Constitutional Law I – Outline
1) Nature of the Constitution and Structure of the Union
a) The relationship to the Declaration of Independence to the Constitution
i) U.S. became a nation state in 1776. We developed a Constitution in 1787 (…more perfect union).
ii) Statute—Congress—Constitution—People—Law of Nature—Nature’s God
iii) There are markers to the unidentified God, even in our own framework.
2) Articles of Confederation—
a) Goals
i) Insure some unification vis-à-vis foreign and domestic problems
ii) States would remain sovereign
iii) No power to tax
iv) No power to regulate commerce
v) Failure of states to comply with the articles
vi) Federal government could only regulate through state legislature.
b) Arguments for the new Constitution
i) “republican theory”
ii) “Civic virtue—willingness of citizens to subordinate their private interest to the “general good”
iii) Anti-federalist—opponents of the US Constitution
iv) Private interests vs. public good
v) “town meeting”—synonymous with “grass roots” democracy
c) First constitutional document
d) Grant of national power to federal government
e) All other powers vested in the states
f) Arguments against Bill of Rights
i) Hamilton: Some might think there is no other limitation on the federal government.
ii) There are rights that are fundamental, but not granted in constitution or bill of rights.
(1) Example: Criminal procedure: The right for an accused to testify on his own behalf.
3) Judicial Review
a) Marbury v. Madison
i) Questions:
(1) What provision gives congress power to establish Justice of the Peace in D.C.? Art. 1:8
(2) How did the President get the power?
(3) Did John Marshal violate the Constitution by holding two offices at the same time? Art 1:6
ii) Holding: Marbury has a right to his commission but the Judiciary Act of 1789 wrongfully gave the Supreme Court the power to issue Writs of Mandamus
(1) Writ of mandamus—legal matter (p. 31)
(2) Does the legal v. equity distinction still matter?
(a) Yes.
(b) Jury trial is only available in a legal matter.
iii) Issue 1—Enforcement of Individual Rights—One of the first duties of civil government is to enforce every individual’s right to claim the protection of the laws, whenever he receives an injury. Marbury was entitled to the commission; he was appointed for a fixed term and his appointment was irrevocable and conferred a vested property right on him.
(1) The very definition of law is that it has a remedy.
iv) Issue 2—The “Supreme Executive” Answers to the Law—With respect to the exercise of “political powers,” the President and his subordinates had “discretion” for which the President was “accountable only to his country in his political character, and to his own conscience.” Where executive officials were assigned duties (obligation) in which they are directed peremptorily to perform certain acts on which “the rights of individuals are dependent” the President, et al, are “amenable to the laws” and cannot disregard such “vested rights of others.”
(1) Political Question Doctrine:The courts do not have jurisdiction over questions that are merely “political” or “discretionary.” They have jurisdiction over questions concerning the rights of individuals.
(a) Discretion—Political (State Police: ticket)
(b) Obligation—Marbury’s personal right to the commission
v) Issue 3—Constitutional Limitations on Power—Under Article III, the Supreme Court exercised appellate jurisdiction. The Supreme Court has original jurisdiction in only two types of cases—those “affecting ambassadors, other public ministers, and counsuls, and those in which a state shall be a party. The fact that the Constitution divided the Court’s jurisdiction between original and appellate suggested that it did not mean to empower the legislature to expand original jurisdiction.
vi) Issue 4—The Constitution is Paramount Law—In creating the Constitution, the people exercised their “original right” and set forth “fundamental” principles. The Constitution was designed to limit government. If Congress could legislate in a manner beyond the bounds of the Constitution set, Congress would not be limited. To the question of whether a statute “repugnant to the Constitution” was nonetheless the law of the land, the answer is any law inconsistent with the Constitution is invalid.
vii) Issue 5—The Constitutional Power of Judicial Review—Marshall argued that courts were not bound to enforce legislative acts like Section 13 “repugnant to the Constitution.” “It is emphatically the province and duty of the judicial department to say what the law is.” Marshall pointed to the fact that Article III extended the “judicial power” to “all cases arising under the constitution,” implying that the Court should consider the Constitution in deciding a case. Marshall also pointed out that judges take an oath to support the Constitution which implied that they may interpret it… criticized as being counter-majoritarian.
(1) Court has no jurisdiction over purely political matters
(2) Court has no original or appellate jurisdiction with regards to writs (not laid out in Article III)
(3) The judiciary power of judicial review or as giving the judiciary the ultimate power to interpret the Constitution. Although many have argued that other branches also have the power and duty to interpret the Constitution, the Court increasingly contends that it has the ultimate power to do so.
