Constitutional LawKelso, Summer 2002

Introductory Notes

  1. Sources of Interpretation
  2. Text

--Present sense of the words of the provision

--Starting Point

--Is there relevant text in the Const. for the case? Sometimes no.

1.Literal Meaning: ordinary, dictionary meaning

2.Purpose: what did the Framers intend?

  1. Context

1.Related Provisions: some judges want to read the Const. as a whole to keep it consistent. Some judges read a passage individually without regard to consistency.

2.Federalism: how much power does the fed have? State?

3.Separation of Powers: keeping power balanced

  1. History

--Attempt to discover the authorial intentions behind any constitutional provision

--Looking at other documents of the time, like the Federalist Papers, which were used to convince voters to ratify the Const.

1.Specific: papers right on point

2.General: general approach of framers as described from other documents of the time

  1. Practice

1.Later legislative or Executive Practice: how Congress acted when making legislation. Also, the president signs it. So the Congress and president presumed it to be constitutional. Judges pay respect to the views of Congress and president. The president has leeway in how much power they have. Congress will usually agree or disagree. Judicial branch will determine if president overstepped constitutional boundaries.

  1. Precedent

1.Core Holding: specific decision on specific issue and not paying attention to dicta

2.General Reasoning: general understanding of the whole opinion.

--When should precedence be overruled? Different judges have different opinions.

  1. Policy: most controversial. Judges interpreting based on their own views of what the Const. should be. Some think this is bad and is “judicial activism.” Some think policy can break the tie between text & context vs. practice & precedence.
  1. Jurisdiction of the Supreme Court
  2. Per Judiciary Act of 1789

1.Exclusive: State vs. State, Ambassador

2.Non-exclusive: State vs. Citizen, State vs. Noncitizen, State vs. Alien, Ambassador as Π

  1. Per Article III

1.Original: Ambassador, Public Minister, State as party

  1. Cannot be changed by Congress

*Ambassadors and public ministers are assumed to be foreign, per history and purpose of

text

2.Appellate: All other cases.

2 methods for invoking SCt review

  1. Appeal (mandatory jurisdiction)
  2. writ of certiorari (discretionary review where 4 justices vote to hear the case)
  1. History of the Court

1873 – 1937 / Text
Context
History / Existed at time of Ratification / Formalist
1937 – 1954 / Practice / After Ratification / Holmesian
1789 – 1873 / Precedent / Natural Law
1954 – 1986 / Policy / Insturmentalists
(’63 to ’69: strongest)

*1986 to present: split court, not one theory to follow

  1. Types of Interpretative Theories
  2. Natural Law Approach: a.k.a. common law approach: most respect is given toward precedence, but look at all sources except policy
  3. Formalists: fixed/static meaning of the Constitution. They look at stuff from the time.

1.appointed by Republicans: in favor of Presidential power

2.appointed by Democrats: in favor of congressional power

  1. Evolving: evolving meaning of Const. over time.
  2. Holmesian Approach: predominant theory was to respect practice as well as text, context, and history

1.appointed by Republicans: deference to states

2.appointed by Democrats: deference to fed

  1. Instrumentalist: All of it should be considered to help it evolve and be a more just document. Law is an instrument to achieve social justice.
  1. Current Judges (blues vote together; greens vote together; reds are wild cards)
  2. Formalists

1.Scalia

2.Thomas

  1. Holmesian

1.Rehnquist

  1. Natural Law

1.O’Conner (leans toward Holmesian sometimes)

2.Kennedy (leans towards Formalists sometimes)

3.Souter (leans towards Instrumentalists sometimes)

