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Constitutional Law I
South Texas College of Law Houston
Rhodes, Charles W. "Rocky"

Constitutional Law


Spring 2014

Functions of The U.S. Constitution

1. Establishes fed gvt & separates powers – Articles I-III. (The fed gvt has to find a power given to it by the Constitution before acting; but states are presumed to be capable of acting unless the Constitution forbids it.)

2. Dividing authority between states & fed gvt

3. Protecting rights & liberties

§ Note (test question): The Power to regulate commerce is laid out in the Constitution, but it was not in the Articles of Confederation. Also no power to tax under the articles!

· Article I: Legislative Branch- Congress (House of Representatives & Senate)

o Sets out powers & what Congress can do – limited & enumerated powers

· Article II: Executive Branch- President & Vice President

o Who can be president & what president can do. (Veto, appointments, pardons, etc.)

· Article III: Judicial Branch- SCOTUS & Congress can create lower federal ct.

o Establishes Jx (This was a compromise article between federalists & antifederalists)

Judicial Review is the ability of the courts to engage in review of legislative and executive action to ensure compliance w/ the Constitution. It was established by Marbury v. Madison.

· Marbury v. Madison – RULES:

o Judiciary may compel exec action only if it concerns an administrative duty/ministerial acts of the pres (if pres has specific duty or power – court can order him to fulfill it).

§ If it is discretionary/we don’t like it —> remedy is political process.

o SCOTUS can exercise Original Jx only over cases involving:

1- States suing each other

2- Foreign ambassadors

3- Foreign public ministers/councils

o Const is regulatory & limits Congress.

o Judicial pwr can’t exceed constraints of Art.III – Judiciary may review legsltve acts to declare on const’lty.

Modalities of Constitutional Interpretation

1. Textual: considers the words or phrases in the Const- what is said in the text. But the text is sometimes:

§ Ambiguous (due process; free speech issues) & Incomplete

2. Structural: Looks at what the text shows but doesn’t say. (Eg., All separation of powers arguments)

· Constitutional framework- making connections between the layout & diff phrases.

§ What does plain ‘necessary’ mean if there’s also an ‘absolutely necessary’

3. Historical: relies upon the intention of the drafters, the events that produced the provision, or similar kinds of appeals to history.

· Original intent – the mindset of the framers.

· Original meaning – what the words meant at the time they were written (how it was done then)

· Traditions – vectors of history

§ Eg. Interpreting 1st Am. as limited rather than absolute, b/c the founders arguably saw it as more restricted in scope than modern readers might, or b/c their public interpretation arguably didn’t protect certain kinds of utterances (e.g. defamation).

4. Doctrinal: looks at what courts have said the Constitution means. (case law.)

· Problems w/ this argument: Cts change their minds, realize mistakes; rules change.; May not have considered all the issues that are relevant today (eg, technological advances – not up w/ the times).

5. Ethical: Relies on moral or ethical grounds. Ethical argument emphasizes the rightness-or-wrongness of moral content of the interpretation. What authority can we look to for these arguments?

§ 1) The views of the majority of states, 2) International views, 3) Documents that underline U.S. mentality- Declaration of Independence, Gettysburg Address.

6. Prudential/Pragmatic: Looks at practical consequences of differing interpretations (i.e., “policy” argument).

The Courts’ Role in Constitutional Interpretation

Adequate & Independent State Grounds Doctrine:

If there are adequate and independent state law grounds for the decision, SCOTUS can’t review it.

§ Adequate – state law ground must support the state ct judgment irrespective of the federal issue.

§ Independent – state court must do something to make it clear that their decision was reached independently from the federal issue. (Plain statement, or otherwise clear that it is independent of federal law.)

o GR: If a state ct has intermixed the state and fed questions, SCOTUS will presume that the state court did NOT have adequate & independent state grounds. (it’s rebuttable as long as there’s plain language saying ‘this is based on state law’)

Justiciability Doctrines (Judge-made doctrines on what is appropriate for Judicial Review)

1. Prohibition on Advisory Opinions

The “Cases or Controversy” Requirement à “2 adverse litigants in an adversary proceeding seeking relief”

2 elements required of every case:

(1) Actual dispute between adverse litigants

(2) Substantial likelihood that a decision for the claimant will have some effect. (See muskrat v. US)

2. Standing (who?)

The question of who can bring suit- is π an appropriate party?

· Taxpayer standing:

o -Frothingham- no taxpayer standing to challenge gvt spending programs

o -Flast exception- spending under ‘taxing & spending power’ in violation of the Establishment Clause (which was to stop gvt’al aid to religion)

· The Taxpayer must show: 1. A logical link to their status & type of leg. Enacted

2. The Complaint cannot be a general problem. It must show Cong took $$ to support religion. (The Flast doctrine is very narrow.)

Constitutional Requirements for Standing (see Lujan p.56)

1. Injury in fact- π must show some actual or threatened injury, economic or otherwise.

· 2 elements required to prove injury in fact:

a. Concrete & Particularized (nature)

§ No abstract injuries not suffered personally.

§ No general ȼ that the gvt isn’t following the law

b. Actual or Imminent (timing)

§ Not conjectural or hypothetical

2. Fairly Traceable– The injury must be fairly traceable to the actions of the gvtl Δ.

· Must be a causal connection btn the injury & the conduct complained of.

· Allen v. Wright lacked traceability b/c Δ IRS gave out tax exemptions, but the problem is more traceable to the schools, & hard to say blacks would certainly integrate in previously discriminatory schools if they could. Too many steps to say that injury was caused by the IRS.

3. Redressability – asks the π: “If we give you what you want, will it solve your injury?”

· It must be likely that π’s injury will be redressed by a favorable decision.

