KELSO CONSTITUTIONAL LAW OUTLINE Fall 2014
I. FEDERAL JUDICIAL DEPARTMENT
A. Sources of Constitutional meaning:
Main Focus of Interpretation style
More Specific Interpretive Tasks
Literal or plain meaning of text
Purpose or spirit of the text (NL)
Verbal maxims / related provisions
Policy maxims / structural arguments, e.g. principles of federalism and SOP (NL)
Specific historical evidence / specific historical intent & concepts
General historical evidence / general historical intent & concepts
Subsequent Events / Considerations
Deference to legislative or executive practice
Common / popular social practices & norms
General reasoned elaboration of law
Judicial restraint considerations
Policy concerns, e.g. social justice & equality
1. Formalism = law conceived as mechanical rule application of positive enactments of the Constitution.
a. Focus on:
i. Literal text
ii. Contemporary context = verbal maxims & governmental principles on which the Constitution is based
iii. Specific, contemporary historical accounts = Fed. Papers, diaries, etc.
2. Holmesian = defers to dominant branches of gov’t, unless actions violate unambiguous text of the Constitution.
a. Focus on legislative and executive practice
3. Instrumentalism = says that judges have a role in promoting a just and good society by serving as an active and vigorous counterweight on behalf of minorities against more traditional, majoritarian interests.
4. Modern Natural Law = says that judges have a role to play in ensuring a just society; however, natural law judges are more disciplined in their activism than are instrumentalists.
a. Focus on:
i. Natural law principles of the Enlightenment
ii. Common-law precedent; and reasoned elaboration of the law over time.
B. Judicial Review & Marbury = if an act of Congress conflicts with the Constitution, then the Sup. Ct. has the power to declare that law unconstitutional and therefore null and void.
1. Why does the Ct. have the power of judicial review?
a. Separation of powers = if Congress and the President were allowed to decide what is and what is not constitutional, then those branches would have essentially unlimited power, which was not the intent of the framers.
b. Written constitution = the powers of the legislature and the executive are written and defines, so it is up to the Ct. to determine an overreach.
c. Specific history / Fed. Papers = support Marshal’s interpretation
C. Limits on the Fed. Judiciary Power
1. Art. III limits:
a. Sup. Ct. original JRD = cases involving:
i. Foreign Ambassadors
ii. Civil cases in which the state is a party
iii. Disputes b/t the states
b. Supt Ct. Exclusive Original JRD = cases involving:
i. Foreign ambassadors
ii. Disputes b/t the states
c. Appellate JRD = under the Exceptions Clause, Congress may limit the types of cases that the Sup. Ct. may review on appeal.
2. Federal Ct. Supremacy = Martin v. Hunter’s Lessee says that the Sup. Ct. is the supreme authority on issues of Fed law, even if the cases begin and are originally heard in state ct.
a. Dual theory of sovereignty = State Sup. Cts are the supreme authority on issues of state law only.
3. Standing Doctrine = Art. III confers standing (right to sue in fed ct.) to a party that can prove a “direct personal interest” in the law challenged; a mere abstract or unparticularized grievance is not enough to state a “case” or “controversy.”
a. Past or present “injury in fact” = Allen v. Wright says that an injury must be concrete and particularized—not an abstract injury common to an entire class of people, e.g. the stigmatization of African Americans.
i. Mere generalized grievance not enough = a generalized grievance is one shared by millions of other folks, e.g. the mere stigma attached to all black folks as a result of the violation of fed law preventing the integration of private schools.
ii. Speculative injury = Lujan says an injury
relationship, e.g. doctor / patient + (2) “some genuine obstacle” that impedes the person’s ability to assert his own rights, e.g. privacy concerns or economic incentives.
iii. Organizations = may bring cases on behalf of their own members as long as the interest is germane to the way in which the organization has defined itself.
iv. States = may sue on behalf of their own citizens, e.g. MA v. EPA
v. Members of Congress = a majority of the chamber must join the suit.
vi. General equitable discretion = the ct. may for any equitable reason say that they will not hear the case.
4. Ripeness = deals with the timing of a lawsuit and turns primarily on two factors: (1) whether waiting would allow the facts to develop or crystallize and (2) whether waiting will increase the harm experienced by the party.
a. Potential for imminent harm & Abbott Labs = says that even though a statute has not yet been violated yet, if future violation would impose the threat of serious penalties—criminal or civil—then the issue is ripe.
b. High compliance costs = if complying with the law would impose a serious burden or increase uncertainty, then the issue is ripe.
c. Contingent future events = a claim is not ripe if it rests on contingent future events that may not occur, e.g. too speculative.
d. Abstract interests not ripe = if a statute poses even an immediate threat to an abstract interest, such as a “ threat to federalism,” then the issue is not ripe.