  1. Instrumentalists (not the ’63 to ’69 types of Instrumentalists)

1.Breyer

2.Ginsburg

3.Stevens

Chapter 1: The Federal Judicial Power

  1. Judicial power comes from Art III §1 “Judicial power of the United States shall be vested in one Supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish.”
  2. Scope of Judicial Power: Art III §2
  3. Cases arising under the Constitution
  4. Cases affecting ambassadors, public minister and consuls
  5. Cases affecting admiralty and maritime jurisdiction
  6. Cases with US as a party
  7. Cases between 2+ states
  8. Cases between state and citizen of another state
  9. Cases between citizens of different states
  10. 11th Amendment: prohibits citizens of one state from suing their own state or another state in federal court without the state’s consent
  11. Towns and counties do not have immunity from suit under 11th amendment
  12. Does not bar suits against state officials either
  13. The Authority for Judicial Review
  14. Judicial Review: the power of courts to declare legislation or executive acts invalid as unconstitutional
  15. The Constitution doesn’t say if federal courts can do judicial review; it’s treated as an implied power
  16. Marbury v. Madison, 1803: establishes the authority for judicial review of federal executive and legislative acts. Established authority for judiciary to review the constitutionality of federal executive and legislative acts even though Art. III never expressly grants power to review this.
  17. Questions the court answered:
  18. Did Marbury have a right to his commission? Yes. Marbury’s commission was complete upon its signing by the President.
  19. Did Marbury have a judicially enforceable remedy? Yes. “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.”
  20. Was Marbury entitled to mandamus from the Supreme Court? No. Supreme Court lacked original jurisdiction over his case. Per Judiciary Act of 1789 §13, Marbury should have started in lower court and worked his way up.
  21. Justifications for Judicial Review
  22. it is an inference from a written constitution
  23. it is a necessary aspect to the judicial role of interpreting law
  24. it is implied from the Supremacy Clause that the Constitution is the supreme law of the land and is to be binding on state courts
  25. it is implied from the fact that Art. III gives the federal courts jurisdiction over all cases arising under the Constitution
  26. it is implied in the fact that judges take an oath to support and uphold the Const.

* There is no precise literal text of Judicial Review. The theory of Judicial Review is becoming popular throughout western world countries. At the time of Marburyv. Madison, though, it was a novel idea. There’s now 200 years of precedence supporting judicial review.

