Constitutional Law Outline – Professor Ron Riccio
CONSTITUTIONAL LAW
Stone, Seidman, Sunstein, Tushnet – Sixth Edition
I. Origins of Judicial Review: The Articles of Confederation to Marbury v Madison
Constitution protections are triggered by a Government Action:
1. Government Action can be through one of the branches
2. Or an Agent of the Government
The powers of the federal government are changing
Constitutional Law is a lot about balancing power of the federal government and individual rights
What does the Constitution protect? Look to the Preamble of the constitution!
We the people
Establish Justice
More perfect Union
Ensure domestic tranquility
How to make judicial decisions stick?
Through establishing legitimacy of the decision through legal reasoning and analysis.
The Supreme Court is the ultimate organ of the supreme law of the land –
The court’s authority –– rests on sustained public confidence in its moral sanction
· The Courts must create decisions that are Legitimate for the public to follow: They must be reasoned. This legitimacy is found through reasoning. The courts may make unpopular decisions but they are followed because they are reasoned.
There are two theorists when it comes to Constitutional Law and the Interpretation of the Constitution:
The Originalists v the Non-Originalists
A lot of these are rotted in the notion to ensure that constitutional decisions rest on something other than the value judgments or policy of the judges.
Non Originalists interpretation will look to several factors outside of the constitution. They look at the Constitution in light of its Context, interpret it liberally, flexible, adaptable.
– Framer’s intent
– Text of the Constitution
– Tradition/Precedent
– Prevailing Morality/Consensus
– Conception of Justice – to refine, not reflect the public view
– Amendment process is difficult PURPOSELY and they want to interpret the constitution as a living, breathing document that changes with the times.
Originalists Points of View:
They will read it literally, strictly, as narrowly as possible.
These people are worried about the effects of Judicial Review on the interpretation of the Constitution.
Fear the Court being too powerful over the other branches.
They are afraid of a judge’s discretion. Therefore they take a different approach of reading the constitution.
They are concerned about the counter majoritarian powers – They are proponents of amendment through article 5, not new interpretations. But amendment is difficult.
They think it leads to predictable, consistent, interpretations of the Constitution.
The constitution is not a bunch of general concepts to the originalists because then discretion would be unlimited.
There are problems = it’s a large group of people – how can they have the same intent?
The constitution has two categories of provisions:
Self executing or Self Explanatory OR
Studied Imprecisions/Majestic Generalities
these terms of the constitution seem to be vague – therefore judges have to exercise some discretion on what the words mean. Doubts of the interpretation are that the judges will add their own biases into the interpretation and not the “framer’s intent.”
There are really no meaning to these words,
14th amendment is an example.
The concern of the “Tyranny of the Majority” was prevalent in the founding father’s minds. \
Concerned of the “Factional Tyranny” where self interest would overcome that of civic virtue, and the majority would overcome the minority.
· Federalism counters this – sovereign states within a sovereign national government. It divides power from going all in one place.
· Bicameralism – separation of Congress into two houses – (House and Senate)
Ø Senate = elected every 6 years (to insulate from public bias)
Ø House = elected every 2 years (so the public has more representation)
· Checks and Balances: each department has a will of its own;
Ø but it enables (permits) the government to control the other branches and obliges(requires) it to control itself.
Marbury v Madison
a. RULE: Conflicts between state law/actions and the constitution are not allowed – The constitution will ALWAYS trump the State
i. Why? (Marshall’s reasoning)
1. The Constitution comes from the People, and the law makers are their representatives – they get their power from the people. The thing giving you power can’t give you more power then it has.
2. The Supremacy Clause: Article VI, Clause 2: The constitution and laws and treaties shall be the supreme law of the land and the judges in every state shall be bound thereby
b. RULE: The Supreme Court has The power of Judicial Review to review acts of Congress.
Reasoning:
i. Article III, §2, Cl. 1: The judicial power shall extend to all cases, in Law and Equity, arising under:
1. this Constitution,
2. the Laws of the US,
3. treaties,
4. all cases affecting ambassadors
5. public ministers and consuls
6. all cases of maritime shit
7. Controversies where the US is a party, between two or more states, between diverse parties
ii. The courts in the normal course of applying rules to different cases, must expound the constitution and interpret the rule. If two laws contradict each other the courts must decide on the operation of each.
