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Constitutional Law I
Rutgers University, Newark School of Law
Pope, James Gray

Professor Pope – Constitutional Law Outline – Spring 2012

Federal Law
1)       Constitution
2)       Statutes
3)       Administrative Regulations
4)       Common Law

State Law
5)       Constitution
6)       Statutes
7)       Administrative Regulations
8)       Common Law


A) Sources of Constitutional Interpretation
1) Textual
– Starting point
– “is drawn from a present sense of the words of the provision”
– Conflict between meaning now and in past
– if present sense conflicts with words at time words    were written then the text at time words were written is going to prevail
– A real textual argument is highly likely to be connected with an original meaning argument
– Look at historical sources (ie contemporary dictionary)

2) History
– Two forms
1) Originalism
i) determining the original intent of the drafters of the Constitution
ii) establishing the original meaning of its text
2) Vectors of History (less static)

a) Original Intent
– attempt to discover the authorial intent behind any constitutional provision
– focus on the original intent of the drafters prevents, or at least inhibits, the tendency of politically unaccountable judges to remake the Constitution to reflect their personal preferences
– application of the provision, not the principle

b) Original Meaning
– attempt to determine what the text meant at the time it was adopted
– can be more easily determined by reference to contemporary interpretations of the text
c) Tradition (vectors of history)
– history as vectors is dynamic
– Justice Harlan – it is a “living thing”
– expanding freedoms, expanding people that enjoy the freedoms (evidence of this is a large chunk of the amendments)
– Level of Generality
– Scalia says “general traditions provide imprecise guidance and permit judges to dictate rather than discern the society’s view.  A rule of law that binds neither by text nor by any particular, identifiable tradition, is no rule of law at all
– Brennan says Scalia’s “approach squashes this freedom by requiring specific approval from history”
– commentators, judicial opinions, legislative debates

d) Synthetic Interpretation
– Divided into 3 periods:
1) Founding to the Civil War
2) Reconstruction to the New Deal
– changes that occurred after the civil war in the constitution (13-15th A) amounted to a regime shift – the changes were so major they altered the field of interpretation of the constitution
– fundamentally changed field of interpretation favoring national government over state autonomy to a much greater degree than prior to the civil war and governmental protection of fundamental individual rights
3) New Deal to the Present
– during the new deal no real textual changes but c. law was changed again
– property and contract rights reversed
– led to a further increase in the national power and further shift away from the idea of individual rights as something that need to be protected against government and government may be useful in protecting individual rights (ie – rights for workers to organize)
– makes it synthetic because after each transformation constitution revolves a synthesis of the spirit and structure of the constitution as how it was enacted
– can’t view first amendment in same way you would have viewed it before
– ie hate speech takes on a different kind of interpretative tilt because of “1-2 synthesis”

3) Structure
– “claims that a particular principle or practical result is implicit in the structures of government and the relationship that are created by Constitution among citizens and governments”
– postulates about the type of governance created by the Constitution
– fill the gaps left by the government structures created by the Constitution
– Common when the underlying issue is:
1) federalism – the proper allocation of power between the federal and state governments
2) separation of powers – the propose allocation of federal power among the three branches of the national government
3) Majority institutions go after a vulnerable minority

4) Precedent (doctrine)
– “asserts the principles derived from precedent and sometimes judicial or academic commentary on precedent”
– familiar common law method
– weak because of the extreme difficulty of correcting constitutional decisions of the Supreme Court
– stare decisis – policy (not a rule of law)
– consistency is valuable because people rely on the law and need to be able to predict what the law is going to say

5) Prudential/Consequential
– “advancing particular doctrines according to the practical wisdom of using the courts in a particular way”
– most removed from the more traditional sources of con law
– many arguments surrounding the proper separation of powers are prudential arguments

6) Culture/Ethos
– rooted in widely shared cultural norms, such nontextual sources as moral concepts of justice, theories of human autonomy, and cultural assumptions about fairness
– by themselves, these arguments are not necessarily constitutional arguments, but when they are used in conjunction with other forms of constitutional argument, they can be of considerable persuasive force
– Examples
1) Brown v. Board of Education (striking down official school segregation by race)
2) Plyer v. Doe (voiding a Texas law denying free public education to children illegally present in the US)
3) Romer v. Evans (invalidating a Colorado constitutional amendment prohibiting any unit of government from making of applying antibias laws in favor of homosexuals)

7) Natural Law
– highly questionable to its legitimacy but it can be brought in by including it with the ones above
– can be very persuasive
– 14th Amendment – Due Process