  1. Effect of Marbury
  2. Creates the authority for judicial review of executive actions
  3. Establishes that Article III is the ceiling of federal court jurisdiction, i.e. Congress can’t authorize federal courts to hear cases beyond what is specified in Art. III and federal courts cannot gain jurisdiction by consent
  4. Establishes the authority for judicial review of legislative acts
  1. Practical Consequences of Judicial Review
  2. The Court will not formulate a rule of constitutional law broader than necessary by the facts of the case
  3. The Court will not decide the constitutional issue if the case can be decided on some other ground
  4. The Court will not decide constitutional challenges to statutes brought by people who have taken advantage of the statutory benefits
  5. The Court will attempt to construe statutes, if possible, to avoid a conflict with the Constitution
  6. Authority for Judicial Review of State Judgments
  7. Martin v. Hunter’s Lessee: Granted SCt’s authority to review state court judgments. Supreme Court may review the decisions of the highest state court on matters of federal law (but not on issues of state law).
  8. Art. III grants the Supreme Court appellate jurisdiction over all cases arising under the Const. including those that arise from the state courts
  9. There is no state sovereignty over constitutional interpretation. State judges are bound by the Const.
  10. Supreme Court review of state constitutional decisions is necessary for uniformity
  11. Structure of Const: Congress can create lower federal courts, and if they don’t and SCt can’t hear state cases, then SCt wouldn’t have much to do.
  12. Uniformity is necessary for the power of federal government and its courts
  13. It would be bad social policy to allow so many different interpretations
  14. State interests may effect some interpretations. State jealousies were common at the time of drafting and the framers wanted to get rid of that
  15. Cohen’s v. Virginia: criminal defendants can seek Supreme Court review when they claimed that their conviction violated the Const.
  16. SCt is final interpreter of Const in criminal cases
  17. No federal court has any power to review state court decisions that are entirely about state law
  18. Who has the power to declare something unconstitutional? Supreme Court
  19. The Const. is superior over all else. This conclusion is from:
  20. Provision in Constitution that Congress, judges, and president take oaths to defend Const.: this suggests superiority of Const.
  21. Judicial branch is to determine what the law is—separation of powers argument
  22. In England, judges cannot strike down an act of Parliament they consider unconstitutional because they don’t have a constitution
  23. The Const. is used to limit the powers of the branches. Judicial branch checks legislature.
  24. Other related provisions suggest that courts are to limit power of legislature and enforcing Const. processes.
  25. Dual Theory of Sovereignty
  26. States and federal government are separate, yet are connected in some ways
  27. States are neither completely sovereign nor completely under federal government
  1. Limits on the Federal Judicial Power
  2. Interpretive Limits: raises the question of how the Const. should be interpreted.
  3. Supreme Court can’t make up what Const. says. It has to be grounded in reasoning. Text, history, etc. put limits on interpretation
  4. Formalists: stick with original meaning of Const.
  5. If no text, they say that legislature (without restriction from Ct.) should decide law
  6. Believe Const. should evolve only by amendment
  7. Non-Formalists: evolving interpretations
  8. If no text, they say Ct. should interpret Const. to protect rights that are not expressly stated or clearly intended
  9. Believe Const. should evolve by amendment and interpretation
  10. Tradition = Practice
  11. Values = Policy
  12. Natural Law = Precedence
  13. Kelso thinks the original intent of Framers was to involve precedent and practice
  14. Congressional Limits: Refer to the ability of Congress to restrict federal court jurisdiction
  15. Article III of Const. says Congress can restrict jurisdiction of all federal courts, including SCt., but with limits
  16. Power to Establish Federal Courts: Congress can make inferior courts if they want
  17. Exceptions to and regulation of SCt. Appellate jurisdiction: SCt. has appellate review of all cases within federal judicial power except
  18. Original jurisdiction cases (Congress can’t touch O.J. cases)
  19. with Exceptions and under Regulations Congress makes
  20. Judges can be impeached by majority of house, 2/3 of senate to convict and remove
  21. Ex Parte McCardle, p. 22 in book, p. 18 in outline
  22. Congress may make “exceptions” to the SCt’s appellate jurisdiction, even if it is a pending case.
  23. Can Congress tell SCt not to hear a case? Yes. Literal text is clear, so the analysis is done there
  24. It is rare for Congress to do this, but they can, so long as they do it consistent with the Const.
  25. Felker v. Turpin, 1996
  26. Literal text interpretation of Art. III, §2 upheld
  27. Separation of Powers argument (to limit Congress’ power to do this) may work, but it hasn’t come up, because Congress rarely uses this power
  28. United States v. Klein, 1871
  29. Congressional action is not a matter of jurisdiction. Congress is trying to change the meaning of presidential pardon. That’s substantive. Per Marburyv. Madison, it’s up to court to determine substantive issues—though they may look to Congress for guidance. Congress can’t force on the Supreme Court what the Const. means
  30. Justiciability Limits: refer to a series of judicially created doctrines that limit the types of matters that federal courts can decide
  31. Case or Controversy Requirement: a mere dispute may not work;it has to be something that can be a case
  32. Plaut v. Spend Thrift Farm, 1995: Congress may not direct courts to relitigate a federal judgment that has become res judicata with respect to the parties
  33. Once SCt has made a final judgment, Congress cannot reopen the case. They can, however, change the law for future cases
  34. Prohibition of Advisory Opinions
  35. An advisory opinion is not a case. It’s just asking the court what something means. SCt. only hears things that are not cases. Other courts may give advisory opinions, or Atty Gen office can, but federal courts cannot.
  36. Standing, outline p. 21
  37. Constitutional Standing Requirements
  38. Injury in Fact: actual injury—not a future injury unless certain
  39. Causation: Injury caused by the conduct you’re challenging—must be a connection between the complaint and the injury
  40. Redressability—Court can provide relief—if not, no case
  41. If you can prove causation, it’s redressible. So b and c go together
  42. Nexus approaches to Π claims: all rejected by court for being too general
  43. Ecosystem Nexus: Π says America’s ecosystem is effected by all changes in other ecosystems
  44. Animal Nexus: Π says people with general interests in an animal may bring a suit
  45. Vocational Nexus: Π says people with professional interest in animal can bring a suit
  46. Case Law
  47. Generalized Grievances won’t work
  48. Injury must be distinct and palpable
  49. There must be a certain enough chain of causation
  50. Lujan v. Defenders of Wildlife, 1992
  51. Congress can’t give citizens the right to ensure the law is right. That’s the president’s job.
  52. See concurrence in outline
  53. Causation
  54. Case Law
  55. Π has the burden of proving the injury
  56. Causation must be proven
  57. Kennedy and Souter are wild cards on these cases
  58. Prudential Standing Requirements: these are things that will keep the court from hearing a case. These are not specified by the Const.—they are things that the court made up. Congress can change what the court does under a prudential principle. Congress could also do away with prudential principles.
  59. Generalized Grievances: not distinct enough to be a generalized grievance
  60. If there is an injury common to all members of the public, court says to lobby and get a change through Congress
  61. Exception: Flast v. Cohen, 1968 (Instrumentalist majority) it is only applicable in its narrow facts:
  62. 2 part nexus test (p. 62)
  63. taxpayer suing under taxpayer clause
  64. taxpayer should show the enactment exceeds constitutional limitations
  65. General Reasoning ignored today. Core holding is all that is recognized
  66. Dissent says this is a generalized grievance
  67. Zone of Interest (see outline p. 22)
  68. Tests (none left today)
  69. Constitutional Cases
  70. Flast test has pretty much gone away
  71. Statutory Cases
  72. Court will say that you are in the zone of interest to be protected by the doctrine—specialized person. This test has pretty much gone away too.
  73. Third Party Standing
  74. Allowed if there is a special relationship between Πand the 3rd party and if there are obstacles keeping the 3rd party from bringing the suit themself.
  75. Special Cases (not on exam)
  76. Equitable Relief Considerations (not on exam)
  77. Ripeness: even if there is standing, other categories should be met
  78. Has both components: Article III Component and Prudential Component
  79. 2 factors to determine if a case is ripe enough
  80. How certain is it that the future injury will occur? Is it significant enough? Poe v. Ullman, p. 67
  81. If there is no immediate need to rule, not ripe
  82. Court is unlikely to consider a possible administrative fine ripe, as opposed to a criminal prosecution
  83. Legal issue instead of factual issue. If underlying issue is legal, it can be argued now. No reason to wait for ripeness. Abbott Labs v. Gardner, p. 69
  84. Mootness, p. 71
  85. Has both components: Article III Component and Prudential Component
  86. Exceptions to Article III, even if the case looks moot
  87. Recurring issue, yet capable of evading ordinary review
  88. Voluntary cessation, but could recur
  89. Class action lawsuits
  90. Collateral consequences (in outline): main part of lawsuit gets solved, but minor injuries exist
  91. Prudential component
  92. Court may still not hear the case if too small of a consequence
  93. Remember, Congress can reverse prudential stuff
  94. The Political Question Doctrine, p. 76 in text, p. 24 in outline
  95. The Political Question Doctrine Defined: If something is a political question (PQ), Congress or president should determine it—not the federal court, therefore, no court should decide it.
  96. 6 Things to look at to determine if something is a political question or not
  97. Text. Is there text that suggests strongly that it’s not up to the courts to decide?
  98. Separation of Power. Judicially manageable standard: what’s the role of the judiciary? If there aren’t any standards and it would be difficult to make them, how is a judge to determine it?
  99. Separation of Power. Need for non-judicial discretion if there is a need it should not be up to the judges
  100. Lack of Respect
  101. Need for finality
  102. Embarrassment

