CONSTITUTIONAL LAW SALOMONE SPRING 2014
JUDICIAL REVIEW AND CONSTITUTIONAL STRUCTURE
A. Origins of the Constitution
Function of the Constitution
o Originally ratified in 1789; Amendments in 1791
o Bill of Rights: not to be understood as finite set of rights
o Under Ninth Amendment: rights enumerated in the Bill of Rights are not the only rights enumerated to individual
o Protects against risk of changing the basic structure of government and the rules by transient majorities
o Helps to get a country running after there has been no institutional government
o Binds people in the future
Articles of Confederation
-Gaps in the Articles
o No taxing, commerce powers; no executive or federal judiciary branch; no common currency; no bill of rights
o Initial charge of 1787 meeting was to revise articles, but the end result was new document
Intent of the Founding Fathers of the US constitution
-Wanted to overcome limitations of the Articles of the Confederation; Did this by:
1. Established 3 branches of government
2. Established power of each of these 3 branches of gov.
i. Article I grants power to the Congress (legislative branch=House of Representative and Senate)
ii. Article II grants power to executive branch
iii. Article III grants power to the judicial branch
3. Made US Constitution a written constitution
4. The powers laid out by the US Con consisted of limited, enumerated power (enumerated power: a political power specifically delegated to a governmental branch by a constitution (aka express power)).
5. Limited, enumerated power was set up by US Con to prevent the abuse of sovereign power
6. Tried to prevent such abuse by setting up checks and balances and creating overlaps b/w the branches.
-Primary purpose of the US Con: To create and limit national government.
ü Too large of an emphasis on commerce (self-interest)
ü Fear of powerful and remote national government
ü New emphasis of c-mmere would give rise
ü Removing people from political process with no direct democracy
B. Origins and Theory of Judicial Review
No express mention of the courts power to review with finality the decisions of the other branches of government. Established in Marbury v. Madison
Pre-judicial review: Federalists (proponents for the US Con), who were for a central government with limited and defined powers, prevailed and the US Con was ratified in 1788 and then the Bill of Rights were added on. The Federalists said that the national majority should be manifested in Congress and the President should make public policy. On the other hand, the opponents for the Con were called Anti-Federalists who did not want the Bill of rights and thought that public policy should be made primarily by majorities in the states.
Marbury v. Madison- creates judical review for legistlative and exectutive actions
4 Justices of the Peace whose Commissions were signed and sealed, but never delivered. Marbury sued for his commission – Sought a writ of mandamus pursuant to 1789 Judiciary Act (“gave” the S. Ct. the power to issue writs of Mandamus to public officials.) Sought a Writ of Mandamus
§ Marbury has a right to the commission, there is a remedy for the failure to deliver the commission (mandamus), but the court does not have the authority to issue writs of mandamus.
§ Marshall found the grant of power in 1789 Judiciary act repugnant to the constitution and therefore invalid.
§ Important for three reasons:
– Creates authority for judicial review of executive actions
– Establishes that Congress cannot expand the original jurisdiction of the Supreme Court
– Establishes authority for judicial review of legislative acts by declaring §13 of the judiciary act of 1789 unconstitutional
§ The establishment of judicial reviewàThe Supreme Court has judicial review over acts of Congress and nondiscretionary executive act*
§ Held: Court says that Congress may not add to or diminish the court’s original jurisdiction & Court has authority to review legislative acts and nondiscretionary executive acts
§ Establishes authority for judicial review of legislative acts by declaring the judiciary act of 1789 unconstitutional àMarbury had legal right to commission because the president had already signed and made the appointment. Court issued a writ of mandamus to order the executive branch to approve Marybury’s commission, but it would be unconstitutional because the court did not have appellate jurisdiction
§ May appear that Jefferson won, but the court establishes long term authority
§ Essential nature of judicial review: “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.”
a. Executive acts that are NOT reviewable by the courts: Political in nature, Respect the nation (not individual rights), Discretionary (Ex: vetoing a bill or appointing an official)
b. Executive acts that are reviewable: Acts the legislature has imposed (an executive duty),Where individual rights are dependant on those acts, Ministerial – no discretion
Cohens v. Virginia: Authority of SC to review decisions coming from criminal courts as well as civil courts in which state was a party. Extends to ALL cases no matter whom the party→Marshall said state judges are appointed for a fixed term and cant always be trusted b/c they are vulnerable
Cooper v. Aaron
Attempt by the Arkansas Governor (Fabus) to delay desegregation by saying that they were not bound by judicial interpretation b/c they were not parties to the case.
Federal Judiciary is supreme in the exposition of the law of the Constitution
Court is the ultimate interpreter of Constitutional norms and the decisions are applicable in future cases (State government officials are bound)
C. Power to Review State Court Judgments
Martin v. Hunters Lessee: Extends judicial review to state court decisions as well
Action for ejectment brought by Hunter against Martin. Virginia Held in favor of hunter. Supreme court ruled in favor of Martin, Virginia refused to enter judgment in favor of Martin (b/c the Fed and State governments are Co-Sovereigns)
Court Found that based on the Supremacy Clause and Art III § 2 – the appellate Power of the US extends to cases pending in State CourtsàThe term appellate necessarily includes the idea of superiority. Constitution grants appellate power over all cases
D. Adequate and Independent State Grounds
If a given state law is challenged as a violation of the US constitution, it first must be determined whether the challenged law is valid under the state constitution.
