Constitutional Law Outline (2002)
I. The Judicial Function. 3
A. Judicial Review.. 3
B. Supreme Court Review of State Court Decisions3
C. Adequate and Independent State Grounds4
D. Congressional Control of Federal Court Jurisdiction. 4
II. Justiciability. 5
A. Introduction. 5
B. Case-or-controversy. 5
C. Standing. 5
D. Mootness7
E. Ripeness7
F. Political Question. 7
G. Lack of Judicially Manageable Standards Strand.8
H. Prudential Considerations8
III. The Powers of the National Government8
A. Introduction: Sources of Congressional Power8
B. The Necessary and Proper Clause:8
IV. The Commerce Clause. 9
A. Art. I, § 8, cl. 3. 9
B. Brief History of C.C. Jurisprudence:10
C. Evolution of Commerce Clause Doctrine – C.C. Toolbox (3 different tests)10
D. The “Switch in Time That Saved Nine:” The Court’s Decision in NLRB. 11
E. The Modern Law of the Commerce Clause. 11
F. Commerce Clause and Civil Rights12
G. Recent Move Toward Closer Judicial Scrutiny. 12
V. External Limits on Power of Federal: 10th and 11th Amendments. 13
A. Introduction: State Immunities and Limits on Congressional Power13
B. The Tenth Amendment Timeline (20th Century)13
C. The Eleventh Amendment15
VI. The Power to Tax and Spend. 16
A. Introduction: Questions to Consider16
B. The Power to Tax. 16
C. The Power to Spend. 17
VII. The Power Over Foreign Affairs. 18
A. Introduction: Judicial Deference to Foreign Affairs18
B. Foreign Affairs Power of Congress:18
C. The Treaty Power:18
D. Executive Agreements19
E. The War Powers20
VIII. The Supremacy Clause. 20
A. Article VI, Clause 2. 20
B. The Preemption Doctrine. 20
C. Federal Immunity from State Regulation. 21
D. Federal Immunity from State Taxation. 21
IX. The Dormant Commerce Clause. 21
A. Introduction: What is the Dormant Commerce Clause?. 21
B. Rational Relationship to a Legitimate State Purpose. 21
C. Market Configurations22
D. Market Participant Exception. 22
X. The Privileges and Immunities Clause. 22
XI. The Separation of Powers. 23
A. Introduction: Source of SOP. 23
B. Presidential Exercise of Lawmaking Power23
C. Congressional Encroachments on Executive Authority. 24
D. Power to Appoint24
E. Power to Remove. 24
F. The Nondelegation Doctrine:25
G. Foreign Affairs25
H. Legislative and Executive Immunities to Judicial Process:27
XII. Individual Rights and Incorporation. 27
A. Early protections of individual rights:27
B. The Bill of Rights27
C. 14th Amendment Text27
D. Early Judicial Trends in Construing the 14th Amendment28
E. The Incorporation Doctrine. 28
F. Incorporation since Duncan:29
XIII. Introduction to Substantive Due Process. 30
A. Introduction. 30
B. Procedural versus Substantive Due Process30
C. Standards of Review.. 30
D. The Rise and Fall of Economic Due Process30
E. The Decision in Lochner v. New York. 30
F. Property and Economic Liberty Today. 31
XIV. Revival of Substantive Due Process for Non-Economic Liberties. 32
A. Origin of DPC Non-Economic Liberties32
B. Carolene Products’ Footnote Four32
C. Griswold and the Reemergence of Unenumerated Liberties32
D. The Right to Privacy: Abortion. 33
E. Sexual Intimacy: Bowers v. Hardwick. 34
F. The Right to Refuse Medical Treatment: A Right to Die?. 34
G. Suicide and Physician-Assisted Suicide. 35
XV. Equal Protection. 35
A. Introduction and Overview.. 35
B. Suspect Classifications35
C. Racial Segregation of Public Schools36
D. Affirmative Action. 36
E. Gender Discrimination. 37
F. Fundamental Rights37
XVI. State Action Doctrine. 38
A. Introduction. 38
B. Private Performance of a Public Function. 38
C. Judicial Enforcement of Private Agreements39
D. Joint Activity Between a State and Private Party: The Nexus Approach. 39
E. State Endorsement of Private Conduct39
F. Lugar Test and No State Action Cases39
XVII. Congressional Enforcement of the Civil War Amendments. 40
A. Limitations of Civil Rights Laws40
B. Enforcement of the Thirteenth Amendment40
C. Enforcement of the 14th Amendment40
I. The Judicial Function
A. Judicial Review
1 Marbury v. Madison (US 1803): J. Marshall overruled section 13 of the Judiciary Act as exceeding the constitutional limits on the Supreme Court’s original jurisdiction. In so doing, he affirmed the court’s power of judicial review.
a) Several things to keep in mind:
(1) The narrow nature of the power Marshall is declaring:
· “Where the Court identifies a conflict between a constitutional provision and a congressional statute, the Court has the authority (and the duty) to declare the statute unconstitutional and refuse to enforce it.”
