Constitutional Law – Professor Williams – Spring 2011
I. Introduction
a. The Constitution
i. Creates a federal system with wide-ranging, enumerated powers
ii. Why a Constitution?
1. It is an agreement among the people –“contract”
2. Without a governing document that empowers the national government (Art. I. § 8) and can preempt (block) state laws (Art. VI) the country would be unable to proceed as one unit.
b. Basic Features:
i. Written: oldest continually operative written constitution
ii. Supreme (Supremacy Clause; Article VI)
iii. Limits Federal Powers: (Article I §8 and Doctrine of Enumerated Powers)
iv. SC Applies and Interprets Constitution (Marbury v. Madison; Martin v. Hunter’s Lessee)
v. Checks and Balances (Doctrine of Separation of Powers)
vi. Rights of States: All powers not granted to the United States nor prohibited by the States, are reserved for the States and the people respectively. (10th Amendment)
vii. Restrictions: affirmatively restricts what the state and federal governments may do (Article I §9, 10; Bill of Rights)
II. Judicial Review
a. Marbury v. Madison: Creates the authority of Judicial Review of Legislative and Executive action. It is the duty of the Judicial Department to say what the law is.
i. Facts: Marbury sought writ of mandamus to compel Secretary of State (Madison) to deliver his commission.
ii. Holding: (a) Marbury has a right to the commission, (b) the laws afford him a remedy, but (c) § 13 of the Judiciary Act is unconstitutional because it purports to alter Court’s original jurisdiction, and Art. II states that such writs can only be heard on appeal.
iii. Rule: “It is emphatically the province and duty of the judicial department to say what the law is.”
1. Judicial Review: The power of the Supreme Court to refuse to give legal effect to legislation that is inconsistent to the constitution.
iv. Rational:
1. “Fundamental” Principles: without Judicial Review, commitment to Limited Government would be undermined.
2. Text:
a. How can one decided cases “Arising Under” the Constitution (Art. III) if they cannot use the Constitution as a Framework?
b. Other clauses, Art. III, § 3: Treason – need judicial review if congress passes legislation ignoring or eliminating an essential element of a crime of treason.
b. Martin v. Hunter’s Lessee: The Supreme Court also has the right to review the constitutionality of State Court judgments and the acts of state officials.
i. Facts: Virgin Court Of Appeals challenged S.C. ability to hear state court cases on Appeal.
ii. Rule: Art. III authorizes appellate review of state court decisions by Supreme Court.
iii. Rational:
1. Text: Use of “all” and “shall” in Art. III requires that he whole of the judicial power be vested in some federal court at any time.
a. IF judicial power does not extend over state courts, then it does not extend to all cases. This is undercut by restrictions on diversity.
b. Art. VI, § 3 – Judges Oath: “The judges in every state shall be bound thereby [to the Constitution].”
2. Other Arguments:
a. Constitution limits states sovereignty in other areas:
i. Art. I, § 10 prohibits (imposts, treaties, etc.)
1. If Appellate Jurisdiction over state courts is denied great “mischief” would occur.
a. Fed Law would lack uniformity
b. State Courts could be bias in favor of local interests.
c. Cohens v. Virginia: S.C. has jurisdiction over state criminal matters and other matters in which a State is a party.
III. Constitutional Interpretation
a. Counter-majoritarian Difficulties: Concern that judicial review limits democratic choices because of wide discretion in interpretation and construction used by unelected justifies.
b. Interpretation vs. Construction
i. Interpretation: Determining the meaning of the content.
ii. Construction: Translating meaning of content into a legal rule.
c. Non-Origonalism:
i. “Living” Constitution Theory: Takes a life of its own and grows with changing social context. This allows for evolution in the meaning of the Constitution when it faces changing times without the cumbersome amendment process.
d. Originalism:
i. “Original Intent”: What the writers of the Constitution and its Amendments meant when they wrote it. (essentially not in existence) – Bork
ii. “Original Public Meaning” : How Constitution was understood at the time of its creation by the average man “on the street”. Scalia
1. D.C. v. Heller: Scalia looks to historical sources to discover the meaning of the 2nd Amendment words and interoperate the clauses of the amendment.
a. Holding: D.C. statute restricting the use of handguns is held unconstitutional under the 2nd Amendment
e. Intellectual Origins of the Constitution
i. Madisonian: Republicanism (Federalist Idea)
1. Elected indivudials as representatives
2. Large republic
3. Governing institutional system of “checks and balances” (Federalist No. 51)
ii. Anti-Federalists
1. Everyone participates, no elected individuals
2. Feared a powerful, centralized government
3. Feared emphasis on commercial development would increase ambition and greed.
iii. McCulloch v. Maryland
1. Facts: Maryland calls into question constitutionality of Band of the U.S.
2. Rule: Congress may use its implied powers in order efficiently carry out its enumerated powers.
3. Rational:
a. Text:
i. Necessary and Proper Clause (Art. I, §8, cl 18): “Congress can take all acts that are necessary and proper in its authority. This interprets “necessary” to mean a wide range of possibility in comparison with “absolutely necessary” in Art. 1 §10, cl. 2
ii. A narrow interpretation would be inconsistent with the founders intentions of a constitution that would grow and succeed with the nation – example of living constitution
iii. Structuralism IF a state could tax federal institutions they could destroy them.
