CONSTITUTIONAL LAW OUTLINE
Background/Details
Con Law is easy b/c the constitutional issue being presented is always the same:
Article 2 § 1: 4 year presidency
Hypo: statute enacted that says 8 years.
Are these laws in conflict?
à Yes, 4 and 8 years are not compatible.
** Textural conflict – a conflict in the text of the statute and test of the constitution
Key: looking at 2 things only for a textural conflict
à Only deals with ½ of 1% of all constitutional conflicts
The other 99.5% deal with interpretive conflicts
Hypo: Congress passes the following act because of crowding in the courts because of federal drug cases
Anyone charged with a drug crime that has plead not guilty can only have two witnesses in his defense and there are no appeals
à There is nothing in the Constitution that is in conflict with this, so it is an interpretive conflict
– Person is convicted and argues that the 5th Amendment does not allow it: Fed govt. cannot take away my liberty unless they give Due Process.
– The lawyer argues that the due process clause gives unlimited rights to appeal and to use as many witnesses as possible.
à 3 things needed for interpretive case
Statute
Constitution
THE DEFINITION OF THOSE VAGUE TERMS AS INTERPRETED IN CASE LAW BY THE SUPREME COURT – what we by in large will be studying.
Key: In every Constitutional law case someone is saying to court: “Provision such and such in law such and such is in conflict with such and such provision of the Constitution.”
à If they are in conflict one dies and one survives, what survives is always the Constitutional law because it is the Supreme law of the land.
Articles of Confederation – government or “mutual defense treaty” in response to concerns about defending the colonies after declaring their independence
– Was the government throughout the war
– States start to have problems with each other and everything is falling apart\
– James Madison asks George Washington to send letters to all of the colonies to have the Articles of Confederation amended.
– They all agree on a new document – Madison proposes a government that had never been implemented – the top of the government is a piece of paper that is the highest law in the land and anyone who writes any laws thereafter must conform
– After 60 days of putting the government together there was a problem:
Do slaves count towards the 30,000 to 1 ratio of population in a state to House reps for that state
Article 1 § 2 says that every African American counts as 3/5 of a person
They also put in Fugitive slave provision so the northern states would not stop southern states from recovering run away slaves.
Also wanted guarantee that the institution of slavery is untouchable for 50 years, but the northern states would not agree.
à There was compromise and they agreed to 20 years of slavery being perpetuated
– Art 1 § 9
3 ways to get something out of Constitution once it is there:
Revolution
Continental Congress – throw it out and start over
Article 5 prescribes a method to amend the constitution
3 things needed:
2/3 of Senate to approve
2/3 of House
Then sent to state legislatures and 75% must agree
CHAPTER 1: THE FEDERAL JUDICIAL POWER
A. The Authority for Judicial Review
Marbury v. Madison
Bill written to create 59 new federal judicial slots – Adams wanted it passed because all of the federalists were going to be out of work
– One of the writers suggested that the next president would fight the act and that it would only be able to be challenged in a court where there are all federalists – at the Supreme Court of the United States
o Supreme Court acted as trial court and had original jurisdiction over the Judiciary Act challenges
Adams puts his secretary of state in charge of appointing the judges
– Secretary of state chooses himself as Chief Justice of Supreme Court
– Secretary of state as Chief Justice swears in Jefferson
Jefferson asks Madison to be his secretary of state – Madison goes to secretary of state office and finds a pile of papers that need to be sent to employ the judges chosen by the former secretary of state. Madison files the papers away
– Marbury comes to secretary of state and Madison will not give Marbury his certificate to become a judge
– Marbury files suit against in the Supreme Court to get Madison to get a court order that requires Madison to deliver
Why deal with Marbury v. Madison?
àIt is the basic tool for all Constitutional Law
What does Chief Justice Marshall do?