· Contra – see below Cooper v. Aaron
(2) The limited power of the court with regard to “enforcement.” Note that the Court can’t nullify the act it can only refuse to enforce it.
(3) Marshall’s response to the sentiment that the Court was a “Anti-democratic” institution
· At the time of the decision, Marshall (and the Federalist court) were under attack from the Jeffersonian Republicans for being “anti-democratic” and elitist (the Federalists were known for protecting property interests). In addition, the court as an institution was under attack as an institution b/c it was the only unelected branch.
· In an effort to respond to these concerns, Marshall borrowed an argument from Hamilton –
(i) That the constitution is the ultimate manifestation of the will of the people, AND
(ii) That the court has the unique role of safeguarding the constitution from mismanagement/interpretation by the other branches that may be more subject to political whims…
(4) Brilliance of decision: “rejecting and assuming power in a single breath”
· At the time Marshall handed down decision, Cts were in a vulnerable state and their powers were largely undefined. The Ct was also uniformly Federalist and faced a particularly antagonistic Republican executive and legislature. Marshall wisely sacrificed the Courts minor power to hear cases over writs of mandamus, while asserting the much more important power of judicial review. More importantly, by not issuing the writ he left the executive w/ nothing to do. Had he ordered the writ Madison would have been sure to ignore it, only further undermining the legitimacy of the Court.
· Note: Often the bounds of the courts power are determined by the court’s recognition of what it can and can’t enforce. The few times the court has overstepped these bounds it has been defeated – either by amendment, war…only hurting the legitimacy and authority of the branch.
2 Cooper v. Aaron (US 1958): Arkansas officials claimed that they weren’t bound by decision in Brown v. Bd. Of Ed. b/c Arkansas wasn’t a party. Ct reads Marbury as holding that, “the federal judiciary is supreme in the exposition of the law of the Constitution.” Thus, under Marbury and the supremacy clause Brown’s interpretation of the 14th A. is (by the court’s argument) the supreme law of the land.
a) Note: This sweeping notion of judicial supremacy is at odds with the more limited doctrine set forth in Marbury.
B. Supreme Court Review of State Court Decisions
1 The Judiciary Act of 1789, Section 25
a) Gave the Supreme Court authority to hear appeals from state courts in cases involving questions of federal law.
b) (Note: With the rise of states’ rights agitation during and after the War of 1812, the Court’s right to review such rulings was challenged).
2 Martin v. Hunter’s Lessee (US 1816)(J. Story), Defended the legitimacy of S.Ct. review of state court interpretation of federal law and rejected VA court’s challenge of section 25.
a) Decision relied on the text of Art. III and Art. VI
(1) Art. III
· Art. III grants S.Ct. appellate jurisdiction but left it up to Congress to create any federal courts.
· Since the Framers knew there might not be any federal courts, they must have been talking about appellate jurisdiction in cases involving state courts.
(2) Art. VI (Supremacy Clause)
· While the Supremacy Clause directs the state judges to honor the Constitution over conflicting state laws, the Framers nonetheless provided the S.Ct. review in such cases to ensure the supremacy and uniformity of federal law.
· (Note: language reflects general distrust of states by Federalists)
3 Cohens v. VA (US 1821), Held that the S.Ct. could hear Cohen’s appeal under section 25 and rejected VA’s argument that the State had the final say on matters of constitutional/federal law.
a) NOR, did it matter that here, unlike in Martin, the state was party to the suit. Art. III, section 2 gives the S.Ct. appellate jurisdiction in “ALL cases arising under the Constitution, laws, treaties of the U.S., “whoever may be the parties.”
b) Although the 11th A bars federal jurisdiction where a citizen brings suit against a state, we do NOT have an 11th A. problem here because the state filed the initial action – this is simply an appeal from a state-initiated criminal case.
C. Adequate and Independent State Grounds
1 Section 25 of the Judiciary Act of 1789, Congress expressly limited the S.Ct.’s review of state court judgments to questions of federal law. If a state court had also decided questions of state law, the S.Ct. couldn’t review the correctness of those state decisions. Though Congress later dropped this limitation on the scope of review, the S.Ct. has continued to follow that principle.
