CONSTITUTIONAL LAW OUTLINE
PROFESSOR KELSO
OUTLINE FOR POSSIBLE QUESTION 1 TOPICS:
I. WHAT JUDGES USE TO DETERMINE MEANING OF CONST.
A. What does the text say?
§ This refers to the actual language of the constitution, such as “to be president a person must be 35 yrs old & born in the USA.
1. look only at the language (words) used in the clause
B. What is the purpose of the text?
§ This refers to the intent of the framers when they drafted the constitution
2. look at the words used and the purpose of the framers
C. Arguments of structure:
1. context- when one places the provision in question in context with others that may work with it to form govt. structure.
2. Federalism- the balance of power b/w fed. and state govt.
3. Separation of power- what did the framers have in mind when they were separating the powers among the 3 branches of govt.
4. Role of the court- what should be the role of judicial decisions
D. History:
· Look at the historical sources to help us understand what the framers had in mind and what they were trying to do with certain clauses
· Did the framers have a specific intent when they drafted the constitution?
· What was the general concept the framers may have aimed at when drafting a constitutional issue?
*this is known as “contemporaneous with ratification”; it refers to what they meant when they drafted the constitution.
E. Subsequent Events
1. Legislative or Executive practice- what have the judges and legislature think the constitution gave them power to do. Have these branches exercised a certain power since the constitution was drafted and has it become known as a power they possess. (i.e. Have presidents always thought they had a certain power and exercised it?) Also, what powers has the legislature uses subsequent to the drafting of the const. ?
2. Judicial Precedent- what have the judges in the past thought about their powers under the const., and what do modern precedents say. History may say one thing, but judicial precedent may hold another. Modern decisions show where the law is moving.
3. Social Policy- this refers to what outcome would be socially acceptable. More of a non-interpretive view, rather it looks to see which reading of the const. Would provide the most socially acceptable outcome. (1954-1986)
MAJORITY APPROACH TODAY:
· We must look at each of the above to determine the outcome of a case that is based on a reading of the constitution.
II. INDIVIDUAL INTERPRETIVE BIASES (decision-making styles)
1. TRADITIONAL NATURAL LAW APPROACH: this refers to the approach that the judges should use precedent to decide cases. The judges should decide what the const. Means and decisions should be from the natural reason applied to the human nature. Judges should pay great attention to the traditions of Anglo-American ways and precedents. (1789-1873)
2. FORMALIST: this interpretation uses the literal text and specific intent of the framers only. They do not like to look at the purpose of the framers, rather the specific intent at the time they drafted. (1873-1937)
3. HOLMESIAN: this view supports a strong deference to leg. And exec. Practices to determine what the const. Framers intended. These advocates do not trust the judicial interpretation based on a judge’s intuition of what would advance sound social policy or a natural law approach. (1937-1954)
4. INSTRUMENTALISM: this refers to the interpretation that will provide the most acceptable outcome (social policy based) **most liberal opinions come from the court in this era** (1954-1986)
5. MODERN NATURAL LAW- judges do have a duty to promote a sound just society, but their intervention should be done with a resort to principles of a natural law approach, not merely an instrumental approach which would have the court standing on the side of those individuals that seem to be left out of main stream society. The approach should be one that follows the natural law approach but updated a bit. (like people should not be judged or discriminated against for things they can not control (i.e. Race) (1986-present)
A. PURPOSE OF DUAL SOVEREIGNTY
(1) DOUBLE SECURITY (TWO CHECKS FOR POWER ABUSE)
(2) ASSURES DECENTRALIZED FED. GOVT.
