Con Law, Rhodes, Spring 2014
1. Text (Textual interpretation)
a. Not self-defining
b. Not exhaustive
2. Structural Analysis – what the text shows but doesn’t say (ex. separation of powers)
a. relationship of government branches
b. how the constitution fits together
1. Individual 2. Collective
– placed in bill of rights
3. Historical – historical circumstances around which it developed
1. Individual 2. Collective
– long history of – protect states from
individuals using arms invasion from federal
against tyranny, etc gov; counterweight
– protect self when – there have always
gov. unable to restrictions to the right
i. Original Intent – we are bound to what the people who wrote this intended (not widely held)
ii. Original Meaning
5. Policy (prudential)
6. National values
a. Bring in a valued national document etc (i.e. declaration of independence)
b. Opinion polls sometimes are thrown in (weak)
II. Judicial Authority
a. Marbury v. Madison
i. Big Picture holding: Marbury loses because the Supreme Court doesn’t have jurisdiction because the Judiciary Act of 1789 is unconstitutional. Establishes judicial review.
1. Does Marbury have the right to his commission? Yes
a. President has to nominate you
b. Advice and consent
c. needs to be signed and sealed, needn’t be delivered
2. To what extent can the supreme court tell the executive branch what do to?
a. Discretionary/political acts, anything not required by law, court can’t do anything (ex. Appointments, etc); political questions are not resolvable in a court of law
b. Ministerial, when owed a specific legal duty, court does have review; where someone’s individual rights are at issue
c. Marshall makes a structural argument to come up with this; he says that if you look at the structure of the constitution there are some things that have to be political, i.e. appointing ambassadors, etc
d. There are other things that are ministerial because we are a nation of laws, not of men; laws are above everyone (national values argument)
e. Where the executive has a legal duty to act or refrain from acting, the federal judiciary can provide a remedy, including a writ of mandamus. (Example of judiciary’s power to review executive acts: United States v. Nixon)
3. Why is §13 of the Judiciary Act of 1789 unconstitutional?
a. §13 interpreted as allowing original jurisdiction (questionable reading the statute? Both Art III and §13 were drafted by Oliver Ellsworth, a former chief justice of the s.c.);
b. M compares §13 with Art. III §2 (states that original jurisdiction where state is a party, ambassadors, public ministers) and states that congress, by statute, cannot add to the original jurisdiction given by the Constitution;
c. Apparently congress can subtract
4. How does the court justify the judicial review of legislative acts?
a. Structural argument regarding what is judicial power; emphatically the province of the judiciary to declare what the law is;
b. National values argument regarding if we are going to have a constitution it has to be paramount; why go to the trouble of writing a constitution if it can be blown away easily
c. It also says in the supremacy clause that the constitution is the supreme law of the land; only laws that do not conflict with the constitution are the law of the land (structural argument redux); Constitution imposes limits on government powers and these limits are meaningless unless subject to judicial enforcement.
5. Why does the judiciary get to decide what the law is over the congress or the executive?
a. Long debated
b. Rhodes’ theory that the Constitution has a default that all three branches have to come to the conclusion that something is constitutional
iii. What Should be Taken Away from this case?
1. Constitution is regulatory; provides meaningful restrictions on government
2. Congress can’t increase jurisdiction of the S.C. beyond the restrictions of Art. III
3. The court can compel the executive
4. The S.C. has the power of judicial review (duh! What this class is about)
b. Review of State law:
i. Supreme Court also reviews the constitutionality of the acts of the states (not as controversial, pretty much accepted)
ii. Martin v. Hunter’s Lessee – basically S.C. trumps state s.c.; structural argument regarding the constitution is the supreme law of the land and can review decisions of state supreme courts; policy of insuring uniformity
iii. Cohens v. Virgina – Two brothers convicted in Virginia state court of selling D.C lottery tickets in violation of Virginia law, they appealed to the S.C.O.T.U.S. and Virginia argued that the S.C. has no authority to review in general and in criminal cases; reaches the same result as Martin but in a criminal case; Criminal defendants can seek S.C. review when they claimed that their conviction violated the Constitution.
iv. Cooper v. Aaron – school desegregation case; S.C. has authority to review the constitutionality of state laws and actions by state officials.
c. Justiciability Jurisdiction – subject matter jurisdiction
i. Art. III,§ 2
1. Congress can imp
be suffered personally; where Article III standing requirements are met
c. constitutional rights – must be suffered personally
d. aesthetic and environmental injury
e. economic harms or facing possible criminal prosecution for actions
iii. Not judiciably cognizable?
a. Government is not following the law
i. Why? It is the executive’s job to make sure the government follows the law
b.Abstract stigmatic injuries
i. Why? Not suffered personally;
ii. too attenuated
i. policy reasons – conserve judicial resources;
iv. Time of the injury
a. actual or imminent rather then hypothetical, conjectural, or speculative
a. Allen v. Wright
§ Facts: tax exemptions to segregated private schools challenged
§ No standing, because the injury was not suffered personally by the public school students; abstract stigmatic injury is not enough; also no causation because they could not trace the cause of the segregation back to the IRS
b. Lujan v. Defenders of Wildlife
§ No standing because no injury to affidavits; no redressibility. The plaintiffs lacked standing because they could not show a sufficient likelihood that they would be injured in the future by a destruction of endangered species abroad.
§ Should not be read as a broad limit on Congress’s ability to authorize suits.
c. City of Los Angeles v. Lyons
§ Involved a suit to enjoin as unconstitutional the use of chokeholds by the Los Angeles Police Department in instances where the police was not threatened with death or serious bodily injury.
§ No standing, because couldn’t prove injury would happen to that particular plaintiff again.
d. Federal Election Commission v. Akins
§ A group of voters bought suit challenging a decision by the FEC that the American Israel Public Affairs Committee is not a “political committee” subject to regulation and reporting requirements under the Federal Election Campaign Act of 1971. A federal statute authorizes suit by any person “aggrieved” by the FEC decision.
§ Standing, because an individual was injured by not being able to get information that was allowed by a statute; statutory right