2 Problem Case: When a state court’s judgment rests on two alternative grounds (state and federal).
a) In this situation, the S.Ct.’s review of the case could have no possible effect on the rights or duties of the parties (the state could always ignore it and decide it on state grounds).
b) Sounds a lot like an “advisory” opinion by the S.Ct. to the states (“If we were to decide this on federal grounds, this is what we would recommend you do…”)
c) For this reason, when the requirements of the adequate and independent state grounds doctrine are met, the state court’s decision is absolutely shielded from S.Ct. review, no matter how erroneous that state court’s handling of federal law.
3 “Adequate and Independent” State Grounds:
a) Adequate:
(1) (1) Fully sustains the result; and
(2) (2) Does not itself violate the Constitution/federal law
b) Independent:
(1) One that is not based on the state court’s understanding of federal law
D. Congressional Control of Federal Court Jurisdiction
1 Art. III, section 2
a) “…In all other cases before mentioned, the Supreme Court shall have appellate Jurisd
s either conceptually or factually too abstract or speculative, the court becomes increasingly unlikely to find an “injury-in-fact”
· See Lujan v. Defenders of Wildlife (1992)(environmental organizations challenged a federal regulation that rendered the Endangered Species Act inapplicable to the federal funding of projects in foreign nations)
(i) Conceptual infirmity
(a) Rejected 3 creative theories of harm (ecosystem, animal, and vocational nexus)
(b) Suggested that had Ps observed/worked with a particular species in the area in which they were being threatened, it would have constituted an actual harm…
(ii) Speculative facts
(a) The injury here (the possibility of traveling to study the species) was too speculative. Court suggested it would have been more receptive had the Ps already made definitive plans/investments in visiting the place.
(3) 3. Doesn’t necessarily have to be an economic harm
· See Friends of the Earth v. Laidlaw Environmental Services (S.Ct. 2000) (Court found that, under the Clean Water Act suit for discharging pollutants into a river, members of an environmental organization satisfied the injury-in-fact requirement by attesting that the pollutant discharges had deterred them from fishing, camping, swimming…(despite the fact that the D argued that no harm to the environment had been demonstrated).
b) Cause-in-fact – two parts
(1) But-for causation:
· P must establish a causal link between the claimed injury and the conduct of the D – the injury must be “fairly traceable” to the D’s conduct.
· As with injury-in-fact, the Ct will be somewhat reluctant to accept what may be characterized as speculative/elongated chains of causation, particularly when absent 3rd parties are involved.
· Contrast the below two zoning cases:
(i) Warth v. Seldin
(ii) Contra Arlington Heights
· Bennett v. Spear (1997)
(i) Fact: 4 parties receiving water from the project filed suits against the FWS and Secretary of the Interior , arguing that the ESA required that the potential economic impact be considered whether or not to complete a project that will danger endangered species. They claimed standing under the “citizen-suit” provision of the ESA.
(ii) The broad citizen-suit provision: (1) includes cases involving over and under enforcement of the ESA; (2) creates legitimate basis for standing here b/c (a) there is an alleged economic injury; (b) the injury is “fairly traceable” to the Services Bio Opinion and is “likely” to be redressed.
c) Redressibility: Focuses on relationship between injury and relief sought which must be designed to alleviate the injury caused by Ds conduct.
3 Generalized Grievance:
a) General Rule:
(1) Precludes Art III courts from entertaining “citizen” or “taxpayer” lawsuits in which the only injury claimed by the P is the shared harm experienced by all citizens and taxpayers when the gov’t fails to comply w/ the Constitution or laws of the U.S. Unless the P can show that the challenged gov’t action caused him to suffer a particularized injury (eg. property damage) standing will be denied.
(2) Frothingham v. Melon, (1923): no taxpayer standing to challenge federal spending measure as inconsistent w/ the 10th Amendment (sovereign immunity).
b) Exception: Flast v. Cohen
(1) Court has since then made it clear that this will be a NARROW exception (probably will only apply in Establishment Cl. cases).
4 Third Party Standing
a) Craig v. Boren
5 Legislative Standing
a) Raines v. Byrd:
(1) Contra, Clinton v. NY
b) Powell v. McCormack:
D. Mootness
1 Basic Principle: That Cts. will not decide cases in which there is no longer any actual controversy.
2 Typical Case: Where litigants clearly had standing to sue at the outset of the litigation but events occurred once the lawsuit had gotten under way which deprived litigants of the necessary stake in the outcome.
a) Despite its Constitutional origin, the Court has carved out a variety of exceptions to it. Harms, which can prevent a case from being held moot:
(1) A continuing harm to the P;
(2) The likelihood of the future recurrence of past harm; (D’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice Friends of the Earth)
(3) The probability that the future cases will evad