(3) BETTER MEANS TO SATISFY THE PEOPLE
III. JUDICIAL REVIEW OF STATUTES
“THE UNITED STATES SUPREME COURT IS THE AUTHORATATIVE INTERPRETER OF THE US CONSTITUTION”
A. JURISDICTION OF THE SUPREME COURT
1. ORIGINAL JURISDICTION
(a) Exclusive- “over cases with ambassadors, public ministers, or consuls as defendants, or where it is State v. State
(b) Non-exclusive- “ over cases where A, PM, C are plaintiffs or State v. Citizens, foreign citizens
2. APPELLATE JURISDICTION: congress has large control over their appellate jurisdiction and can expand or contract it.
(a) dist. Ct. decisions
(b) writs of prohibition
(c) mandamus – warranted by law
1. The interpretation of the supreme court controls over the federal legislature (this was shown in Marbury v. Madison when the court decided that the judiciary act was unconstitutional because it expanded the original jurisdiction of the supreme court.)
2. They also control over the federal executive branch. In US v. Nixon, the court ordered Nixon to hand over the tapes, after he tried to plead his absolute immunity due to his executive position)
3. It also controls over the state leg. And exec. Branches (Cooper v Aaron, in which the Arkansas state govt. thought they did not have to comply with the Brown v Board decision, they were wrong)
4. It controls over the state supreme courts (martin v hunters lessee)
IV. POWERS OF THE LEGISLATIVE BRANCH (CONGRESS)
A. IMPLIED POWERS: NECESSARY & PROPER CLAUSE
1. McCulloch v Maryland: Congress created a bank, and used the Necessary and Proper Clause to say they had the power.
“Congress shall have the power to make all the laws which are necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the constitution…”
· Related Provision Argument: they did not say absolutely necessary like they did in Art. 10, so they did not mean absolutely necessary, rather just useful or convenient.
· The clause was in sect. 8 of Art. I, which grants powers to congress, and does not limit their powers.
· 10th amendment only says the state has the powers that are not delegated to the federal govt. (it does not say expressly delegated, only delegated. So the powers could by implied powers.)
· History: framers only turned down the bill of congress creating corporations, this is not a corporation
· Leg. Practices: this was the second bank created, so the first one did not get opposed, and this shows the powers were used before.
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he desired result and the spending; if it is for a specific reason and is for general welfare of people, then it is ok.
Example: withholding highway funds if a state does not increase gun control. These two are not rationally connected. Whereas highway funds and drinking age are (drunk driving by teens).
(b) Once again, cannot covertly regulate an activity by using the spending power as a coercive tool.
(c) But, so long as the conditions upon giving money to states is made clear and unambiguous then it is ok.
South Dakota v Dole: this case was about the state having the right to control its drinking age (21st amend.). Congress said they would not give the state $ if they did not raise their drinking age to 21. This was found to be an ok use of spending power because it passed the following requirements: DOLE TEST:
(1) rational relationship b/w spending and result
ex. Highway funds & gun control = no connection
Highway funds & drunk driving = connection
(2) conditions were clear & unambiguous
(3) it was for the general welfare of the people of the state
(4) it was found that it was not a coercive method because the consequences of non-compliance was not destructive (5% withholding of highway funds)
**the court alluded to the fact that at some point the incentive scheme (5% withholding) could become coercive, but they did not say when. (maybe 10% would have been too harsh?)
D. 10TH AMENDMENT
TEXT: “The powers not delegated to the united states by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”
· this places a limit on the broad powers of the fed. govt.
· the fed. govt. cannot infringe upon a state’s rights.
Garcia Case:
· this case was about the San Antonio Metro. Being regulated by the fed. govt. regarding wages and overtime requirements. It held that states could be regulated by the fed. legislature, overruling past precedent (natl. league of cities).
New York Case:
· this case was about the fed. govt. regulating the disposal of toxic waste. The fed. legislature gave the state incentives to create their own waste disposal sites.
(1) The first was that the states could charge higher rates to those states that did not create sites (ok because gives states an option)
(2) the second was the states could be charged with higher surcharges if they did not meet the deadline (ok because it is the leg. Regulating the state, and not telling the state how to regulate)
(3) the third incentive was that if the states did not create a site they would take ownership of the problem (this is not constitutional because it tells the state to pass a regulation for the clean-up or it will own the problem.
