for plurality 3-1-3)This is a non-justiciable matter. The courts shouldn’t enter this political thicket of issues about mal-apportionment.
  • Rutledge: This issue is not generally non-justiciable, but this specific case is because there would be a want of equity if its hereb/c brought near next election, thus little time to reapportion.)
  • Dissent: There was j/d, and it’s justiciable too.

Gomillion v. Lightfoot (1960)

  • Town was gerrymandered to exclude black families.
  • SC (Frankfurter): This is unconstitutional. In Colegrove, the IL legislature failed to act. Here, they acted and it was discriminatory.

Coleman v. Miller (1939) (Cited in Baker v. Carr)

  • Federal child labor law was declared unconstitutional, based on narrow definition of the commerce clause. The South used child labor, so those opposed to it tried for a constitutional amendment.
  • When it first came to the legislature of KS, they objected to it. 18 years later, they ratified.
  • Issues: 1) How long does a proposed Constitutional amendment with no time limit hang around prior to ratification? Is it open to being ratified forever?2) If the state legislature first refused to ratify it, can they decide to ratify it later?
  • Court: We have no criteria for resolution or guidance here. This is for Congress to determine, not us. It’s a political question.
  • Article 5 of the Constitution leaves amendments to Congress.

Baker v. Carr (1962)

History:

  • 1901: Last reapportionment statute in TN passed. Hadn’t reapportioned for 60 years. The state constitution required reapportionment every 10 years, and this was defied 6 times. Dist Ct.: No j/d.
  • Challenge: 14th A, EP clause violation.

Brennan:

  • Jurisdiction: There is j/d because this arises under the constitution. District court misread Colegrove, because there Frankfurter held that there was j/d, but just didn’t decide the case.
  • J/d: Whether court can hear the case.
  • Justiciability: although there is POWER to hear the case, must decide whether case is suited for court on basis on judge-made doctrine
  • Luther v. Borden is distinguished because the mere fact that a suit seeks the protection of a political right doesn’t mean that it presents a political question. Deciding this equal protection issue doesn’t show disrespect to the Federal government, and thus is not a Republican Guarantee clause case.
  • Coleman v. Miller is distinguished, and this is not a non-justiciable political question because that case had had two separation of powers problems, both of which were not a problem in this case.
  • 1) Finality of action attributed to political departments.
  • Here, there’s no problem of usurpation of another branch of the Federal government. (v. Coleman)
  • 2) No criteria for judicial determination.
  • There are manageable judicial standards here, unlike in Coleman, because equal protection gives standards.
  • “The political question doctrine, a tool for maintenance of a governmental order, will not be so applied as to promote only disorder.”
  • Brennan makes this case be about equal protection not the republican guarantee clause, thus making it justiciable. E.P. basis: By ignoring their constitution, TN is denying people the E.P of the laws and their right to equivalent representation.
  • Avoids the history of mal-apportionment and the “political thicket” problem by just asking the state abide by its own constitution. This gets around Frankfurter’s argument that judges lack the competence to make redistricting determinations.
  • 6 Criteria for How to Identify a Political Question: (only 1 neces. for pol. ques.)
  • (All are basically non-justiciable based on separation of powers concerns.)
  • (1) and (2) relate to Judicial Functions (What’s approp. for Jud. Branch)Classic
  • 1) Textually demonstrable constitutional commitment of the issue to a coordinate political department.
  • (Coleman: Non-justiciable because Article 5 leaves it to Congress)
  • 2) Lack of judicially discoverable and manageable standards for resolving it.
  • Baker: Lots of equal protection clause case law.
  • Coleman: Republican guarantee clause has little case law because non-justiciable.
  • (3) – (6) deal with Deference to Other Branches. Prudential or functional
  • 3) Impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion.
  • Ex: Courts hold that it’s not appropriate for them to determine when a war is over, because they lack all of the information that the political branches have.
  • 4) Impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government.
  • 5) Unusual need for unquestioning adherence to a political decision already made.
  • 6) Potentiality of embarrassment from multifarious (diverse) pronouncements by various departments on one question.
  • Holding: The question of whether state legislative apportionment satisfies E.P. is not a political question, since it does not involve separation of powers concerns and E.P standards for decisions are available.

Frankfurter’s Dissent:

  • This is a republican guarantee clause case, and isn’t about equal protection. The Guarantee Clause says that this is non-justiciable.
  • The court is making a determination of what an ideal polity looks like, and this is an inappropriate role for judges because they are not competent to do this. Many factors go into districting: geography, demography, convenience…. To assume that judges can make this determination gives them omni-competence.
  • The court may be undermining it’s own power—if the TN legislature ignores them, they’ll lose their force.
  • The only power of the SC is the willingness of people to adhere to their decisions. If this is squandered, the court has no power.
  • Geographically proportioned representation is not necessarily an element of equality under the 14th A because the Constitution doesn’t requie all citizens to have equivalent political influence (ex: each state gets 2 senators, regardless of population.)Tennessee chose not to accept the idea of equivalent representation. It’s their choice and is not actionable.

Clark’s Concurrence:

  • Not crazy about the Court getting into this area. If TN had any other relief available, the Court shouldn’t get involved. But, here, the people in the legislature will never vote themselves out of office so the Court must intervene.
  • If they had an initiative and referendum it would be different, because it would give the people power to skip the legislature. (n/a though)

Cases resulting from Baker v. Carr:

Reynolds v. Sims (1964)

  • States aren’t free to choose geographic over proportionate representation. Equal protection requires one person, one vote.

Davis v. Bandemer (1986)

  • Dems lost a lot of representation, as a result of GOP gerrymandering. Dems sued, alleging that the gerrymandering violated the E.P. clause.
  • SC: Plurality opinion:
  • Held (4): The question of political gerrymandering is justiciable. But, in order to violate E.P. you must show a pattern of un-representation over many years, which this case doesn’t do b/c its just based on 1 election.
  • O’Connor (3): This is a non-justiciable area b/c political question.
  • This is different from Baker v. Carr’s lack of representation. This issue is gerrymandering and whether the appropriate way to redistrict is a judiciable.

Vieth v. Jubelirer (2004) (p176)

  • PA gerrymandering.
  • Plurality Decision again. (5-4, with concurrence.)
  • Scalia (4) : Because there are no working standards for the Court to use, a particular case of political gerrymandering under equal protection is non-judiciable.
  • Courts should provide relief and not hope.
  • The problem of mal-apportionment by one political party against another is to be solved by voters.
  • Dissent (4) : Gerrymandering can be justiciable. (Not deciding on the merits—just deciding if this is appropriate for the courts to determine.)
  • Stevens: It’s important to remember that 5 members of the court are convinced that it would be contrary to precedent and unwise to foreclose all judicial review and j/d over such claims in the future. Gives potential standards for Court’s to use.
  • Kennedy’s concurrence: The situation isn’t forever foreclosed, and we may be able to determine a standard one day.
  • Result of this case: Political gerrymandering claims are NOT non-justiciable. You need to present a working standard in order to take the cases in front of the SC.

Powell v. McCormack (1969)