Constitutional Law – Prof. Salomone, Fall 2009
Broad Topic Outline
· THE ROLE OF THE COURTS
o Judicial Review and Constitutional Structure
§ Power to review state court judgments
§ Adequate and independent state grounds
§ Utility of judicial review
§ Methods of constitutional interpretation
o Doctrines Limiting the Scope of Judicial Review
§ Political controls
§ Congress and federal court jurisdiction
§ Justiciability
· Advisory opinions
· Standing
· Ripeness
· Mootness
· Political question doctrine
· ENFORCING THE CONSTITUTIONAL ALLOCATION OF GOV’T POWER
o Limits of Federal Legislative Power
§ Necessary and Proper Clause
§ Default Rules
§ Commerce Clause
· Scope
· State autonomy limits
§ Taxation
§ Spending
§ Regulation in Aid of War-Making
§ Foreign Affairs
§ Enforcing the Reconstruction Amendments
o State Power over Interstate Commerce
§ Dormant Commerce Clause
· Modern doctrine
· Discrimination
· Neutral burdens
· Effects/purpose
· States as market participants
§ Privileges and immunities (Art. IV)
§ Consent
§ Preemption
o Separation of Powers
§ Executive action
· Domestic affairs
· Foreign affairs
§ Legislative action & the administrative states
§ Immunities and privileges
· INDIVIDUAL RIGHTS
o Due Process
§ Procedural due process
· Interests
· Process that is due
§ Substantive due process
· Incorporation
· Economic rights
· Privacy rights
o Contraceptive use
o Abortion
o Family relationships
o Right to die
o Consensual sexual choices
o Equal Protection
§ Minimal scrutiny
· Illegitimate purposes
· Enhanced minimal scrutiny
§ Strict scrutiny and suspect classifications: race/ethnicity
· Purposefulness
· Race and ethnicity
· Official segregation
· Affirmative action
§ Lawful resident aliens
§ Intermediate scrutiny
· Gender
· Illegitimacy
§ Fundamental rights
· Voting
o Denial
o Dilution
· Access to courts
· Right of interstate migration
o Free Expression of Ideas
§ Content-based regulation
· Incitement of immediate crime
· Obscenity and pornography
· Fighting words
· Hate speech
· Offensive speech
o General rule
o Hostile audiences
o Indecent speech
o Indecency, Cable TV, Internet
· Commercial speech
§ Content-neutral regulation
· Time, place, manner of speech
· Expressive conduct
· Secondary Effects Doctrine
§ Government as Sovereign and Proprietor
· Public forum
· Public education
· Deference to prison and military administrators
· Public employment
· Public sponsorship of speech
§ Vagueness, overbreadth, prior restraints
· Overbreadth
· Vagueness
· Prior restraints
§ Implicit expression rights
· Freedom of association
· Freedom not to speak
o Religion Clauses
§ Free Exercise Clause
· Generally applicable laws
· Legislation that targets religious conduct or belief
§ Establishment Clause
· Financial aid to religion
· Endorsement or coercion
o Public schools
o Adoption of religious symbols
· Accomodation
o Cessation of power to religion
o Religious exemptions
Detailed Outline
· THE ROLE OF THE COURTS
o Judicial Review and Constitutional Structure
§ Marbury v. Madison (1803)
§ Power to review state court judgments
· Martin v. Hunter’s Lessee (1816)
o Squabble over land in VA. SCOTUS reverses VA Sup. Ct., which refuses to follow its instructions to remand! Another appeal.
o Judicial power extended to cases, not courts; can’t exercise constitutional appellate jurisdiction w/o reviewing state courts
o Supremacy clause
o There are const’l limits on state legislative/executive power, why not judicial power?
o State court review needed for uniformity
· Cohens v. Virginia (1821)
o Court assumes power to review criminal judgments
§ Adequate and independent state grounds
· The Supreme Court will not review a judgment of a state court with adequate and independent state law grounds
· That is, if the case would come out the same way after correcting federal law, no reason to review
· Need BOTH adequacy and independence
· If the adequate and independent state law grounds are not apparent on the face of the opinion, court will assume state court decided case that way because federal law required it
· Michigan v. Long (1993)
o Search & seizure case – state high court reverses conviction
o State appeals, defendant says it was decided on MI law
o It wasn’t clear whether MI court was using MI constitution or federal constitution
o Plain statement required
· Bush v. Gore (2000)
o Review of state election law, but it’s presidential election
o Rehnquist concurrence: state legislature exercising constitutionally-granted power to determine electors
§ Clearly expressed intent of legislature must prevail, regardless of what state court says
o Dissent 1: Art. II doesn’t give fed. judges special power
o Dissent 2: States can organize themselves as they see fit
§ Utility of judicial review
· Arguments in support
o Protect minorities
o Broad, living document needs interpretation
o Individual rights
o Stability
o Judicial independence
· Arguments against
o Overturns will of majority
o Judicial independence (no accountability)
o If SCOTUS gets it wrong, only const’l amendment will correct it
§ Methods of constitutional interpretation
· Interpretation vs. non-interpretation – natural law
o Calder v. Bull
· Textual method – plain language
· Historical methods – original intent, original meaning
· Structural arguments
· Doctrinal arguments – precedent
· Prudential arguments (Michigan v. Long req’ment of plain statement)
· Cultural arguments
§ Levels of scrutiny
· Minimal scrutiny – rational basis review
o Law must be rationally related to a legitimate gov’t interest
· Strict scrutiny
o Law must be necessary to achieve a compelling gov’t int
e. Adv. Comm’n (1977)
· Ripeness
o An issue is unripe if future events may render decision unnecessary
o Ripeness requires that plaintiff
§ Has suffered harm already;
§ Is faced with “specific present objective harm;” or
§ Is “under threat of specific harm”
· Mootness
o An issue is moot if past events have rendered decision unnecessary
o Exceptions to mootness
§ Continuing harm to plaintiff
§ Likelihood of future recurrence of past harm
§ Issue capable of repetition but evades review
o DeFunis v. Odegaard (1974)
§ Student challenging discrimination in law school admissions
§ Admitted anyway
§ By the time it gets to SCOTUS, student in last semester of law school
§ Moot; Law school could not prevent graduation now
§ Others could sue on their own – plaintiff not likely to face same situation, didn’t sue as a class
o Roe v. Wade (1973)
§ Abortion case – pregnancy is only 9 mo.
§ Not moot; evades review, plus it was a class
o Bowers v. Hardwick (1986)
§ Challenge of GA sodomy laws
§ DA decided to throw out the case
§ Not moot
· Political question doctrine
o Six strands of the doctrine:
§ a textually demonstrable constitutional commitment of the issue to a coordinate political department; or
§ a lack of judicially discoverable and manageable standards for resolving it; or
§ the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or
§ the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or
§ an unusual need for unquestioning adherence to a political decision already made; or
§ the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
o Baker v. Carr (1962)
§ Tennessee reapportionment hadn’t happened in accordance w/ TN constitution, so voter dilution
§ There was standing to sue under equal protection clause
§ Tennessee legislators weren’t about to change the policy that put them in power
o Powell v. McCormack (1969)
§ Speaker of the House refused to seat Member because Member had supposedly misappropriated funds and refused to pay a NY judgment
§ Member sued, Speaker invoked PQ doctrine
§ House could judge qualifications of its members but expel a member only w/ 2/3 vote – textual commitment to Court to determine issue
o Bush v. Gore (2000) (Ginsburg, J., dissenting)
§ Ginsburg says in FN that this is a political question – resolution of disputed Presidential elections is a matter for Congress