(4) Marbury creates an unwritten constitutional tradition
viii) Fundamental Presuppositions
(1) The Constitution is superior to statutes /legislature
(a) Arguments from the nature of the Constitution
(b) Arguments from the text of the Constitution
(2) People have the original right to establish a constitution
(3) Fabric of American system is set out in Declaration of Independence (based on the law of nature and nature’s God).
(a) We are able to point to the law and say “this doesn’t make any sense” unless… fundamental principles.
ix) Law of nature gives people—
(1) Declare independence (1 Kings 12:12)
(2) Establish government (1 Samuel 8: 4-21)
(a) America is the reversal of the people of Israel
(b) Cf: preamble to Constitution: Limits people—unalienable rights
x) Essence of Judicial review (Adjudication) (Romans 13:4)
(1) Backward looking (facts)
(2) Applies existing law (IRAC)
(3) Binds parties to the case
xi) Legislature (Planning)
(1) Forward Looking (shapes future)
(2) Makes law
(3) Applies to everyone
xii) Is the Supreme Court the final arbiter?
(1) Who are our representatives we have chosen to make law?
(a) The branches are distinct?
(b) These words have an essential meaning beyond the historicity of the time of the founders/ratifiers.
(2) Christ’s death was one of satisfaction; the example of supreme judicial power.
(3) The Legislative power depends upon foresight (God’s Providence—pro video)
xiii) Notes – theories of interpretation
(1) Structural—General principles to balance out adjudication
(2) Originalist— Intent of the framers
(a) Why should it bind us centuries later?
(b) ‘Fundamental principles and rules’
(i) Object: the preservation of those rights and the public good presently and for posterity.
b) Martin v. Hunter’s Lessee
i) Held—The Constitution extended judicial power and the Superme Court’s appellate jurisdiction to “all cases… arising under… the laws of the United States and treaties”.
(1) Supreme Court establishes review authority over state courts in cases involving Constitutional, treaty, federal laws (Art III, þ 2, þþ 1).
(2) Upheld the constitutionality of section 25 of the Judiciary Act of 1789
(3) “It is the case, and not the court, that gives jurisdiction. Justice Story.
ii) Rationale—
(1) The framers expected some cases involving federal law to be filed in state court with appeal to the Supreme Court. Without lower federal courts, Supreme Court appellate review would be necessary to extend federal judicial power to the extent Art. III required.
(2) The VA court’s refusal to comply was an insult to the constitutional structure of our nation, totally inconsistent with the prerequisite to the survival of an effective written constitution.
(3) Without judicial review, state court decisions might infringe critical national interest, jeopardizing the supremacy of federal law
(4) A central revising authority was necessary to control discordant judgments of the state judiciaries and harmonize them with the nations laws, treaties and Constitution.
iii) Nature of the Republic—
(1) Civic virtue
(2) Checks and balances
(a) Prevent self-interested factionalism
iv) Sovereignty (of the U.S. resides in Federal government)
(1) Law making ability
(2) Territory
(3) People
(4) Ability to engage in foreign affairs
c) Cooper v. Aaron
i) Necessity defense
ii) Obligation of conscience
4) LEGISLATIVE POWERS
a) Introduction
i) Enumerated Powers
(1) Commerce
(2) Tax
(3) Spending
(4) War
(5) Civil War Amendments
(6) Treaty
ii) Three Phases
(1) Original Meaning
(2) Departure from original meaning and expansion of federal government
(3) Restrictions on federal government but not return to original meaning
b) McCulloch v. Maryland
i) Held—In regards to the power of judicial review, Chief Justice Marshall wrote, “On the Supreme Court of the United States has the Constitution of our country devolved this important duty.” If Congress, “adopted measures which are prohibited by the Constitution… it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land.”
(1) Was MD tax constitutional?
(a) No; tax interfered with valid constitutional federal power.
(b) Abusive taxation by state government has power to destroy federal power vested by national citizens, who have no representation in MD; therefore, impermissible infringements on the people’s say in legislation.
(2) Mcculloch test
(a) Enumerated
(i) Object
(b) Means
(c) Prohibition
(i) When congress says the purpose is safety, it’s a general principle. Does it not violate the very purpose of the power.
ii) Nature of the Union
(1) The people did not meet to form a nation in 1787, but government.