Looks at the Constitutional law that deals with judicial branch (article 3) – which says that the Supreme Court of the United States has 2 kinds of jurisdiction
Article 3 § 2 – provides for:
Original jurisdiction (case begins and ends at that level) in cases involving:
Ambassadors
Public Ministers
State as party
*** Marbury v. Madison does not fall under any of these
Judiciary Act of 1801 – anyone who claims injury by the judiciary act may only bring claim in the Supreme Court
– This is not included in the Constitution but it is an act of Congress – Marshall says that the effect it has is that Congress tried to amend the Constitution to create a 4th instance of OJ, without amending the Constitution. In order to change the Constitution you use article 5 to amend the Constitution
– Marshall says that it is an illegal attempt to amend the Constitution through the use of statutory law – “it is repugnant to the Constitution”
à Marshall says that when something is repugnant to the Constitution it will be erased
à Therefore he erases the Original Jurisdiction provision for the Judiciary Act
à Marshall said that when the members of the judiciary conclude that a statute is in conflict with the Constitution, the members have the power to eradicate that statute – to declare it null and void
*** They even create a new word for the null and void statutes = Unconstitutional
Where does the Supreme Court get this authority?
– There is no language to that effect in Article 3
– Marshall almost impeached for this decision
Marshall writes a law review article: writes that he did not do anything bad. It was a law called the Judiciary Act that dealt with the judicial branch
Marshall’s true belief: Supremacy Clause (Article 6) says the Constitution is the Supreme Law of the Land and that someone has to enforce it, or otherwise it is a useless phrase – he thinks that the judicial is the best equipped to be the policing agent
This is important because?
1st time in history an act of Congress was found to be null and void –
à This process is called judicial review – the power is reserved by the judicial branch to declare laws in conflict with the Constitution to be null and void
BE ABLE TO ANSWER THIS FOR EVERY CASE: What Act is found to be in conflict with what portion of the Constitution?
The portion of the Judiciary Act that allowed for the Supreme Court to have OJ is in conflict with Article 3 where there are only 3 situations where the Supreme Court has OJ.
THE AUTHORITY FOR JUDICIAL REVIEW OF STATE JUDGMENTS
à The two cases established judicial review of state court decisions:
MARTIN v. HUNTER’S LESSEE (pg. 9)
Treaty between England and U.S. that guaranteed English right to property came in conflict with owner of property
Rule: Supreme Court can review state court decisions
Justice Story argued that the structure of the Constitution presumes that the Supreme Court may review state court decisions – the Constitution creates a Supreme Court and gives Congress discretion whether to create lower federal courts. But if Congress chose not to establish such tribunals, then the Supreme Court would be powerless to hear cases, except for the few with original jurisdiction, unless it could review state court rulings.
Also, the Constitution is based on recognition that state attachments, state prejudices, state jealousies, and state interest might sometimes obstruct or control the regular administration of justice. Story also said that the Supreme Court review is essential to ensure uniformity in the interpretation of federal law.
COHENS v. VIRGINIA (pg. 10)
Brothers convicted of selling D.C. lottery tickets in violation of VA law. Defendants sought review in U.S. Supreme Court b/c they claimed Constitution prevented their prosecution for selling tickets authorized by Congress.
Affirmed the Constitutionality of § 25 of the Judiciary Act and authority of Supreme Court to review state court judgments. Reasoned that state courts often could not be trusted to adequately protect federal rights because in many states the judges are dependent for office and for salary on the will of the legislature.
DRED SCOTT v. SANFORD (pg. 649)
Scott, a slave, was taken from Missouri into Illinois, which was a free state. After Scott’s owner died, Scott sued the administrator of the estate in Federal Court and claimed that his residence in Illinois made him a free person.
Issue: Whether the act of Congress that prohibited a citizen from holding and owning slaves in the territory of the United States north of the 36 degree north latitude was unconstitutional.
53 years passes between Marbury and Dred Scott, why?
– Big trouble last time they tried judicial review (Marshall never again while on the bench dealt with unconstitutionality)
Marshall did not just pluck judicial review out of the air (even thought it seems that way):
– During the ratification debates for the Constitution the question came up: what if Congress passes a law not in conformity with the Constitution?
