Con Law Outline
Professor Barrett – 2009
Endurance – one major prerogative of the constitution is its endurance.
–Founders thought: how can we make a document that will last?
–Write concisely, in generalities that allow for flexibility.
Types of Provisions
–Structural provisions – operational powers, creating the edifice.
–Rights given explicitly to the people to insure against the threat inherent in gov’t structure (Mostly in Bill of Rights, and Amendments)
Criticizing the Constitution – an “undemocratic” constitution
I. The Judicial Function
A. Constitutional Origins & Text
B. Judicial Power and Judicial Review
1. Judicial Supremacy – the Supreme Court, not congress, has the authority to review the constitutionality of statutes passed by Congress.
a. Judicial supremacy could have spelled out explicitly in the Constitution, but it wasn’t. (Some other constitutions do include clauses on judicial supremacy.)
b. Why has judicial review been a successful system?
–Court withholds its review except for the most important cases
–Court stays with precedent, does not overrule itself
–Court doesn’t make decisions far out of line with public opinion
–Court is an apolitical institution
–We accept it! (probably the real reason)
2. Review of State Court Judgments – the Supreme Court may review state court decisions but only to the extent that they are based upon federal law
3. Adequate and independent state grounds – if there was an “independent and adequate” state ground for the state court’s decision the Supreme Court cannot review, even if a matter of federal or Constitutional law is involved.
–If state court is ambiguous as to the basis for its decision (i.e. we don’t really know the basis for the state decision), the Court can grab the case; creates presumption in favor of deciding on a federal basis!!
–But what if there is some small federal component of the state decision? Can a state court simply state that it is making its decisions based upon State law?
4. Utility of Judicial Review
–Counter-majoritarian; prevents tyranny of the majority – assumes that the constitution has a meaning entirely separate from today’s majority viewpoint
–Much easier for the court to make law than the legislature, or amending the constitution; legislature can always overturn the court if it desires.
–Stability – someone has the last word on Constitutional issues
–Bad because it allows a tyranny of nine judges in Washington, D.C.!
–Bad because to correct the Court on a constitutional issue takes 3/4 of the states to ratify an amendment, which is nearly impossible.
–Bad because it causes other branches to ignore the constitution; shifts responsibility from the political system to the court.
–Does judicial review sap the political capital of justices/lower the court in our eyes to a political institution? If yes, lower utility.
–Are minority claims in a democratic process uniquely handicapped, or can minorities build alliances and gain steam? If former, higher utility.
5. Methods of Constitutional Interpretation
a. Non-interpretivists v. Interpretivists – should we even make an attempt to figure out what the document means?
b. Historical Original intent (dead) – what did the individual drafters of the constitution intend the document to mean? Must find the correct people and their original materials. But this is very difficult…
c. Historical Original Meaning – what would the document have meant to an enlightened/educated member of that generation? Use dictionaries, newspapers, other periodicals, general social trends and norms.
d. The Vectors of History – trying to determine how the meaning of certain parts of the constitution has changed throughout time and how they will change in the future. (fortune-telling?)
e. Structuralism – a certain result us implicit in the structures of gov’t and the relationships that the Constitution have created among citizens and the gov’t.
f. Precedent/stare decisis – look at past Sup.Ct. decisions to figure out what certain provisions have come to mean over time.
–Argument for – the legislature can always overrule the Court, so the Court need not overrule itself; consistency of laws is a good thing
–Argument against – it is so difficult for the legislature to change the constitution that it should feel free to overrule itself
g. Cultural arguments – anything else, whatever ideas happen to be prevailing popular opinion today (humanity, principles, views, cultural assumptions about fairness); not really a legal argument
h. The mix: judges use all of these tools; they often first arrive at the “bottom line,” what is the practical implication that I want; then choose legal arguments to craft the law that gets to the bottom line.
i. All it takes is FIVE, but just because you can get 5 justices, it doesn’t mean that the Court should reverse a prior decision or overrule Congress (restraint!)
6. Levels/Tiers of Review
a. Minimal scrutiny – presumption that statutes and other gov’t actions are valid; burden is on challenger to show that law-regulation or act is not rationally related to a legitimate gov’t action
b. Intermediate Scrutiny – burden is on gov’t to show that the purpose of the statute is important and that the statute is related to that purpose (but need not strictly prove its constitutional validity)
c. Strict scrutiny – some gov’t acts are presumptively invalid (i.e. a statute that classifies people by race); act appears on its face to be a Constitutional violation; burden is on gov’t to show that act is valid
d. Legitimacy of different levels: But what justifies the court in treating different gov’t actions or laws with different levels of review? Why should some issues receive deference and not others?
C. Limits on Judicial Review
1. Direct Political Controls
a. Amending the
nales: separation of powers; need for finality of opinion (can’t have the Court render a decision and then give the person a chance to break it); lack of zealous advocacy; possibility for an overbroad decision produced by absence of real-world application; keep court out of major political decisions; forces court to make a decision where it may not want to; tyranny on a national level; related to political question
–Declaratory judgment can be adjudicated if the issue has a factual context and the harm is imminent (Nashville RR v. Wallace: Court could review ca facial challenge to a state tax because the controversy was real, there were sharply adverse positions, the tax was imminent, and the court’s judgment was dispositive)
2. Standing: cases and controversies require the correct litigants; focuses on the litigant: constitutional core of standing
–Standing for an individual:
1) “injury in fact” – person must suffer an actual or threatened injury (as opposed to generalized grievance),
2) causal connection between gov’t action and injury,
3) seeking relief that the court can provide.
–Standing for an organization:
1) individual members would have standing to sue individually (three elements above),
2) claim is related to purpose for which organization was created,
3) there is nothing lacking by not having an individual plaintiff
–Court also likes to see unanimity among the organization’s members as to the claim asserted; is there really fervor among the constituents for this cause?
–Injury is not limited to economic injury; aesthetic, emotional and environmental injuries are sufficient to confer standing; personal injury may be to career, occupation, or area of damaged property (Lujan v. Defenders of Wildlife: environmental champions challenge an action that limits the reach of the Endangered Species Act to the boundaries of the U.S. Held: no injury and no redressability; hypo: if federal decision would threaten a particular species with which a person worked in an area of the world this would probably constitute an injury to career or emotional injury)
–Prudential standing doctrines (not constitutionally required—made up by the Court and defined by the Court over time):
–No third party claimants (restraint: desire to avoid premature decisions; respect: of the aggrieved party’s decision not to sue;