The Constitution of the United States (CB Appendix A-1 to A-15)
Created to oppose the king and his tyrannical rule, so they gave power to the people directly. I also established direct government over the people and not through rule over states. James Madison said it was necessary to set ambition against ambition to keep powers in check. Federalist papers, especially #51. Federalism is the system that allows for two governments to rule over territory. Novel idea in 1787. Any attempt to create just one would not have flown there. So constitution creates federal government with some powers reserved to it, but the rest are reserved to the state or to the people. So limited power government. In contrast, states have fairly large powers, so long as they are complying with constitution. Federal law prevails even if they are considered co-equal powers, article 6 clause 2: SUPREMACY CLAUSE: doctrine of preemption.
Why keep state rights:
· Easier to ratify
· Impracticability of governing a large territory from a central location.
· And added check and balance to the system: the two governments compete and balance each other.
Slavery not mentioned but used in three places in constitution because it was a huge issue that needed a compromise:
· 3/5 clause
· 1808 protection clause to import slaves even if duty imposed
· fugitive slave clause: forced to return slaves to owners.
Functions of constitution:
· 1- establishes national government and divides power between branches.
o Article 1 creates congress and divides it into two houses, sets down rules for legislative power, representatives are larger, terms, requirements for each house, etc. Surprisingly enough, the right to vote is not there! It tells you how to withdraw the right, but doesn’t give it. Sometimes referred to as negative and positive rights.
o Article 2: executive branch. Rules, requirements, fairly anti-majoritarian since electors are used. System is unrepresentative of popular power, since small states have a disproportionate influence.
o Article 3: Judiciary branch. Creates Supreme court and establishes life tenures and protects their salaries.
· 2- Divides power between federal and state: James Madison said it was necessary to set ambition against ambition to keep powers in check. Federalist papers, especially #51. Federalism is the system that allows for two governments to rule over territory. Novel idea in 1787. Any attempt to create just one would not have flown there. So constitution creates federal government with some powers reserved to it, but the rest are reserved to the state or to the people. So limited power government. In contrast, states have fairly large powers, so long as they are complying with constitution. Federal law prevails even if they are considered co-equal powers, article 6 clause 2: SUPREMACY CLAUSE: doctrine of preemption.
· 3- Protects individual rights from governmental action: precious few were there in the un-ratified constitution: habeas corpus, and protection to slave owners! They wanted all power to people so they didn’t want to put them there originally because they assumed it was there if it was not expressly given to government.
Role: Why have a Constitution: it’s foundational. Nothing above it. Hard to change and that’s the way the framers wanted it. 2/3 of house and senate plus ratification by ¾ of states. Ensures that certain rights will not be infringed by majorities. Way to protect from short term desires of majority over long term principles. So in essence it is anti-majoritarian and hard to change. The dead hand problem: why should we be beholden to the views of dead white propertied men who lived 200 years ago. Also, the fact that the unelected least democratically least accountable branch decides the issues is a point of contention.
Issues that will be raised in course:
· CON law combines doctrine with history and theory
· How does court handle doctrine?
· History: it’s a historical document so we need to understand where it came from. Periods of fundamental change and how did cases change history and vice-versa.
· What branch wins in a battle
· How do we interpret the constitution
So during semester:
· What is the doctrine
· What is the history
· What is the theory: what is the constitution and how should it be interpreted and read.
I. Powers of the National (Federal) Government
A. Judicial Powers
1. Judicial review and Supreme Court authority (CB 2-21, 26-29)
Marbury v. Madison: judicial review. Supremacy of constitution over any other law and Marshall says that it is the province of the courts to decide on the constitutionality of any law promulgated by Congress. Now, , Hamilton had already mentioned this very clearly in the Federalist paper 78. Should congress have the power to decide the constitutionality of their own acts? That, on its face, is absurd, so evidently the framers must have intended for judiciary to do it as part of checks and balances.
