Outline
Wednesday, August 20, 2008
10:02 AM
1. Limits on Judicial Power–The Judiciability Doctrines
A. Introduction
i. Separation of Powers Serves THREE GOALS (applied to Marbury):
1. Ensuring Legitimacy –> Judicial review cements legitimacy of a “government of laws” when it provides institutional check on government actors
2. Preventing Tyranny
3. Promoting Efficiency –> desire to make federal government more efficient
B. Federalism Limits on Federal Courts:
i. Federalism –> process for allocation of governmental power b/w national government and states
ii. Four Core Values of Federalism:
1. Ensuring Legitimacy
i. Generally, something going on in state and there is accusation that they are violating federal rights
§ Sup. Ct. can either validate or invalidate what state has done
ii. States will always argue laboratories of democracy as legitimate exercise of state’s police powers
2. Preventing Tyranny
i. Federalism promotes democracy and prevents tyranny
ii. Opportunity to be more involved in politics at local level and there is inherent value to participation
iii. Local govt is easier to organize and coordinate
iv. Federalism prevents tyranny by breaking monopoly on power between two different sovereigns
v. if you are a state’s right activist, you may not want federal review of state practices
3. Promoting Efficiency –> effectiveness of both of both federal/state government
i. Certain things can be handled more efficiently by state government and other things might be better dealt w/ by federal government
ii. This value ties into many of the other ones.
iii. Different circumstances in different states requires different solutions
· the effectiveness of both state/federal government
· Certain things can be more efficiently handled by state government and some other things might be better dealt w/ by federal government
Size of union makes it better to have some smaller units for regulation
Economic problems of one area can be addressed w/ resources from another area easily
Laboratories of Democracy –> federal form serves as a laboratory for state to try novel social and economic experiments w/o risk to the rest of the country
States as laboratories for social programs – more potential solutions
Labs of Democracy allow for exercise of state police powers
Signaling function: we want states to experiment since other govts can learn from it and this will end up benefiting all. Some things are too risky on the national level
Procedural Due Process:
Procedural Due Process [Definition] –> Our fundamental guarantee of fairness, our protection against arbitrary, capricious, and unreasonable government action
Analysis of Procedural Due Process (Steps) –> must begin w/ state action
First, there has to be a deprivation of life, liberty, or property by government (state or federal)?
· Liberty interest –> right to marry, right to work, etc. (i.e., more than freedom from constraint) [liberty definition on page 900; II]
· Property interest –> Constitution does not give property interest but it protects it
§ Property interests derived from state/federal law; interests also come from understanding of parties (see Perry v. Sindermann; page 909)
If life, liberty, property interest is there –> was there due process of law?
· Notice?
· Opportunity to be heard/respond?
Generally –> there is a property interest requiring due process if there is an entitlement
Two Possible Alternative Ways of Defining When There is Entitlement:
Entitlement defined based on importance of interest to individual (i.e., some cases found property interest b/c of crucial significance of interest in person’s life)
Entitlement defined as a reasonable expectation to continued receipt of a benefit (i.e., entitlement depends on whether the law creates justifiable expectation that benefit will be received in the future)
Three Basic Elements:
Was there a Deprivation?
· A deprivation of due process exists only if there is an allegation of an intentional violation by government or government officers (i.e., deprivation must be more than a negligent act on part of government)
· Exception –> in emergency circumstances, the government can be held liable only if its officers’ conduct shock the conscience (i.e., officers acting w/ intent of causing harm to victim)
Of life, liberty, or property
· Until last quarter century, Sup. Ct. has narrowly defined what constitutes liberty or property interest –> Ct. repeatedly held that there was liberty or property interest only if there was a right (i.e., a government bestowed privilege was not a basis for requiring due process)
· Liberty –>
· Property –>
3. w/o due process of law
· Notice?
· Opportunity to be heard?
E. Growth in Entitlements:
· During early 1970s, Sup Ct. held that many types of government benefits previously thought to be mere “privileges” rather than “rights” were in fact interests in liberty or property, which could therefore not be taken w/o procedural due process
Goldberg v. Kelly: –> Ct. held that a welfare recipient must be given “evidentiary hearing” before his benefits may be terminated; welfare payments, for a person statutorily entitled to receive them, were not “mere charity,” but were a right p
t is incorrect to use due process clause as place for protecting substantive rights
· Critics say that 14th Amendment provision stating that no state “shall abridge the privileges or immunities of citizens of United States” is appropriate place for safeguarding substantive rights
· Objections generally are not only to the place in the Constitution where rights are found, but also to Ct’s finding and protecting the rights at all (i.e., critics argue that Ct acts illegitimately when it protects rights that are not explicitly stated in Constitution or intended by framers)
2. Two-Tier Standard of Review:
· Rational Relation –> in cases of economic rights, Ct. has merely required that there by a rational relation b/w statute and legitimate state objective
· Strict Scrutiny –> where Ct. finds a fundamental right is impaired by statute, it has applied a strict scrutiny that is stricter in two respects:
a. State’s objective must be “compelling,” not merely legitimate; and
b. Relation b/w objective and the means must be very close, so that the means can be said to be “necessary” to achieve the end
3. Two Major Uses of Substantive Due Process:
· Used to safeguard economic liberties and to protect freedom of contract as fundamental right
a. Lochner v. New York:
· Ct. declared unconstitutional a law that imposed limit on number of hours bakers could work
· Three Major Principles Articulated in Lochner:
a. Freedom of contract is basic right protected as liberty and property rights under the due process clause of 14th Amendment
b. Government can interfere w/ freedom of contract only to serve a valid police purpose (i.e., to protect public safety, public health, or public morals)
c. It is the judicial role to carefully scrutinize legislation interfering w/ freedom of contract to make sure that it served a police purpose
· Ct saw the maximum hours law as interfering w/ freedom of contract b/c it prevented bakery owners and bakers from contracting for as many hours of work as they wished
· Protect rights of privacy and personal autonomy
a. Roe v. Wade:
4. Economic Substantive Due Process (Since 1937):
