CONSTITUTIONAL LAW

Professor Nowlin, Section 1

Spring 2012

I. CONSTITUTION AND ITS ORIGINS

  1. Declaration of Independence
  2. British gov’t became despotic and violated its power.
  3. List of grievances shows how the British gov’t violated its power.
  4. List of grievances like the Bill of Rights b/c it’s a list of things gov’t can’t do, so foundational to the Bill of Rights.
  5. DOI sets out our ideals/values and basic principals at the heart of the Const.
  6. Major theme in DOI is federalism, so no surprise limited gov’t emerged.
  7. Important principles
  8. All men created equal w/ certain inalienable rights (life, liberty, pursuit of happiness).
  9. Ultimate guarantee of the protection of liberty is the civic virtue of the people.
  1. Scheme of Gov’t the Const. Creates
  2. Foundation – people (the sovereign).
  3. Purpose – natural rights, human rights.
  4. Form – republican representative democracy
  5. Limits (2 types of limits – structural and const. rights)
  6. Limits of Structure
  7. Bicameralism – founders felt legislature was most powerful branch, so split it up to weaken it and instill competition (Senate and House).
  8. Federalism
  9. Representative democracy – the way we structure elections/selections of public officers
  10. Juries – a method of weakening judicial branch.
  11. Separation of powers ensures checks and balances. Power is not concentrated, but is diffused among the state and federal, different branches, two houses, etc.
  12. Interrelation – Limits on structure and individual rights may interrelate.
  13. Ex: Right to jury (judiciary is here to protect that right).

II. JUDICIAL POWER

  1. Judicial Review and the Principles of Fed’l Gov’t
  2. Power of the SC to interpret laws; if laws conflict w/ Const., have power to declare unconstitutional.
  1. Tocqueville
  2. Maintained judges/lawyers comprise a type of aristocracy or “juristocracy.”
  3. Anti-populist (elitist) reply – lawyers should have this much power b/c the people who know most about the law should be ruling
  4. Test hint – note whether an argument is populist or anti-populist.
  1. Texas v. Johnson (anti-populist decision)
  2. Statute criminalizing flag burning deemed unconstitutional.
  3. Cannot punish for burning a flag, but most Americans agree w/ dissent.
  4. Brennan (majority) – Burning done to communicate political message, which is protected as free speech. The statute prohibits the message (not the act), so it violates free speech.
  5. Dissents
  6. Statute didn’t suppress free speech b/c D allowed to use other forms of protest or say anything he wanted.
  7. Flag is an intangible asset that should be protected. You can’t vandalize the Lincoln Memorial, so you shouldn’t be able to burn the flag.
  1. Marbury v. Madison (established judicial review)
  2. Facts
  3. Judiciary Act – Gave SC original jurisdiction over issuing writs of mandamus.
  4. Marbury selected as a justice of the Peace by Adams before he left office. The commission was sealed and signed, but never delivered. Madison, as Secretary of State, was told by President Jefferson to withhold the commissions. P brings writ of mandamus under the Judiciary Act.
  5. Judiciary Act unconstitutional b/c violates Art. III, §2, which sets out the types of cases SC has original jurisdiction over. Writs of mandamus not on the list.
  6. There is a right to the commission and a remedy, but this court cannot provide a remedy b/c no jurisdiction.
  7. Majority’s Arguments
  8. Constitutional supremacy – SC can’t be granted powers by Congress that conflict w/ the Const.
  9. Supremacy Clause (Article 6, §2)
  10. Judicial power to review– SC has power to interpret the Const.
  11. Separation of Powers (main argument)
  12. It’s the province/duty of judiciary to say what the law is.
  13. Art. 3, §2
  14. Gives judiciary jurisdiction over cases “arising under” the Const.
  15. Original Jx = hearing a case as matter of 1st instance
  16. Appellate Jx = hearing a case being appealed
  17. Being able to hear the case, but not resolve the conflict b/t the Const. and the statute would make no sense, so this article gives rise to judicial review.
  1. Judicial oath to uphold Const.
  2. Not declaring conflicting law unconst. would violate oath of office.
  3. Not a good argument b/c all public officials take oaths.
  1. Constitutional Interpretation – 4 Setups
  2. Legislative Supremacy
  3. Congress has final authority to determine meaning of Const.
  4. Supported by few, rejected in Marbury.
  5. Executive Supremacy
  6. No support
  7. Judicial Supremacy
  8. SC is supreme in its explanation of the Const.
  9. Very close to what we have today.
  10. Counterarguments (under departmentalism view)
  11. Separation of powers – all branches meant to be equal.
  12. Settlement Thesis(from McCulloch – only judicial branch can settle peacefully/quickly – judicial supremacy limits hostility b/t other branches) – bad b/c settlement at the expense of other 2 branches is judicial tyranny; discussion/debate are good.
  13. Article III means judicial review, not supreme judicial review.
  14. If founders meant court to have such tremendous power, they would’ve written it down.
  15. Const. limits the SC and it should respect those limits.
  16. Departmentalism (Coordinate Review) – all 3 branches equally share power.
  17. Marbury is consistent w/ judicial supremacy and departmentalism.
  18. Departmentalism doesn’t eliminate judicial review, just makes it only appropriate in its own sphere.
  19. Methods of Const. Interpretation
  20. Text, original understanding, judicial precedent, policy/philosophical arguments, structural logic, social consensus, tradition.
  21. Hamilton in Federalist 78
  22. SC and Congress are on the same level, but the Const. trumps statutes, so if there is a conflict, the ct. may invalidate the statute b/c the Const. was created by the people and Congress was elected by the people.
  23. Congress has will – power to create law. SC has judgment – power to interpret and apply law. SC may only exercise its judicial power.