But also, Marshall says that the court decides what the nature of the executive act is (political or legal)and whether or not scouts will review it. The fact that the Supreme Court gets to decide the nature of the act is the set up of the system where SCOTUS checks on the acts of other branches. So, this is where he sets up the power to review the constitutionality of executive acts!.
So, some justification for Judicial review:
· This is what courts do all day, so they have to have the power to interpret the laws
· It’s a check on the legislature because they create the laws anyway and it would mean too much power in one branch
Criticism:
o Courts not elected and only five people (majority in scouts) get to decide what the law in this country is.
Supremacy clause: does it say who decides constitutionality? Nope! And after all everyone takes an oath to defend and uphold the constitution and thus everyone has a responsibility to decide on constitutionality.
Cooper v. Aaron: Dissegregation case in little Rock, AK where the governor and legislature basically thumb their noses at Brown v. Board of education, they’re not bound by the precedent of Brown. And in dicta in Cooper Scotus basically says, we are the law you will obey. The board and governor say that they are not disegregating because it has created chaos, and the court says you have to desegregate and the chaos is your fault! Thus case law by scotus became the law of the land as well as the constitution. Their job has become to say a law is not constitutional and to direct state officials to disegregate or follow any order. How democratic is it to have 9 people decide on the law of the land, especially when all you need is 5 of them to agree.
Marbury can be looked at as narrow holding or broad holding. Narrow reading would be that it is SCOTUS’ job to interpret the constitution, it is part of their function. We will only act in areas where we feel we have competence to act. A broader reading is that the SCOTUS has a broader job or role to interpret the constitution, judicial supremacy: it is the supreme guardian of the constitution, more so than the other branches.
They’re insulated from public because they’re not elected.
They’re weak: lack power of purse or sword
Area of expertise
They don’t make the laws. Congress cannot police itself
They’re there for life and their salaries are protected
Because of all these, they are indeed the best equipped to protect the constitution.
Debate between Learned Hand and Wexler. LH says that nothing in the constitution gives courts the right to review. He disagrees with the premise advanced by Marshall in Marbury. But as a practical matter, there are instances where we should exercise that power. More discretionary view. Wexler views it as embedded in the constitution and not discretionary, he sees it as a duty of the judiciary.
2. Justiciability Doctrine:
· A- The “political question” doctrine
· B-Prohibition on Advisory opinion
· C-Standing:
o Constitutional:
§ Personal injury or right being curtailed (injury). Two limitations:
ú Concrete and particularized
· Actual or imminent, not conjectural or hypothetical
ú Result of D’s conduct (causation)
ú Likely to be redressed by a favorable decision (redressability)
o Prudential: because these are not constitutional, there’s an assumption that these can be overridden.
§ No third party standing
§ No assertion of generalized or abstract grievances (these are best left to political branches of government).
§ Person must be within the zone of interest of the statute (what the law is supposed to be protecting, the class of people the law is supposed to be protecting)(Mostly administrative rules and seldom applied.)
§
· D-Timing: mootness and ripeness
· A- The “political question” doctrine
o B- (CB 31-48) Used in very rare circumstances Political question doctrine: deals with the subject matter of the case. Is the legal question within the power of the federal courts to decide. Some issues are political questions and are best left to the political bodies to decide. An example would be Gore v. Bush election. Should the claim have been resolved by court or by congress?
o Three strands:
§ Textually demonstrable constitutional commitmen:t Is it given by constitution to another branch
§ Lack of judicially discoverable and manageable standards: If there is no way for juciary to solve the problem: is there a way to manage the remedy.
§ Prudential strand. If it’s too awkard for the judiciary to get involved in the issue because it would be controversial or could create conflicts of lack of respect for co-equal branches.
o There are some areas that have historically been deemed political questions: Outline these for exam!
§ Apportionment issues, especially as they relate to article 4 section 4: guarantee clause: guarantees republican form of government.