Presumption against the adequacy and independence of the state grounds created in Long
Michigan v Long
§ When a state court decision fairly appears to rest primarily on federal law, or to be interwoven with federal law, and when the adequacy and independence of any possible state law ground is not clear from any opinion, we will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so.
ú If a state court chooses to use federal law only as persuasive authority, all it has to do is say so in the opinion.
Bush v Gore
Art. III § 2 cl. 2
SCOTUS had the authority to interpret the FL constitution (which provided for a recount) because it was a presidential election, so the state constitutional power derived from the federal constitution
E. The Utility of Judicial Review
Arguments in Support of Judicial Review
Majority interests are protected in legislature, so the court protects the minority interests
Done by Unelected officials – against normal principles of democracy
Gives us finality to disputes between the three branches of government
The court is limited to the information presented before it. Legislature can be more thorough and robust
The Constitution Is a Living Document
Difficult to correct Mistaken Interpretations of the Constitution – Court can be wrong
Fed Courts are Above the Political Fray
Other Branches of Gov’t May do things Haphazardly – Erosion of Constitutional Responsibility by the Political branches
Why the Counter Majoritarian Role is not an Anti-Democratic one
The court merely implements the will of earlier majorities
It is used to eliminate barriers to democratic participation – representation reinforcement
F. Ways of changing the Constitution
1. Textual sources
2. Popular movements
3. Natural and equal rights movements
Methods of Constitutional Interpretation
1 – Textual Method
Always our starting point, but many phrases do not have a clear and defined meaning.
2 – Historical Argument
Explore the intent of the Framers
3 – Structural Arguments
Look to see if the provision being interpreted is consistent with the scheme of the entire document
4 – Doctrinal Arguments
Precedent or departures from precedent – risky b/c constant overturning compromises integrity of court
5 – Prudential Arguments
Seen in (a) Separation of powers cases and (b) cases on standing
6 – Cultural Argument
Courts reliance on widely shared cultural norms of justice, fairness and autonomy
G. The Uneven Nature of Judicial Review – 3 Tiered Review
1- Minimal Scrutiny – The Constitutional “Default” Level of Review
The government act must be rationally related to any legitimate government objective
§ Presumption of legitimacy.
§ Burden is on the Challenger
§ Default for social and economic legislation
2- Intermediate Scrutiny –
The government act must be substantially related to an important government objective
§ Presumptive taint of unconstitutionality,
§ Burden is on the Go
eld that they lacked the constitutional Requirements of Injury in fact – Mentioned Above.
ii. Lujan v. Defenders of Wildlife
· Defenders of Wildlife, with 2 Named Plaintiffs, are suing saying that new gov’t rules will endanger animals in Sri Lanka and Egypt.
· No Injury In Fact
ú They fact that they someday hoped to return to these lands to see the animals again does not constitute injury – Scalia “such someday intentions” are no good (if they had a plane ticket –maybe)
ú No Redressability–Because these projects would likely proceed absent government funding
iii. Allen v Wright
· IRS were giving tax exemptions to private segregated schools. Led to White flight. Named Plaintiffs were parents of black children who would suffer (1) stigma of having to go to an interracial school and (2) deprivation of their ability to attend an integrated school.
· But – No proof that the parents would suffer personally from the stigma (no injury in fact) –they only alleged abstract stigmatic injury–and no evidence that cessation of tax exemptions would effect the racial composition of the schools (redressability)
2 Prudential Principles
1) Cannot Assert the rights of third parties
§ But Sometimes Allowed – For 3rd Party Standing there must be
1- A substantial or special relationship between the claimant and the third party (interests are connected or congruent) and;
2- Proof of the impossibility or impracticality of the third party asserting his or her own interest; and
3- A risk that the right of the third party will be diluted or lost unless the claimant is allowed to assert the third party’s claim.
2) Can Not Adjudicate Generalized Grievances, must be personal and concrete
§ But, Congress can establish citizen standing by, at a minimum;
ú Identifying the injury that it seeks to vindicate and relate the injury to the class of persons entitled to bring suit.
3) Complaint must fall within the zone of interests protected by the statute or by the constitutional provisions under which the claim is brought
§ You cant sue under a statute where congress never intended the effects of that statute to extend to the parties in question.
i. Third Party Standing – See above
ii. Citizen Suit – See above
iii. Taxpayer Standing
§ P may not sue as a taxpayer who shares a grievance in common with all other caretakers
§ Taxpayer standing has been allowed only to challenge government expenditures as violating the taxing and spending clause (Flast v Cohen Standards)
1- Taxpayer must challenge an expenditure made by congress under the Taxing and Spending Clause of Article I § 8 (It is not sufficient to allege an incidental appropriation of tax funds in the administration of an essentially regulatory statute)
· Americans United v Valley Forge – they challenged the act under the Property Clause (power to convey land does not come from taxing and spending clause)
2- The taxpayer must show that the expenditure transgresses a specific constitutional limitation on the Taxing and Spending power
· Ex. In Flast the Plaintiff Challenged the practice as a violation of the establishment clause.
· Furthermore, the dissatisfaction with the spending of discretionary funds does not give standing.
iv. Organizational Standing
§ Organization can sue in its own right by meeting all the elements of standing; or
§ Can assert the rights of those it represents by establishing
1 – That the members would have standing to sue independently (injury, causation, and redressability for at least one member)
2 – The interests asserted are germane to the associations interests
3 – Neither the claim asserted nor the relief requested requires the members’ participation in the suit.