1. Bases it not only on the text but also on the structure of the wording
iii. Judicial review protects the constitution and its supremacy
iv. Political Questions are not subject to Judicial Review – i.e. those that are discretionary like a Presidential appointment
II. Federal Judicial Review of State Laws and the Supremacy Clause
Difference between Supremacy and Exclusivity:
· Supremacy = Marbury v Madison. It does not necessarily mean that the Supreme Court is the only interpreter of the constitution.
Exclusivity of the Supreme Court in terms of Interpreting Federal Questions:
Cooper v Aaron: reinforces the exclusivity of the Supreme Court to interpret the Constitution because it extends J.R to state actions
Facts: Arkansas refused to respect the decision in Brown v Bd. Of Education which desegregated schools. Arkansass amended their constitution to reflect that it was okay to segregate, and kept segregating schools. They were like “hey, we can do it, it’s not in your power to tell us that you can’t – look at the 10th amendment.” The court says this is unconstitutional and they have to follow the Supreme Court’s decisions. The executive branch backs them up by nationalizing the National Guard – they back up the decision of the S. Ct. since it was reasoned and therefore legitimate.
· Rule: It is the special and distinctive role of the Supreme Court as ultimate guardians of the meaning of the Constitution. Other government officials must not interpret the Constitution for themselves but instead must look to the courts’ interpretation and take it as the authority.
· Rule: Judicial Review can be extended through appellate jurisdiction to actions by the state.
· Suggests that others should not think independently about what the constitution requires but how the Supreme Court would be likely to decide.
The Supreme Court has appellate jurisdiction even to state actions. (Cooper, Martin v. Hunter’s Lessee)
This is Federalism v. The 10th Amendment:
10th amendment =
Any power not given to the United States government by the Constitution is given to the States, or the people.
Also known as Comity/Deference/Respect to the state governments :
nt widespread homelessness). It doesn’t matter how the framers would have interpreted it, it matters how we have to approve it today.
Dissent: (Originalist Approach): The constitution was created in times of duress; If the provisions of the constitution are not upheld when they pinch as well as when they comfort, they may as well be abandoned – the constitution can only mean one thing and there are no exceptions to the absolute.
ii. Eminent Domain and the meaning of public use
The Kelo Case –
The Town of London acquired through eminent domain private property. The issue was that the Constitution bars any governmental possession of private lands for private use; it is only allowed for public use. The court interprets public use as including parts of a public development program.
“Public Purpose” was sufficient for the seizure of the land.
Rule: Government can take private land and give it to private individuals for public use without just compensation.
So basically we get the feeling that Originalist = less opportunity for Judicial Review
And Non-Originalist = it is a constitution we are expounding.
(class 3) Various Political Checks on the Power of Judicial Review:
Other Judicial Review Checks:
1. Elections: Picks who gets to appoint Justices… although that’s not a primary concern
2. Article III, §1 – Impeachment of the Justices – Justices are appointed for life, and can only leave on resignation, death, or impreachment. You can be impeached for not being in “good behavior.” Problem with it: The reality of it is that its nearly impossible to impeach a justice
3. Article II, §2, Cl. 2 – The Appointment process = President nominates and the Senate gives advice and votes on the appointment. Problem = Purely Partisan
4. Amendment to the Constitution – Article V – difficult to do – requires 2/3 of both houses or a Convention called by 2/3 of the states which then must be ratified by ¾ of the states. Problem – difficult process, the constitution is supposed to be a long standing document not necessarily subject to fleeting concerns of the time.
5. Public Opinion = Judges could be influenced by majority public opinion in their decisions, but basically it doesn’t have much bearing.
6. Exceptions Clause:
a. Article III, §2, cl. 1 – the congress has the power to limit the amount of federal courts AND THE Supreme Court’s jurisdiction
b. Congress could technically erase the federal courts system bc the constitution only creates the supreme court from a strict reading of it
c. But in reality the courts will decide what this clause means so therefore it can’t be regulated by it.
d. Separation of Powers: Congress cannot destroy the essential role of the Supreme Court in the constitutional plan… The framers intended it to be a part of the checks and balances.
i.
Ex Parte McCardle:
Rule: the supreme court derives its appellate jurisdiction from the Constitution but Congress can limit that jurisdiction through exceptions.
This is an old ruling which goes against the majority of supreme court decisions today.