The first 3 are given the most weight. The last three are hard to characterize and are used as tie breakers.

**Apply these on exam. (mostly 1-3)

  1. Pros: SC can avoid controversial issues, allocate decisions to areas of govt that have expertise in that area, fed cts self-interest disqualifies them from ruling in certain areas; supports separation of powers
  2. Cons: inappropriate to leave Const questions to other branches.
  3. The court is more likely to say that things from these subject matters are political questions
  4. Foreign Affairs
  5. Matters of War
  6. Political Arrangements
  7. Aspects of 10th Amendment
  8. Luther v. Borden p.77: The Guarantee Clause presents a nonjusticiable PQ.
  9. Baker v. Carr, 1962, p. 78
  10. Equal Protection is NOT a PQ.
  11. Holmesian dissent says to defer apportionment questions to the legislature
  12. P. 79 provides a laundry list of reasons to impose PQ Doctrine—questionable as to how helpful this really is.
  13. Congressional Self Governance p. 81
  14. Powell v. McCormack, 1969: judge qualifications: Can Congress add on additional qualifications than those listed in the Const.? Is this a PQ? Court says it is not a PQ and says that additional qualifications can’t be added.
  15. States cannot add qualifications either, such as term limits. US v. Thorton
  16. Foreign Policy
  17. Goldwater v. Carter, 1979. Text is clear about ratifying treaties, but not rescinding them. Can Prez. alone rescind a treaty or must Senate be involved? Court says they don’t know… it’s a PQ
  18. Impeachment and Removal
  19. Nixon v. US, 1993. It is not up to the court to determine how Senate tries impeachments. Text says “sole power” of Senate.

Chapter 2: The Federal Legislative Power