(2) A.o.C. formed by state legislatures (illegal).
iii) Taxing power—the checks on taxation is in the hands of the people of U.S. (if Maryland could tax Fed, the power to destroy is in the hands of a few).
iv) Principles of interpretation
(1) Custom and usage—
(a) History
(b) Tradition (p. 61)
(i) Nature of the Union
(ii) Marshal—Acts in state, by the people
(c) Enumerated powers
(i) Some object to be attained: ordinary means of execution (p. 63)
(d) Necessary and proper clause: Art I þ 8. “Necessary” does not mean “absolutely necessary or indispensable”; let the end be legitimate, w/in scope of the Constitution, and all means which are appropriate, plainly adapted to that end, not prohibited, and consistent w/ letter and spirit of Constitution are Constitutional. Means is Constitutional if rationally related to a constitutionally specified object, assuming it does not violate any specific prohibition (bill of rights).
(e) Nature of the Constitution
(i) Powers of Congress are conferred directly from the people, not from the states.
(f) Analogy to other powers (e.g., establish post offices)
(g) Doctrine of Implied pow
rt dismissed, ruling that students lacked standing under “case and controversy” clause, requiring court to address specific harm caused to plaintiff through the government’s specific act.
iii) Student’s alleged injuries based on stigma and effective loss of ability to maintain desegregated schools; an asserted right to have the government act in accordance with a law is not sufficient alone to confer jurisdiction on federal court. Injury accords standing only to those persons who are personally denied equal treatment.
(1) Judicially cognizable injury but was not “fairly traceable”.
iv) “Line of causation” important; Supreme Court ruled that harm asserted was not caused directly enough by the government action.
g) Lujan v. DFW
i) “Procedural injuries”: since all persons could suffer injuries due to the violation of the statute, anyone can sue. Scalia strikes this down because:
(1) Are we embracing nominalism: calling something “concrete” when it isn’t?
(a) Case & controversy issues of specific injury
(b) Under Marbury, the sole province of the court is to “decide on the rights of the individual”
(c) Executive branch has power to determine public interest questions; with “procedural injuries” section, Congress is taking power from executive and giving it to judiciary.
(i) A “person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy.”
6) Political Question Doctrine
a) Marbury – distinction between discretion and obligation
b) Baker v. Carr (6 tests)– TN gerrymandering statute. Held: Court declared that the Guaranty Clause offered no judicially manageable standard, however, the Equal Protection Clause did. The court therefore reversed the district court and remanded the case for further action under the Equal Protection Clause.
i) Nonjusticiability: A six factor test is used. If one of these formulations is inextricably woven into a case at bar, the case will be dismissed due to nonjusticiability..
(1) Textually committed—who has the power? If not given to congress… then, move on to (2).
(i) Policy decisions
(ii) Judicial type-decision
(2) Lack of manageable standard—how do we find out?
(i) Decision is inherently discretionary
(ii) Language is too general
(iii)Fact-finding process is too difficult
(iv)The remedy is too hard to implement because of judicial oversight
· Note: The next four are similar: prudential
(3) Requires an initial policy judgment (contained in 1)
(4) Respect for coordinate branch
(5) Adherence to a political decision already made (sounds like necessity, which has no law)
(6) Embarrassment of multifarious pronouncements (happens all the time, usually applied during foreign affairs)
ii) Congressional Powers
(1) Vieth v. Jubelirer (pp.119-144)
(a) Plaintiffs-appellants claim that Pennsylvania General Assembly political gerrymandering was unconstitutional.
(b) Art I:4— Scalia quotes Chief Justice Marshall: “it is emphatically the province and duty of the judicial department to say what the law is.” Scalia then explains that, “Sometimes, however, the law is that the judicial department has no business entertaining the claim of unlawfulness—because the question is entrusted to one of the political branches or involves no judicially enforceable rights. In the case before bar, there are no judicially discernible and manageable standards for adjudicating, so the case is nonjusticiable.
(c) Justice White’s standard for judicially addressing a question— consistent denigration of a citizen’s voting rights.
(d) Rationale: Some things simply ought to be decided politically.
c) Guarantee Clause (Art 4:4)
i) Purpose: Protects against turbulence that would disrupt security of the people.
ii) Ex:
(1) NV constitution
(a) 2/3 vote to increase taxes
(b) Must provide education
(c) Requires a balanced budget
(i) Statute cannot get 2/3 vote
(ii) Apportionment Bill—falls short of $ on education
(iii)NV Sup. Ct.—orders legislature to enact a tax increase
(iv)Nonjusticiable—to sue under the Guarantee clause (otherwise you would stretch federal resources).
(2) MA law defines marriage = 1 man + 1 woman
(a) Sup ct. = 1 man + 1 man
(b) Sup. ct. sues under Guarantee clause
(i) Performing legislative function (nonjusticiable)
iii) What’s the limit?
(1) There must be invasion
iv) Other options than legislation
(1) Each officer that has taken an oath for the constitution simply ceases laboring towards unconstitutional goals.
(2) Impeach judges