JUDICIAL POWER: National Judicial Supremacy (federal cts. v. state cts.) – Interpretation of the Const. rests solely w/ SC.

  1. McCulloch v. Maryland
  2. Even though the Const. doesn’t expressly grant Congress the power to incorporate a bank, it can do so under the doctrine of implied powers.
  3. Necessary and Proper Clause explicitly states the notion of implied powers.
  1. Doctrine of Implied Powers
  2. Provided in the Necessary and Proper Clause.
  3. Fed’l gov’t can act only where it’s authorized by the Const., but authorization doesn’t have to be explicit.
  4. This doctrine allows fed’l gov’t (esp. Congress) to validly exercise power that is ancillary to one of the powers explicitly listed in the Const. (so long as it doesn’t conflict w/ specific Const. prohibitions).
  5. Creation of a corporation can be implied b/c the Bank of the US is convenient, useful, and essential to fiscal operations of gov’t.
  6. MD can’t tax the gov’t for the bank.
  7. Taxing this bank is taxing other states b/c it’s a fed’l bank.
  8. The power to tax is the power to destroy.
  9. Supremacy Clause – MD tax is invalid b/c interferes w/ exercise of valid fed’l activity.
  10. Marshall (majority) – “by this tribunal alone” can this question be decided.
  11. Marshall supports national judicial supremacy here.
  12. “Settlement thesis”
  13. Only judiciary branch can settle these issues peacefully/quickly. This limits hostility b/t branches and gives one answer to promote const. stability.
  14. New argument supporting judicial review (separation of powers, Art. 3 “arising under”, and judiciary oath).
  15. But departmentalists say discussion and debate are good.
  1. National Supremacy v. State Supremacy and Federal Departmentalism
  2. National Supremacy
  3. States are supreme of state constitutions, so fed’l gov’t should be supreme over US Const.
  4. Separation of Powers – National gov’t should answer questions of constitutionality b/c
  5. State legislatures are less competent
  6. State legislatures don’t have the power to perform judiciary functions.
  7. Settlement Thesis
  8. National gov’t better equipped to interpret b/c if states are given that power, there may be 50 different interpretations.
  9. National supremacy ultimately won out.
  1. State Supremacy – generally rejected
  1. Federal Departmentalism
  2. States have power to determine the constitutionality of federal laws w/in their boundaries; the national gov’t would have the power in DC and other federal territories.
  1. Federal departmentalism is also known as...
  2. Nullification (State Constitutional Review) – when the state asserts the right to nullify a federal law it thinks is unconst.
  3. Killed out in the 1960s.
  4. Interposition – when state interposes its political authority b/t the unconstitutional acts of the national gov’t and their citizens
  5. State Constitutional Review – state conventions sit in and determine if acts of the national gov’t are unconstitutional.
  6. Arguments for federal departmentalism
  7. US Const. is a contract b/t state gov’ts. When the entity created by the contract does something it shouldn’t, the members of the contract get to decide how to deal w/ it.
  8. Nullification is parallel to actions taken against the British gov’t (centralizing power in the national judiciary is tyranny).