I.          Pervasive Themes

A.         Judicial Review

1.   Judicial review – the process by which courts decide whether actions of government officals comply with the constitution.
a.       Abuses of power by elected politicians are checked by unelected judges (SCOTUS)
2.   Marbury v Madison (7)
a.       Marshall supposed to deliver a commission for new justices and won’t deliver commissions—Marbury sues for Writ of Mandamus (writ directing official to do something)
i.      Political question doctrine – court refrains from enforcing constitution against a branch of government whent hat other branch is assigned  to make decision (political vs legal question)
ii.      MINISTERIAL ACTS – Judicial review is only appropriate where the executive had a duty to perform
1.      Does not apply to POLITICAL ACTS that executive has discretion over.
iii.      Arguments the power of judicial review exist:
1.      Structural implications of written constitution
a.       What’s point if congress can just ignore it
b.      Judges not responsive to political pressure – lifetime members
c.       Check the other branches
2.      Article 3’s grant of judicial power over cases arising under the constitution. (textual argument)
3.      Supremacy clause
a.       Article VI, clause 2 – state judges must apply the constitution and the laws of the US which shall be made in pursuance thereof as the supreme law of the land.
4.      Precedent
a.       Calder v Bull – court reject an ex post facto clause challenge to a CT law but left no doubt of its view that it possessed the power to be void.
5.      Judges Oath – Marshall argues he would violate oath if he upheld unconcsitutional laws
6.      Framers intentions
a.       Federalist #78 –
iv.      Court says – yes we have the power to review – however:
1.      THEY DO NOT HELP MARBURY – the court says that they only have original jurisdiction in cases “affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party.  IN all other cases, the SC has appellate jurisdiction.
a.       Art. III
3.   Obligatory or discretionary
a.       Marhslal – this court should not take jurisdiction if it should not; but it is equally tue that it must take jurisdiction if it should.
b.      Brandeis – others say that we should only do it if absolutely necessary – we can decide when that is basically.

4.   Cooper v Aaron
a.       Schools preparing to integrate and governor told national guard to prevent integration- governor says that he and the state are not bound by Brown v Board of Ed because they were not parties to the case.
i.      Court says – Intrepretation of the 14th amendment as enunciated by this court is suprepe law of the land and article VI makes it binding on all states.
1.      Article VI – SUPREMACY CLAUSE
5.   The Utility of Judicial Review
a.       Counter-Majoritarian Role
i.      Court acts as a brake upon the politically accountable branches
1.      This helps protect minorities who may not be represented by legislature etc.
2.      However: carried out by unelected and politically unaccountable judges, and is essentially against democracy-
b.      Avoiding the Counter majoritarian problem
i.      Judicial review merely implements majority will of earlier generations about limits on government
ii.      Judicial review is prodemocratic to extent its used to eliminate barriers
c.       Stability
i.      Unless one branch has last word on constitutional interpretation, constitution will have no settled meaning.
d.      Entrenched error
i.      Very difficult to correct mistaken interpretations of constitution
1.      Persuade cour

changes in major ways – field of interpretation changes with it.
iii.      Don’t look at preexisting ideas the same anymore
iv.      Ex: 13A,14A,15A – confer rights and give gov’t power to enforce them –
1.      National govt is now on the side of enforcing right
C. Standards of Review
1.Judges look at government action and decide whether or not it is constitutional
a.       Either are critical (prove you did your HW) or deferential (I don’t need proof)
2. Notes
a.       Interpretivists – insist that only legitimate form of judicial review is from text of constitution
b.      Non-interpretivists – should nto attempt to figure out what text of constitution means – make it a mirror of our present sense of fundamental justice
3. Calder V Bull
a.       Natural law
b.      CT legislature set aside court decision refusing to approve a will by enacting a law that required a new hearing. At 2nd hearing will was approved. People who would’ve received contents of will challenged as an ex post facto law
i.      Court rejected the claim and said ex post facto only applies to criminal laws.
ii.      Proponents argued that this violated the SOCIAL COMPACT – cannot be considered a rightful exercise of legislative authority
1.      Response: if court uses natural law they aren’t enforcing, instead they are just using opinions.
2.      NO ONE will use natural law argument by itself.
4. 3 Standards of Review:
a.       Reasonable Scrutiny (minimal, default)
i.      Presumption/trigger
1.      –courts begin with the presumption that stautes and other government actions are valid
ii.      burden/standard
1.      unless some reason to doubt presumption – challenger has burden of proving that the law, is not rationally related to a legitimate government objective
iii.      Interest – rationally related to the objective
1.      So long as governments reason for acting is legitimate (within granted powers of govt in question and not violate and constitutional restraint) it will be accepted
2.      The courts generally  accept any hypothetical objective as governments goal whether there is any evidence that the hypo was the actual objective
iv.      Applied
1.      Court generally applies mimal scrutiny to questions of wehtehr congress has exceeded its granted powers
2.      Court also applied a form of minimal scrutiny to claims that onerous government regulations have the effect of taking private property without just compensation, as required by the 5A, or to other claimed property protections under due process/equal protection clauses
b.      Strict Scrutiny (compelling interest)
i.      Presumption/trigger
1.      Presumptively invalid/suspect
2.      Example (equal protection clause): a statute that classifies by race
ii.      Burden/standard
1.      Defender of government action has the burden of proving tha the law is necessary to accomplish a compelling government objective
iii.      Interest
1.      The governments actual reason for using the presumptively invalid criterion must be very important and the use of the criterion must be essential to accomplish that goal
iv.      Rare instance standard has been met
1.      Use of race to remedy official segregation
2.      To achieve compelling goal of racial segregation – race was necessary to use for assignments
v.      Starting point –