Constitutional Law I Outline

Constitutional Law I Outline – Flatto – Spring 2013

General Overview

I. History

A. Post-American Revolution, the states were all seen as sovereign entities

1. But, they needed to be arranged together in some way during the war – so there was the Continental Congresses, which eventually led to the Articles of Confederation

i. The Articles were very weak…

a. Focused on a week national government and strong state governments

b. States retain their sovereignty (Art. II – the Constitution only gets it in under the 10th Amend.)

c. States enter into a league of friendship (Art. III – similar to the modern-day UN)

d. No executive or judiciary, and the legislature’s power is very limited

e. People are not mentioned, as it is very state focused

2. It doesn’t work, so in 1787 they’re trashed in favor of a new document – the Constitution

II. Constitution

A. Themes

i. The Constitution is broad so as to allow it to be interpreted easier in the future

ii. The key theme is that it distrust of government, thus the necessity of separation of powers and checks & balances

iii. The Constitution is the supreme law of the land

2. Formed by the people, and they’re forming a “union,” instead of the Articles’ league of friendship

3. There’s more goals than were in the Articles, which was focused almost exclusively on common defense

4. Federalist Papers were written to get the document ratified, particularly in NY

i. Federalist 51 – focused on checks and balances & separation of powers

a. Pitting one branch against the other two preserves liberty – “If men were angels, no government would be necessary.”

B. Overview

1. Article 1 – Legislative Power

2. Article 2 – Executive Power

3. Article 3 – Judicial Power

4. Article 4 – States & Prohibitions on Federal Government

5. Article 5 – Amendment Procedure

6. Article 6 – Debts & Supremacy

7. Article 7 – Ratification Procedure

Article III – Federal Judicial Power

I. Overview

A. Marbury v. Madison (1803) (pg. 1-8)

1. Legal vs. Political Acts

i. Legal acts are those where there is no discretionary choice and are required by law, and involve individual rights that were injured (clearly the purview of the Judiciary)

ii. Political acts are those where there is a discretionary choice, and involves the rights of the nation (exempt from the Judiciary because they’re reserved to the political branches)

a. Begins the rise of the “Political Question Doctrine” – stay tuned…

2. The Judicial Branch determines what the law is…

i. Congress cannot expand the Judiciary’s original jurisdiction to include mandamus because the Constitution makes it fixed and limited

a. Because of this, the law is struck down – shows that the Judiciary is the branch that determines constitutionality

1. “It is emphatically the province and duty to the judicial department to say what the law is.” – C.J. John Marshall

B. Martin v. Hunter’s Lessee (1816) (pg. 10) & Cohens v. Virginia (1821) (pg. 10-11)

1. Art. III gives SCOTUS the authority to review decisions of state courts

i. Congress was not required to establish lower federal courts, so if they didn’t there would be no point in giving SCOTUS appellate authority if it couldn’t review state courts

ii. Shows that the Constitution doesn’t apply only to the federal government

iii. But, for there to be review of state courts, there must be some issue of federal law

a. Remember, state courts are courts of general jurisdiction, so they can enforce federal law too…

C. District of Columbia v. Heller (2008) (pg. 13-34)

1. There is a fundamental right for individuals to own firearms, but this right is subject to regulation just like other fundamental rights

2. Modes of Constitutional Interpretation (from Bobbit)

i. Historical – relying on the intentions of the Framers/ratifiers of the Constitution

ii. Textual – meaning of the words alone as interpreted by the contemporary “man on the street”

iii. Structural – inferring rules from relationships that the Constitution mandates among the powers it sets up

iv. Doctrinal – rules from precedent & case law

v. Ethical – rules from moral commitments from American ethos that are reflected in the Constitution (Ronald Dworkin)

vi. Prudential – seeking to balance the costs and benefits of a rule (Richard Posner)

D. Ex Parte McCardle (1868) (pg. 35-37)

1. Congress can rein in SCOTUS appellate jurisdiction to how it sees fit, even to the point of precluding jurisdiction on a case after it has been accepted for cert. but before oral argument

i. Perhaps this case can be distinguished on the circumstances of the case – post-Civil War state of emergency in Reconstruction

2. Could Congress eliminate most of SCOTUS’ appellate jurisdiction, but not all of it?

II. Justiciability Doctrines and the Requirement for Cases and Controversies

A. Art. III requires that there be a “case or controversy” for federal courts to hear a case

1. Requirements for a case or controversy…

i. Actual dispute involving the legal relations of adverse parties

ii. The judiciary can provide some type of relief

2. Over time, this has evolved into 5 justiciability doctrines… (courts will bring these up if they aren’t by the parties – the who, what & when questions)

i. No advisory opinions – Art. III requires that there must be a “case or controversy” at issue, not just a request for a ruling on whether something is valid (what)

ii. Standing – the litigant must be entitled to bring suit (who)

a. See below…

iii. Ripeness – the suit cannot be speculative in nature (i.e. must be ripe for review) (when)

a. A claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all

iv. Mootness – suit must adversarial (i.e. if the case has been settled, the case is moot) (when)

a. A matter is moot if further legal proceedings with regard to it can have no effect, or events have placed it beyond the reach of the law

b. An exception arises if the issue is capable of repetition but evading of review – say for if the issue concerns events of short duration (ex: pregnancy, elections)

1. Chemerinsky: “The time for human gestation is markedly shorter than the time for human litigation.”

v. Political Question Doctrine – judiciary will not rule on questions of a political nature, or ones that intrude on a coordinate political branch (what)

a. See below…

B. Standing

1. Standing is the gatekeeper – many times decides how far, or if at all, courts will move into an area

2. Requirements for standing…

i. Constitutional (our main concern)

a. Injury-in-fact

1. The plaintiff must have suffered or imminently will suffer injury—an invasion of a legally protected interest that is concrete and particularized. The injury must be actual or imminent, distinct and palpable, not abstract. This injury could be economic as well as non-economic.

b. Causation

1. There must be a causal connection between the injury and the conduct complained of, so that the injury is fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party who is not before the court.

c. Redressability

1. It must be likely, as opposed to merely speculative, that a favorable court decision will redress the injury