– The question was answered that they would deal with it came up
– According the federalist papers recorded during the ratification they said that the judiciary was responsible for the problem when it came up
Doctor Emerson was a veterinarian in the Army – he has been stationed in the “Missouri Territory”
– Emerson moves from lower part to upper part with his slave (stays for 5 years)
– Then Emerson moves back to slave state
– Scott’s position is when they moved to free state and he stepped onto free soil he was a free man – it was impossible for him to be a slave in a state that slavery did not exist
Roger Tawny (justice) concludes that Scott is not a person as defined by the Constitution – slaves are property
à There are three separate provisions in the Constitution where the founding fathers wrote about slaves
– Since Scott is not a person, he cannot sue so the case is dismissed
*** If this is what would have happened then it would not have been a constitutionally significant case
TAWNY WAS STUPID – so he continued to write in his opinion
Dicta – when judge issues a ruling and writes about something that has nothing to do with the holding in the case
The Constitutional Conflict
Tawny says that ________ provision of _____________ statute is in conflict with ________ provision of the Constitution.
He asks how did the north of Missouri become free and south become slave?
– Law passed to govern the huge territory
– Marshall asked where Congress got the right to take a large piece of land and make a Constitutional guaranteed institution of slavery not present in the northern part of Missouri Territory
– Slavery was written about in Fugitive Slave Act, the 3/5 rule, and other places in the Constitution, so how could Congress create an area devoid of the right?
– He says that since the north of Missouri was not really free, Scott was not really in a free territory.
– 1856 – Congress cannot legislatively create a territory of the United States that does not have within it the guarantee of slavery because the Constitution requires the presence of slavery in every part of the United States.
o KICKER: In Illinois a lawyer reads Dred Scott, he was in Congress in the past, now he represents the railroads and makes good money. He says if Congress doesn’t have the power and the authority to create an area in the country free from slavery, it seems that there will be a case in the Supreme Court where someone will claim that the Illinois legislature, or a free state legislature similarly does not have the authority to create an area of land free of slavery. If it is declared unconstitutional for the federal legislature, it will be declared so for the state legislatures. Every state is going to be a slave state because Robert Tawny said it is undeniable institution of the U.S. Lawyer says it is there forever so he returns to politics – Abraham Lincoln is back in politics.
Lincoln’s stance on Dred Scott: Everything is dicta after the first page of the ruling.
– Tawny and Lincoln become bitter enemies
– Civil War starts just after Lincoln inaugurated.
Dred Scott is one of the three decisions of the United States Supreme Court that have been overturned by Constitutional Amendment.
à 14th Amendment overturns Tawny’s decision as to persons
* Income tax is the other – Congress passed tax law and it had no authority, so Congress had to pass Amendment in order to do so
5th Amendment is at issue also in Dred: 5th Amendment requires government to give you just compensation when taking your property.
– The argument is Scott was that if you rule in favor of Scott, you are letting government take property w/o just compensation
***** BE ABLE TO APPLY THE FORMULA OF JUDICIAL REVIEW TO EVERY CASE WE DO IN CON LAW
Lead-in for Topic 2: Congressional Limitations on Judicial Power; The Art. III Exceptions Clause.
What can we do to reduce the shameful power grab that occurred in Marbury v. Madison and Dred Scott that has rendered us second-class citizens?
à Look at article 3 again
– Art 3 provides that we will have a Supreme Court, that Congress has power in Constitution to create other courts
What cases can these courts hear?
– Let Congress create all federal courts below the Supreme Court and let Congress decide what kind of cases they can hear
– Supreme Court has original and appellate jurisdiction
INS v. Chadha
The Attorney General was then to send his recommendation for suspension of the deportation to Congress to either be passed or vetoed. The House of Representatives passed a resolution opposing the granting of permanent residence to the petitioning immigrant and 5 others. The resolution was not presented to the Senate or President.
Rule: § 244(c)(2) is essentially legisla
is not an exercise of the acknowledged power of Congress to make exceptions and prescribe regulations to the appellate power. Congress has passed the limit which separates the legislative from the judicial power.