JUDICIAL POWER: Judicial Activism vs. Judicial Restraint

  1. Calder v. Bull (natural law)
  2. Predates Marbury (since early history, justices applied different tools to interpret the Const.).
  3. Justices Chase and Iredell disagreed on the role of natural law in constitutional interpretation.
  4. Justice Chase – any legislature that goes against our values is wrong and it is up to the court to declare it void, even w/o a constitutional provision that authorized the court to do so (judicial activism).
  5. Justice Iredell – the very fact that the Const. was written down, authorizing or prohibiting certain acts, means the court doesn’t have authority to tell Congress what to do (judicial restraint).
  1. Judicial Activism(Justice Chase) (liberals)
  2. Loose constructionists who do more and are more flexible.
  3. Sources include text, precedents, popular values, policy, recent legal traditions, and natural law.
  4. Justice – moral conception of justice, individual rights.
  5. Exercise substantial amount of political discretion in determining the meaning of constitutional provisions.
  6. Motivational force behind judicial activists – concerned w/ gov’t violations of individual rights and distrust of ordinary politics as a means of protecting those rights.
  1. Judicial Restraint (Justice Iredell) (conservatives)
  2. Strict constructionists who do less and seek precedents; more rigid.
  3. Sources include text, precedents, original understandings/intent, and legal traditions.
  4. Emphasis on stability, constitutional structures that limit courts, law.
  5. Minimize their political discretion.
  6. Concerned w/ judicial actions in tension w/ constitutional values.
  7. Distrust of the judiciary as a legitimate and competent institution for resolving important political decisions – should be left to political process, where policy makers have greater accountability.

JUDICIAL POWER: Historical v. Living Constitution

  1. This contrast is a sliding scale.
  1. Living Constitution (liberals)
  2. Emphasize evolving legal traditions, policy judgments, consensus values, and probably precedent.
  3. Connected w/ judicial activism.
  4. Judges might need the flexibility to adapt b/c the amendment process is very complicated.
  5. Perhaps the separation of powers was meant to allow for the judicial role of being able to flexibly interpret the Const.
  6. Pros
  7. Maybe founders intended for it to be a living Const.
  8. Reflects current practice.
  9. Has been used to expand our rights.
  10. Allows us to adapt.
  11. Cons
  12. Too much political input.
  13. Const. doesn’t constrain properly.
  1. Historical Constitution (conservatives)
  2. Emphasizes text, original understanding, and precedent.
  3. Connected w/ judicial restraint.
  4. Respects political process; pro-democracy.
  5. Helps to protect minorities that might not be sufficiently represented in the political process.
  6. Separation of powers – let legislature make the laws.
  7. Pros
  8. Stable, predictable.
  9. Relies on legal material, not political whims.
  10. The Const. restrains.
  11. Possible horrible things could be upheld under a living const. that wouldn’t be upheld under this const.
  12. Cons
  13. Dead-hand control.

JUDICIAL POWER: Checks on the Judiciary: Power of Reprisal (Political Control over SC)

  1. Constitutional Amendments
  2. Art. 5 – 2/3 of both Houses propose the amendment. No amendment adopted until ratified by 3/4ths of the states.
  3. Jefferson–Const. should be rewritten every generation and involve the masses in the political process.
  4. Madison – rejected Jefferson’s view b/c violent struggle b/t the parties; should value stability and structure.
  5. Moderate view – Const. should be amended to remedy serious defects.
  6. 4 Amendments were made in reaction to SC holdings
  7. 11A – limits jurisdiction of fed’l courts to hear suits brought against states.
  8. 14A – deems African Americans to be citizens.
  9. 16A – expands power of Congress to tax.
  10. 26A – sets voting age.
  1. The Power to Appoint Judges
  2. President (executive branch) appoints w/ the senate’s advice and consent.
  3. Very large power, but impossible to predict a justice’s actions on the bench.
  4. Effective, but spotty b/c many judges change their minds.
  1. Impeachment
  2. Very high standard for impeachment.
  3. Largely ineffective b/c judges know they won’t be impeached unless they commit a crime.
  1. Life Tenure
  2. SC judges serve for life in an effort to promote judicial independence.
  1. Controlling Sitting Judges
  2. Judges are sensitive to political pressures.
  3. Courts respond to public opinion – don’t want to depart too far from political consensus.
  1. Exceptions Clause(Art. 2, §2) (jurisdiction stripping)
  2. SC will have appellate jurisdiction w/ such exceptions and under such regulations, as Congress shall make.
  3. Some argue congress has power to strip SC of rights, but SC says no such power.
  1. Ex parte McCardle
  2. D invokes habeas corpus procedure pursuant to an act, but it was repealed by Congress after the hearing and but before the final decision. Congress repealed the portions of the act that permitted the appellate jurisdiction, so case dismissed.
  3. Issue – if court has jurisdiction
  4. Jurisdiction for SC is provided in Art. 3 and subject to exceptions and regulations as Congress shall make.
  5. Here, Congress removed jurisdiction previously granted.
  6. D loses b/c he doesn’t invoke the right habeas corpus statute.
  7. Scope of Exceptions Clause
  8. Plenary power view – Congress has unlimited power to restrict SC’s power in appellate jurisdiction cases.
  9. Essential function view – Essential function of SC is to interpret Const.; there are limits on Congress’s jurisdiction stripping power so as to preserve SC’s function of interpreting.
  10. Paths from lower courts up to SC – Congress can eliminate some, but can’t impair the court’s ability to interpret constitutional issues.

