Constitutional Law Outline- Spring 2012 (DeGirolami)
FEDERALISM: THE FOUNDATION OF THE US CONSTITUTION AND PRINCIPLES
I. Themes in Constitutional Law
a. Theme 1: The Conflict of the Government Powers and Individual Rights
i. Inter-branch Conflict against the Rights of the Individual
ii. The Conflict of Federalism (Powers of the Fed Gov’t, Powers of the State Gov’t, and Individual Rights)
b. Theme 2: Who Decides?!
i. The issue is not what the correct outcome is, but who should be tasked with making it
1. Congress- Art 1
2. President- Art 2
3. Judiciary- Art 3
4. States- look to the principles of Federalism (10th Amendment; Article VI, Supremacy Clause)
5. Individuals- BOR
c. Theme 3: How do we Decide?
i. Theories of Constitutional Interpretation
1. Textualism: read the text as plain language, as what is written is what the Founders want you to read OR as to what the contemporary meaning of the word.
2. Intentionalism: What was the INTENT of the Framers/Legislators as they wrote this section? To interpret, look to the leg record from congress,
a. Tell reader what was meaning when a piece was written
b. Marshall says that the BOR was written to enhance state power, not to restrain***
c. Group intent: would need to look to floor debates, statements from proponents… but these fragments are tough to determine if it is reflective of the “intent
3. Originalism: umbrella term for a # of theories: the key to discerning meaning is examining evidence from the constitutional convention, ratification debates, Federalist Papers and historical practice
a. There is a DISTINCTION between original Intent and original meaning. Original Meaning is preferred today.
b. The Scalia view: First, there is a text. It will mean certain things to different people. Scalia says we want the meaning that the ordinary person would have taken away when they read the text. Does not care about some secret meaning that the framers may have had (not original intent). If you want evolution, go to Congress. NOT judges.
c. Reason to have a Con: is NOT to evolve. It is to keep things the same. Constitutions are meant to be obstructive to change; Prevents things from being done by distributing power.
4. Living Constitutionalism: again, a family of theories-
a. Main difference with originalism: history gets no lexical priority
b. Another difference: views on legal evolution
c. Varieties of living constitutionalism
i. Political Philosophy (natural law)
ii. Cost-benefit analysis or economic calculus
iii. Tradition/precedent/common law/ methodology
iv. Pragmatism
d. The Souter View
i. “fair reading” interpretive method (meaning textualism): some issues are fine for using textualism (aka, age of senator).
ii. HOWEVER: Cases that make it to SCOTUS are the ones that cannot be answered in one reading.
iii. There are MANY conflicting, in tension values in the Con. (freedom + security, separation of religion + religious benefits); and this creates a far harder environment than one in which a court can use just the plain text.
iv. The key to any case are the FACTS: can color a situation in different ways… judges are supposed to decide how different facts shape different kinds of outcomes.
5. Structuralism: Focus on the overall arrangement of the document; what does the flow and structure of the words tell you about what the big picture message is. This often goes hand in hand with
6. Traditionalism/Burkeanism:
7. Progressivism:
8. Pragmatism:
9. Practice: Past leg/jud have answered a legal Q is a particular way might
10. Give a present interpreter confidence that his present interpretation is correct
a. Give reliance that the interpretation may be respected
b. Criticism: we have a written constitution, and it is a US custom to sometimes dump tradition
11. Purpose:
a. Values, principles, themes… where we can say, “this is WHY we protect this. Any time this appears again, we will protect it again”
b. Flexible, and can accommodate different circumstances
c. Problem: sometimes there isn’t just one, or even multiple purposes. (Speech- for political, artistic expression, hate speech?)
d. Original intent is different: what the drafters meant… they go back into historical materials w/r/t what was on people’s minds. Purposivists try to find in a more philosophical approach to “why” we want to protect something
12. Policy: look for a social policy for a reason, or mode of interpretation when the text is overly ambiguous when it comes to a solid, concrete reasoning.
13. Judicial restraint: when Congress has made a move, the judiciary should not overturn unless there is a large reason to believe it is not constitutional.
a. judges should overturn a Leg act ONLY when there is no reasonable doubt that it is constitutional.
b. If both Con and the Pres agree its constitutional, unless the court finds it absolutely ridiculous, then they will not strike down (think- beyond a reasonable doubt!)
c. As to Congress, courts ought to be deferential
ii. Interpretational Problems
1. What happens when the Constitution does not explicitly refer to some particular issue or controversy?
2. The Constitution’s Open-endedness. Multiple interpretations of “speech,” “commerce,” “due process of the law,” and “necessary and proper”
