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Constitutional Law II
Rutgers University, Newark School of Law
Gonzalez, Carlos

Constitutional Law Outline
Carlos Gonzalez – Spring 2013
1)      Originalism: The view that judges deciding constitutional issues should confine themselves to enforcing norms that are stated or clearly implicit in the written Constitution
a.       Finding a right: The court should only find a right if its expressly stated in the text or clearly intended by the Framers
b.      Meaning: The meaning of a constitutional provision was set when it was adopted and that it can be changed solely by an amendment
c.       Scalia’s originialism: Original meaning is found in the historical practices and understandings of the times, not the views of the document’s drafters but the Constitution’s meaning is fixed and unchanged until its amended
d.      Arguments:
                                                               i.      Nature of interpretation: The very nature of interpreting a document requires that its meaning be limited to its specific text and its framers intentions
                                                             ii.      Limited power: The originalist approach is desirable to constrain the power of unelected judges in a democratic society
1.       American Democracy: The very premise of democracy is a majority rule and judicial review allows unelected judges to overturn the decisions of popularly accountable officials
e.      Counter-arguments:
                                                               i.      Democracy: The framers explicitly distrusted majority rule and created an institution with strong anti-majoritarian features
2)      Non-Originalism: The contrary view that courts should go beyond that set of references and enforces norms that can’t be discovered within the four corners of the document
a.       Finding a right: Its permissible for the court to interpret the Constitution to protect the rights that are not expressly stated or clearly intended
b.      Meaning: The Constitution’s meaning can evolve by amendment and by interpretation
c.       Types of non-originalism
                                                               i.      Tradition: Tradition can be a guide in interpreting the Constitution
                                                             ii.      Level of abstraction: The court can follow traditions stated more generally or at a higher level of abstraction
                                                            iii.      Contemporary values: The court may decide cases based on contemporary values, but only when its dealing with issues concerning the process of government, such as ensuring fair representation and adjudication
                                                           iv.      Democratic values: The court has special expertise and procedure and also the judicial review is consistent with the majority rule because its perfecting democracy
                                                             v.      Natural law: The court should discern and implement natural law in interpreting the Constitution
                                                           vi.      Moral consensus: The court should identify and follow the deeply embedded moral consensus that exists in society
d.      Arguments:
                                                               i.      Evolution: Its desirable for a Constitution to evolve because the cumbersome amendment process requires approval by 2/3rds of both Houses of Congress and 3/4ths of the states. Its necessary to meet the needs of a changing society
                                                             ii.      Ambiguous intent: The framer’s intent is ambiguous since the process for determining the framers’ intent is affected by contemporary values
                                                            iii.      Incomplete historical materials: The historical materials are too incomplete to support authoritative conclusions
                                                           iv.      Framer’s intent: Framers probably did not intend dead-hand control
3)      DC v Heller: The court invalidated a law regulating guns and found that the 2nd amendment is not limited to protecting a right to have firearms for militia service
a.       Law: A DC ordinance prohibited possession of hand guns and imposed significant restrictions on long guns
b.      Scalia’s originalism: Scalia centered on the text of the argument
                                                               i.      Two clauses: There were two clauses
1.       The prefatory clause: Concerning militias
2.       Operative clause: About the right to bear arms
                                                             ii.      No conflict: The prefatory clause cannot negate an operative clause and the prefatory does not limit the operative grammatically but announces a purpose
                                                            iii.      History: Scalia traced the history of gun rights in England and states prior-Constitution
                                                           iv.      Post-ratification commentary, pre-civil war cases, post-civil war laws ad cases: Held that they confirm that the 2nd amendment was not limited to have firearms for militia service
c.       Stevens’ originalism:
                                                               i.      History: The right to have firearms is limited for the purpose of militia service
                                                             ii.      Ignores the two clauses: Concludes that they mean that the right of people to keep and bear arms shall not be infringed
                                                            iii.      Drafters intent: Madison, the drafter, included an exemption from militia service for conscientious objectors, confirming it was about a right for militia service
                                                           iv.      Same sources as Scalia: But held that past precedent concerning the 2nd amendment only protected the right to have guns for militia service
                                                             v.      Framer’s intent: The framers did not make a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons and the court should be allowed to define acceptable gun-control policy
d.      Breyer’s dissent: Deference to the legislatures and court’s shouldn’t interpret it anyway
The Federal Judicial Power
Source and Scope
1)      Source of federal judicial power: Article 3, Section 1
a.       Article 3, Section 1: Federal judicial power shall be vested in one Supreme Court and in such inferior courts as Congress may from time to time ordain and establish
                                                               i.      “Judicial power shall be vested”: Creates a federal judicial system
b.      Lower Courts: Article 3 does not require Congress to establish any lower federal courts nor grant them full jurisdiction to decide all matters within the federal judicial power
2)      Scope: Article 3, Section 2 limits the jurisdiction of federal courts to cases
a.       Arising under the Constitution, an act of Congress or federal treaty
b.      In which US is a party
c.       Between a state and citizens of another state
d.      Between citizens of different states (Diversity Cases)
e.      Affecting ambassadors, other public ministers, and consuls
f.        Of admiralty and maritime jurisdiction
g.       Between two or more states
h.      Between citizens and foreign states, citizens, or subjects
3)      Limitations on the Scope: Even though the case is listed in Article 3, does not mean that federal courts have jurisdiction. Certain doctrines limit it
a.       Sovereign Immunity: The US may not be sued without its consent. C

2)      Source: Article 3, Section 2- Defines federal judicial powers in terms of nine categories of cases and controversies
3)      Definition of Case: A federal dispute counts as a case only when the adjudication of that case is final and unreviewable by an entity outside the federal court system
a.       Heyburn’s Case: You can set up an administrative apparatus and have administrators review the files and then forward the files to the Secretary of War- Because you are not asking the courts to issue an opinion to render an issue that may be overturned
4)      Advisory Opinions (Requirement of Case or Controversy): Courts cannot issue opinions about the constitutionality of pending legislation or on constitutional questions referred to them by other branches of government
a.       Requirements:
                                                               i.      There must be an actual dispute between litigants
                                                             ii.      There must be some likelihood that the decision in favor of the claimant will bring about some or some effect
b.      Non-adverse Abstract questions: The court cannot adjudicate a suit between non-adverse parties based on a hypothetical and abstract question
                                                               i.      Muskrat v US
5)      Standing: The determination of whether a specific person is the proper party to bring a matter to the court for adjudication
a.       Elements
                                                              i.      Direct and immediate injury: Injury in fact, is an invasion of a legally protected interest that is concrete and particularized, and actual or imminent, not conjectural or hypothetical
1.       Types of Injuries: Common law, Constitutional,  Statutory, and Aesthetic Interests
a.       Legal right: The right invaded must be a legal right
b.      Constitutional Rights: There is standing if
                                                                                                                                       i.      The individual suffered a particular harm distinct from the population: It cannot be a generalized grievance
                                                                                                                                     ii.      And if the facts are sufficient to establish an injury
c.       Statutory Rights: Congress cannot broadly expand standing by allowing “any person” to bring suit if the individual is not particularly harmed
                                                                                                                                       i.      Issue of how far Congress can expand standing
d.      Other interests:
                                                                                                                                       i.      Sufficient standing:
1.       Desire to use or observe an animal species: Lujan
2.       Change in market conditions: Clinton v NYC
3.       Damage to coastline that is continuing: It is sufficient standing under Mass v EPA