· Allen case above also lacked redressability element ((Uy if no traceability, no redressability.))

Prudential Requirement: Prohibition on Generalized Grievances – taxpayer standing

**Standing is an issue in EVERY case heard. It cannot be waived as part of Art III SMJ!**

3. Ripeness (when?)

Pre-enforcement review of a statute, admin regulation, policy, etc. A claim is not ripe if it has not matured b/c all conditions or events that must occur to create the required injury have not yet come into existence.

· If all three of the following favor judicial intervention, it is ripe:

(1) What is the likelihood that the statute will be enforced?

(2) What is present harm or injury if review is denied?

(3) Is there need for further factual development?

· Poc v. Ullman- π sued over a statute that banned contraceptives, but the case was not ripe b/c the state had never attempted to fully prosecute any case under the statute. (Not only was there no injury in fact,) there was no ev π would be prosecuted for acting in violation of the statute.

4. Mootness (when?)

When the claim/case has ceased, it is moot. (Ex: when Enron guy died while waiting to appeal, the claim died).

§ Arizonans for Official English- state employee challenged a provision to the state constitution, but her claim became moot after voluntary departure from her job

§ Exceptions:

§ Cases that are “Capable of repetition, yet evading review” (Roe v. Wade-pregnancy)

1. Capable of repetition to the same π.

2. Short duration injury

§ Class Action

§ Δ’s voluntary cessation of the action.

5. Political Question (what type of claim can be heard?)

Certain subject matters are inappropriate for judicial review; rather it should be left to the political branches.

§ Whether or not something is a political Q depends on 3 things:

(1) Textual commitment of the issue to a coordinate branch of gvt. – The text & structure of Constitution indicate issue is reserved to the political branches.

· Separation of powers issue: *Rhodes thinks this one has the strongest claim to legitimacy*

o Can u show in the txt of the Const that the issue belongs to another branch?

o Ex: Impeachment (as long as constly mandated procedures were followed such as 2/3 vote)

(2) Judicially discoverable & manageable standards – Court doesn’t like to get involved when there is a lack of such standards; i.e., when it is an area outside judicial expertise.

· Judicial competence:

o What types of things is the judiciary good at; can’t come up w/ a judicially relevant standard; is this w/in the competency of the judiciary to decide?

o Can it be decided w/o a non-judicial policy determ


· (Even if the gvt is doing something wrong/dumb, we should let the political process work that out.)

-The gvt almost always satisfies the RB test in challenges.

III. The Intermediate Levels of Scrutiny

· Undue Burden (Casey- abortion):

o If the purpose or effect of the regulation is to place a substantial obstacle in the way of the woman deciding to have an abortion, it is unconstitutional.

· Balancing Test (the right isn’t 100% fundamental, but close):

o Balances personal & privacy rights with the state’s interest.

· Heightened Scrutiny (or “Liberty interest vs. government interest’):

o Examines the importance of the gvt’s interest & the extent to which the reg. serves these interests.

Rise & Fall of Economic Substantive DP

Calder v. Bull – Claims: ex post facto law & anti-constitution. Issue: How to define protected rights?

· Chase- argued that there is a natural law of principle. His theory was that the social compact gave rise to rights protected by natural law, & that this principle was implicit in the constitution.

· Iredell- can’t possibly identify those things that every1 apparently agrees on, so we must use text in constitution.

Barron v. Baltimore – The city had dried up this man’s wharf (destroyed the value of his property). He argues that under the 5th amendment, the gvt cannot take my property. Held: The 5th Am prohibition on taking private prop for public use w/o just compensation did not apply to the states.

Slaughter House Cases – Butchers challenged Louisiana’s grant of monopoly to a particular firm to operate slaughterhouses in NOLA. Claim: violated their PIC, DPC, EPC rights. Court says the ‘natural’ law issues are the types that fall under state citizenship. Holding: butchers don’t have a protected privilege to have their jobs under state citizenship.

[PIC basically taken out of const by these cases!]. PIC only protects federal privileges (“citizens of US”).

The PIC only applies to rights that owe their existence to the fact that there is a national government.

Effect of these cases? Greatly expanded DP & EP (originally only meant for slaves).

Munn v. Illinois – Illinois fixed the max price of grain storage –> Upheld. Holding: No DP violation b/c public interest –> Infers DP violated if not public interest.

o Police Power (regulatory power) – for “things that are clothed with a public interest”.

Nebbia v. New York – Ct sustains, as a legit exercise of police power, NY’s regulation of min prices for retail sales of milk. Court says that (since cts shouldn’t interfere if legislature acts reasonably), we will presume its constitutionality unless you can show that price control regulation is unreasonable, arbitrary, or capricious.

· Unconstitutional only if arbitrary, discriminatory, or irrelevant to legislative policy.

Williamson v. Lee Optical of OK – Legislature was protecting optometrists by enacting a statute that made it unlawful for an optician to replace eyeglasses except w/ a written prescription from a licensed ophthalmologist or optometrist. Ct upheld the legislation. Lvl of Scrutiny: RB. Look to legislative intent. Presume valid unless arbitrary & irrational.

· Rational basis review (lowest level of scrutiny): *this case developed Rational Basis*

o As long as there is any rational basis for the legislation, it’s gonna be upheld

o i.e., as long as it’s rationally related to a legitimate government purpose.

New Orleans v. Dukes (p. 353) – NOLA city ordinance prohibited pushcart vendors from plying their trade in the French Quarter. The ordinance grandfathered 2 longstanding vendors, & competitors claimed a denial of EP. Ct upheld the ord, incl. GF clause, reasoning that preserving the positions of longstanding vendors reflected a reasonable classification.