3. How absolute are prohibitions? At what point does a gov’t interest override an individual right?
II. Constitutional Highlights
a. Preamble: popular sovereignty
b. Vesting Clauses: A1, s1; A 2, s1; A3, s1
c. Bicameralism and Presentment: A1, s8
d. Powers of Congress: A1, s8
e. Limitations on Congressional Power: A1, ss. 9-10
f. Executive Powers: A2, ss. 2-3
g. Judiciary: All (life tenure, original jurx, appellate jurisdiction
h. Federal/State Provisions: AIV, ss. 1-2
i. Amendment Process: AV
j. Supremacy Clause: AVI, cl. 2
k. BOR and Reconstruction Amendments
i. The first 10 amendments to the Constitution adopted in 1791
ii. By their terms, they apply ONLY to the federal gov’t (Barron v. Baltimore)
iii. Large debate between the federalists (didn’t want them included b/c thought rights were inherent) and the A-F’s (thought they needed to be enumerated so they would not be usurped by the gov’t)
iv. 17 amendments were originally passed through the House, 12 made it through the Senate, and 10 (the BOR) were passed by the States
l. Progressive Era Amendments
m. The 22d Amendment
III. The Adoption of the US Constitution
a. Oldest Con in the world (most others not entrenched until after WW2)
i. Entrenched: unchangeable by ordinary law; interpretation of the meaning doesn’t lie with Congress (here, it lies with the Courts)
ii. Provides for intergenerational law makers (on those biggie probs); ensures certainty for long periods of time; reduce risk of anyone (public) undertaking
iii. Resistant to tyranny, protect rights and freedoms from passions of the moment
iv. Is a gag rule: some topics are incendiary (provoke fights), and it takes subjects off the table
v. Fixes the divisions of power (horizontally and vertically)
b. Americans began as Englishman (from Jamestown in 1606 until the DOI in 1776)
i. Glorious Revolution (1688)- English overthrew James 2, with William of Orange, changing from an absolute monarchy, to a constitutional monarchy (power from monarchs to Parliament)
ii. Intellectual heritage from the GR!
1. Gov’t rests on the consent of the gov’t (when gov’t lacks the consent, it must be overthrown)
2. No taxation w/o representation (taxed only by leg they helped to elect)
3. No imprisonment without a jury trial with the jury of ones peers (7th Amdt
4. No power of the king to dispense with, or change duly elected law (he is subject to them as well)
5. Life tenure during good behavior for all judges
6. Checks and Balances
IV. Nature of the Constitution
a. Con is republican in form: people hold the ultimate power; people elect all representatives
i. Fed 39 (Madison): people are important, but express rule through the states (giving a federal hint)
ii. Why not wholly national? Madison says we want to control the mob, don’t give the people and their nastiness everything
b. Federalist 40: that there are some doubts that Congress authorized the delegates to devise a plan that totally overhauled, rather than simply amended, the Articles. So he appeals to the Declaration of Independence: “it is the precious right of the people to 'abolish or alter their governments as to them shall seem most likely to affect their safety and happiness.'”
c. Federalist 39: federal, not national; in the sources from which the ordinary powers of government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national.”
V. Bill of Rights Addition
a. The BOR was originally not included at all in the Constitution
b. However, A-F’s were concerned about how liberty they Federalists were planning on keeping/not allowing for the population of the world
c. Barron v. Baltimore: BOR applied only to federal government
i. Most were incorporated against the state through the 14th Amendment, or other subsequent cases
VI. Constitutional Controversies
a. The Bank of the US
i. Federally charted corporation set up in 1791
COTUS Jurisdiction:
1. Original Jurisdiction: (Art 3, S2) cases affecting ambassadors, other public ministers, and those where a state is a party. This provision is self-executing: Congress may neither enlarge nor restrict the SCOTUS original jurisdiction, but Congress may give concurrent jurisdiction to lower federal courts and has done so regarding all cases except those between the states/
2. Appellate jurisdiction: over all other subjects above listed, subject to congressional exceptions
a. 2 methods for invoking SCOTUs appellate jurisdiction:
i. Appeal (jurisdiction is mandatory): Comes from only 3 federal judge district court panels.
ii. Certiorari (at the court’s discretion): the case will be heard if 4 justices agree to it. Can come from the highest state court, or any federal court of appeals.
b. Limits on Statutory Regulation: Ex Parte McCardle has been read to give Congress full power to regulate and limit the Supreme Court’s appellate jurisdiction. However, possible limitations on such congressional power have been suggested.
i. Congress may not eliminate certain avenues for Supreme Court review as long as it does not eliminate all avenues.
ii. Although Congress may eliminate SCOTUS review of certain cases within the federal judicial power, it must permit jurisdiction to remain in some lower federal court.
iii. If Congress were to deny all SCOTUS review of an alleged violation of constitutional rights- or go even further and deny a hearing before any federal judge on such a claim – this would violate due process of the law.
vi. Criminal trials shall be by jury (except impeachment) and in the state of the offense
vii. Provisions for trial and conviction for treason
b. Judicial Review?
i. The power not only to interpret the Constitution but also to strike down those legislative or executive acts which the Court deems to violate the Constitution.
ii. Judicial Review is not ANYWHERE in Article III.
1. Marbury v. Madison: Prior to TJ taking office, JA appointed many new judges and “justices of the peace.” Marbury was one of the justices. TJ refused to allow him to take his appointment. He files suit with the SCOTUS seeking a writ of mandamus to compel SoS to deliver his commission, as Madison has no right to withhold. Marbury: Jud Act of 1789, authorizes the SCOTUS to issue of mandamus. Court held that it lacks the power to issue a writ of mandamus as part of its original jurisdiction.
a. IN SO HOLDING, Court establishes the power to review an executive or legislative act, and to disregard either if it believes them to violate the Constitution
b. Established federal judicial review as to federal executive and legislative acts
i. (Later cases established federal judicial review as to:
ii. State court decisions (Martin v. Hunter’s Lessee (1816)); and
iii. State laws and state executive acts (Cooper v. Aaron (1958))
c. Marshall construes the original jurisdiction of the court tightly à
i. Why is it unreasonable to make an exception to the appellate jurx by increasing original jurx? The text is supporting a construction that the courts original jurx can’t be reduced by congress. But that bare minimum can be expanded by congress by adding original jurx in some kinds of cases, which would otherwise fall within the court’s appellate jurx. Marshall is asserting the court’s dominance in one field, while dismissing Marbury’s claim.