JUDICIAL POWER: Case or Controversy Requirements and Justiciability – “Judicial power shall extend to enumerated Cases and Controversies” (Art. 3, §2)

  1. Judicial power only extends to cases and controversies – stems from an implicit reading of Art. 3§2.
  2. SC has no power to issue advisory opinions (ruling on a hypothetical) b/c Article 3 says the court can only decide cases/controversies.
  1. Policy behind limiting SC power to cases and controversies
  2. Conserve resources for efficiency.
  3. Judicial restraint – separation of powers and federalism – while SC might have power to interpret the Const., it doesn’t have that power at all times.
  4. Soundness of decisions – when we have a true controversy, the adversarial situation will bring out the best, concrete arguments.
  5. Fairness to the most interested/affected parties – people who are not really interested may settle, and those affected won’t be treated fairly.
  1. Justiciability Doctrines (standing, mootness, ripeness, and political question) – term of art expressing the case or controversy limitation.
  1. Standing
  2. Each litigant must have standing to be entitled to have the court decide.
  1. Allen v. Wright (establishes a direct personal injury as a standing requirement)
  2. Case dismissed b/c parties didn’t have standing.
  3. IRS granted tax exemptions to private schools that discriminate.
  4. AA child who applied to the school and was actually excluded might have had standing, but just a class of AA parents sued.
  5. Requirements of Standing
  6. Injury in Fact – party suing must be actually injured by the law in question; must be individualized too.
  7. Allen
  8. Citizen Standing Argument(i.e. every citizen is harmed when gov’t doesn’t follow the law) fails b/c it’s not individualized.
  9. Class Standing Argument (i.e., AAs are being discriminated against so they should have standing) fails b/c not individualized.
  10. Impairment of Desegregation Argument – Racial imbalancesin desegregated schools caused by gov’t here so there is an injury in fact to parents forced to send their kids to the public schools that aren’t really desegregated b/c the white kids go to the segregated school. This is injury in fact.
  11. Causation – “fairly traceable”
  12. Allen
  13. No proximate cause b/t racial imbalance and tax exemption (no stats, etc.), so no standing b/c no causation.
  14. Reddressable by the court – must be able to issue a remedy (this requirement usually fails under the causation requirement).
  15. Prudential Standing – court may have constitutional standing, but may choose to not hear it as a prudential matter.
  16. Prudential limits are self-imposed restraints on the court to promote policies created by justiciability.
  1. Political Questions
  2. Constitutional questions not for judicial resolution, but typically by executive and/or legislature.
  3. Guaranty Clause (Art. 4§2)
  4. Promises citizens of states a republican gov’t, not a monarchy.
  5. In 1840’s, SC decided this clause creates only political questions.
  6. It needs to be enforced, but only by the President or Congress.
  7. Luther v. Borden – Two groups (RI and a rebellion) claiming power to Rhode Island.
  8. “If any department was empowered by the Guaranty Clause to resolve this issue, it was not the judiciary.”
  1. Baker v. Carr
  2. Population grew, so voters bring suit challenging apportionment of elected officials assigned to districts.
  3. Brennan - Factors to determine if it’s a political question
  4. If there is a need for policy determinations that are outside the judiciary scope, indicates it belongs to another branch.
  5. Is there a “textually demonstrable” constitutional commitment of the issue to the political branches of resolution?
  6. Is there a lack of adequate standards for judicial resolution of the issue?
  7. If there’s no way to make a decision w/o disrespecting other branches, it’s political question.
  8. If there’s a need for strict adherence to political decisions already made (appropriateness of attributing finality to actions of other branches).
  9. If there’s a potential for multiple decisions (embarrassment).
  10. Historically political questions – foreign policy (war) and internal operations of political branches (impeachment).
  1. Ripeness
  2. Can’t bring a case too soon (linked to standing).
  3. A case is non-justiciable if it isn’t ripe.
  4. If the court feels there may be standing in the future, but the timing isn’t right, it will apply the ripeness doctrine.
  5. If there is prosecution, the case is ripe.
  6. If there is only a threat of prosecution, it may or may not be ripe.
  7. If there is no prosecution, it is not ripe.
  1. Mootness
  2. Can’t bring suit too late.
  3. Ex: Settling creates a moot case.
  4. Ex: Withdrawing of a law by Congress may moot a case if the court chooses.
  5. Ex: If criminal D dies, it’s moot.

III. EQUALITY AND THE CONSTITUTION