1. State lacks power to impose “obstacles” on federal activity pursued “within its own sphere”; that is the idea of Supremacy.
iv. Necessary and Proper Rule Test:
1. Is the object of the legislation consistent with the powers conferred?
2. Is the legislation conducive to a constitutional objective
3. Is the legislation of the type found in textual limitations on Congressional Power (Art. I, §9; Bill of Rights)
a. Note: Court does not look at the “degree” of necessity. But if congress is legislating unconstitutionality, it will invalidate it.
f. Natural Law: Calder v. Bull: Justice Chase argued that legislative actions not expressly restrained by the constitution may nevertheless be invalid because they violate “general principles of law and reason” – public policy?
IV. Political Control of the Courts
a. Congressional Power of Jurisdiction: Judicial Stripping
i. Art. I § 8, Cl. 9 – Constitute Tribunals
ii. Art. III, §1- “Inferior” Courts which congress may ordain from time to time.
iii. Art. III, §2 – Exceptions Clause (appellate Jurisdiction of S.C.)
b. Against Congressional Power of Jurisdiction:
i. Structural: S.C. was intended to play an important role, an essential function in the separation of powers scheme to ensure that Congress, the President (executive, and the States are within constitutional limits. Marbury, Martin v. Hunter’s Lessee.
ii. Bar federal courts from hearing issues which would result in lack of uniformity of important laws (because state courts would be the only courts able to hear these)
c. Ex Parte McCardle
i. Facts: Congress repealed Habeas Corpus act that Plaintiff invoked to appeal district court ruling.
No Generalized grievances is allowed: Is a term of art, to understand, the plaintiff must not be suing as solely as Citizen or tax payer saying that the Government should follow the law.
a. If you get a question where they are suing as a tax payer, no standing.
iv. Allen v. Wight:
1. Facts: Parents alleged IRS was not enforcing prohibition on granting tax exempt status to private schools that precluded blacks.
a. Injuries: 1) IRS breaking the law (to general) 2) the stigmatization of black people (parents not personally denied equal treatment –too abstract) and 3) subsidies diminished students ability to attended integrated schools (injury in fact).
2. Holding: the diminished ability to attend racially integrated schools was not fairly traceable to the IRS and so the court’s ruling would not redress any harm.
3. Rational: Separation of Powers, court is not continuing monitor of Executive (IRS). Cannot hear suits simply challenging agency programs.
a. If you are suing as a taxpayer, no standing.
v. Simon v. EKWRO: Impoverished citizen’s injuries were not fairly traceable to IRS’s inability to police the granting of tax-exempt status to hospitals that had relaxed care policies because of third party hospitals. It was not redressable because hospitals could still prohibit access to such care without tax rebate.
e. Injury and Redress-ability:
i. Lujan v. Defenders of Wildlife
1. Facts: Plaintiff organization argues that changing interpretation of ESA to not include protection of endangered species overseas injured them.
a. Associational Standing Rule: Associations have Art II standing if (a) one or more member would have standing to bring the claim advanced by the organization, (b) the claim is “germane” (significant) to the association’s purpose, and (c) neither the claim asserted nor the relief sought by the association requires the participation of individual members.
2. Injury: (extended to imminent threats. But how likely must future injury be before it is “conjectural” (hypothetical) ?
a. Defenders of Wildlife’s members contend that they will be “injured” by virtue of their plan to retuned to the previously visited affected lands were not “concrete plans” “Someday” intentions do not constitute and imminent threat.
3. Traceability: USAID (which funded the overseas projects of endangering habitats) is not a party to the case, the Secretary of the Interior (Lujan) is.
4. Redress-ability (not majority)
a. Scalia: Even if USAID is funding for the project stopped, their percent of funding is too small to affect change.
b. When a claim arises from governments unlawful or lack of regulation, causation hinges on response of third parties.
ii. Sierra Club v. Mortion: Sierra club lacked standing on injury in fact grounds because it did not allege that it or its members actually used the site in question.
iii. L.A. v. Lyons: stopped by police for a burned out tail light, cop choked him for it, 16 people had died from the use of the choke hold. He sued for injunction for cops to stop using, unless in danger of life. Lions could not show that it is likely that he will be harmed in the same way in the future.
iv. Congress cannot convert an “undifferentiated public interest into an individual right.” Separation of powers (structural claim): This would “transfer from the President to the courts the Chief Executive’s most important constitutional duty, to “take care of the Laws be faithfully executed.”