Justiciability Limits
Article 3 §2 authorizes federal courts to hear several types of cases and controversies
Justiciability Doctrinesà Supreme Court has interpreted these words as giving rise to a series of limits on the federal judicial power
– They are judicially created limits on matters that can be heard in federal courts.
– Supreme Court has found that some of them are constitutional, so they cannot be overridden by statute.
– Court has also found that some are “prudential,” meaning they are based on prudent judicial administration and can be overridden by Congress since they are not constitutional requirements.
à All of the justiciability doctrines raise basic policy questions about the proper role of the federal judiciary in a democratic society – the words define the role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will intrude into areas committed to the other branches of government.
– They are also intended to improve judicial decisions making by providing the federal courts with concrete controversies best suited for judicial resolution.
– This also conserves judicial resources
5 Major Justiciability Doctrines: The prohibition against advisory opinions, standing, ripeness, mootness, and the political question doctrine.
à Supreme Court has said that it would follow certain principles of avoidance to ensure that it will reach constitutional questions only when necessary.
Ashwander v. Tennessee Valley Authority – Justice Brandies articulated the avoidance principles
à Propriety and long-established practice demand that we refrain from passing upon the constitutionality of an act of Congress unless obliged to do so in the proper performance of our judicial function, when the question is raised by a party whose interests entitle him to raise it.
Court created series of rules under which it has avoided passing upon a large part of constitutional questions:
Legislation in a friendly, non-adversary proceeding because deciding such questions is legitimate only in the last resort.
Court will not anticipate a question of constitutional law in advance of the necessity of deciding it.
Court will not formulate a rule of constitutional law broader than is required by the precise facts to which it is applied.
Court will not pass upon a constitutional question although property presented by the record, if there is also some other ground upon which the case may be disposed of.
Court will not pass upon validity of a statute upon complaint of one who fails to show that he is injured by its operation.
Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself to the benefits
When validity of act of Congress is raised, Court will first ascertain whether a construction of the statute is fairly possible by which question may be avoided.
Prohibition of Advisory Opinions
Article III requires that the federal courts cannot issue advisory opinions.
Characteristics that must be present in lawsuit to avoid being advisory opinion:
First, must be an actual dispute between adverse litigants.
– This means that the Supreme Court cannot issue advice to anyone who asks, such as President
Second, there must be a substantial likelihood that a federal court decision in favor of a claimant will bring about some change or have some effect.
Plaut v. Spendthrift Farm
Court ruled that actions brought under securities law had to be brought within one year of discovering the facts giving rise to the violation and three years of the violation. Congress then amended the law to allow cases that were filed before the decision to go forward if they could have been brought under the prior law. The effect reopened actions that had been dismissed under the Court’s prior ruling.
à Federal Judiciary has the power, not merely to rule on cases, but to decide them, subject to review only by superior courts in Article III hierarchy, with an understanding that a judgment conclusively resolves the case because a judicial power is one to render dispositive judgments. By retroactively commanding the federal courts to reopen final judgments, Congress has violated this fundamental principle.
à Clear violation of the separation of powers because it is retroactive legislation. Therefore the amendment of the court’s ruling is unconstitutional
Standing
The second major justiciability requirement – was deemed the most important by the Supreme Court
Standing à the determination of whether a specific person is the proper party to bring a matter to the court for adjudication
Constitutional requirements for standing:
(1) Plaintiff must allege that he or she has suffered or imminently will suffer an injury
(2) Plaintiff must allege that the injury is fairly traceable to the defendant’s conduct
(3) Plaintiff must allege that a favorable federal court decision is likely to redress the injury
Prudential principles for standing:
(4) A party generally may assert only his or her own rights and cannot raise the claims of third parties not before the court
(5) Plaintiff may not sue as a taxpayer who shares a grievance in common with all other taxpayers.
Class Notes
Standing – speaks only of the plaintiff and it must be the real party in interest (actual party injured)
Exceptions:
a. State statute that says that 3rd party can sue on behalf of another (survival statutes)
b. Can sue on behalf of insurance Co. when the insurance Co. is the real party in interest
i. Constitutional Standing Requirements