§ Foreign relations: Treaties, when a war starts and ends, dignitaries, etc.
§ Ratifying amendments in Constitution.
§ Impeachment process.
o Why would it be good to have this doctrine:
§ They’re not elected and may not reflect the will of people
§ They may not have the expertise in an area left to other branches
§ They cannot enforce decisions and so if they go against executive, and it’s not enforced, they lose authority and power.
§ They are political appointees so they cannot ethically get involved in political issues where their leaning would influence the outcome.
o Why would it be bad:
§ Some say they are abrogating their duty
§ Because they’re not elected and have lifetime tenure, they can solve the tough questions without worrying about political capital
Colegrove v. Green: case in Illinois about a congressional districting scheme. Court argues that it is a political question and the House should decide this because it is a textually demonstrable constitutional commitment to that branch. Historically, up to Baker, the court has declined to get into this “thicket”.
Baker v. Carr: This was an issue of apportionment of the Tennessee General Assembly. The P’s claimed debasement of their votes under the equal protection amendment. They also claimed that because of that “unequal representation” that had not been changed since 1901, in spite of great population change, there was great difficulty in changing state laws and seeking redress. They sought an injuction of further elections until system was fixed or to decree apportionment. Ct holds that this is an issue they can rule on (not nonjusticiable) because it is not a political question and it does not rely on the guaranty clause of the constitution (article 4 section 4 guaranteeing a republican form of government.) They go on to identify how they determined in the past that a case presented a political question nonjusticiable by the court. They also claim that the questions of issues between different branches and the judiciary is what constitutes a political question, not between state government and the judiciary branch. The test is whether that power to decide the question has been given to a particular branch by the constitution (having to do with the appropriateness of the finality of their decision) and secondly whether there is satisfactory criteria for judicial determination. But the very act of determining this, has to be given to the court who is the sole authority on constitutional questions (who has the right to decide under the constitution). The court cites foreign relations as a matter they cannot decide on because the country must speak in one voice, but not every case involving this will mean the ct doesn’t decide. Other issues like how long an amendment remains open to ratification belongs to the legislature, especially because of the respect due other co-equal branches. Factors for determining whether question is political:
· Does the issue belong to a coordinate political department
· Lack of judiciable discoverable standards for resolving it
· Impossibility of deciding without an initial policy determination of non judicial discretion
· Impossibility of ct making determination without irrespecting other branches
· a political decision already made
· potential embarrassment from not speaking from one voice.
So guarantee clause was political because of these factors not because it enmeshed the court in issues of state government. Since this issue doesn’t get into that, we can rule over it. Ct also cites case of Luther v. Borden in 1849 where a case of trespass was decided for defendants law enforcement men who trespassed to arrest a person involved in widespread insurrection in Rhode Island. If ct had decided for P, it would have legitimized the other side claiming to be the legitimate government of RI, and the ct refused to do by ruling what was not theirs to do and only recognized the last charter gvm’t of RI that they knew. Those kinds of decisions rest with the legislature. At the end, since the ct cannot seem to find any of these factors involved in the Tennessee case, they determine that it is not a political question and that they have had plenty of experience with the 14th amendment to warrant a decision, so they reverse the decision of the lower ct and remand the case. The lower ct had denied the injuction and relief.
Dissent: Frankfurter and Harlan: ct has not gotten involved with state governments before and only exception has been negro dissenfranchisement and only because 14th amendment allows it. Court can only hear cases where P has standing, that is, a decision is required because it affects him directly, not because he wants a particular system of government to change. That needs to be done through legislature and it is a political question. Article 4 section 4 is not enforceable through the courts and this case, even though it invokes the 14th is not different from guarantee clause cases. There are many factors in deciding reapportionment and the judiciary branch is not the best one to get involved in a such a complex issue that the courts are not well equipped to determine. It will add virulent friction to the relationship between the judiciary branch and the states.