Constitution is not a legal code.
Stronger central government then provided by Articles of Confederation
Supreme Court has only political capital. No purse, no sword.
They are aware that they have limited political capital and are mindful of where they spend it.
They hesitate to make policy decisions because they are unelected.
They exist as a countermajoritarian institution.
Six different ways to interpret the Constitution.
Textual: look at the text
Prudential: do cost-benefit analysis
Ethical: what is moral
Historical (Originalism): what did the framers think
Structural: look at structure of government for answer
Separation of powers – the legislature makes the laws and the executive enforces them.
Doctrinal: look at case law
Marbury v. Madison: court can review laws and refuse to enforce them.
Judicial Power Clause
The Constitution is the will of the people and it trumps the will of the legislature.
Somebody must be there to say where the line is crossed.
Six Factors to determine if it is a political question (from Baker v. Carr)
If there is a textually demonstrable constitutional commitment of the issue to a coordinate political department, (textual)
A lack of judicially discoverable and manageable standards for resolving it, (textual)
The impossibility of deciding it without an initial policy consideration of a kind clearly for nonjudicial discretion, (prudential)
The impossibility of a court’s undertaking independent resolution without expressing a lack of respect due coordinate branches of government, (prudential)
An unusual need for unquestioning adherence to a political decision already made, and (prudential)
The potentiality for embarrassment from multifarious pronouncements by various departments on one question. (prudential)
Qualifications of congressman: not political. In constitution. (Powell v. McCormack)
How to terminate a treaty is a political question (Goldwater v. Carter)
Article III requires the following in order to invoke court’s authority:
The claimant has personally suffered some actual or threatened injury, AND
Can’t be speculative, or a generalized greivance
The injury must be fairly traceable to the challenged action and can be redressed by the court.
“Zone of Interest:” If you are in the class of people contemplated by a challenged statute or by the constitution, you have standing to sue if you’re affected by it.
Imminent threat of injury needed (Lujan v. Defenders of Wildlife: claimant said she might visit crocodiles. Didn’t say she planned on it.)
NSA Wiretapping: lawyers, journalists, and academics have standing to challenge law.
Injury: can’t talk to clients on phone, must spend money to go to meet with the
instrumentality of interstate commerce.
Activities that have a substantial effect on interstate commece.
Jones & Laughlin: regulation of labor has a substantial effect on interstate commerce.
Raich: growing marijuana affects national market
Note: Justice Thomas argues against the Substantial Effects test, saying that if the framers intended it, there would be no need for many of the other powers listed.
Substantial Effect Analysis:
Regulated activity must be:
Part of a class of local activities connected to an interstate market
Congress must have:
Rational basis for concluding that the activity substantially affects interstate commerce, and/or
Rational basis for concluding that regulation is a necessary part of a comprehensive regulatory scheme.
Findings and a statutory judicial “nexus” are helpful but not required.
Other things to consider:
Wickard: Aggregation principle: it doesn’t matter if that particular activity doesn’t have a very big effect. We look at the effect if everyone did it.