Martha McCluskey Spring 2014 Con Law Outline
Introduction to Constitution/History
Federal v. State Government
1. Federal (Congress): MUST have affirmative grant of power from the Constitution in order to act. Before Congress can restrict an act must have power from Constitution allowing them to act.
o Types of affirmative grant of power:
§ Article 1 grants of power: war, post office, bankruptcy, naturalization, copyright & patent, military
§ Commerce Clause
§ Taxing and Spending
§ Dormant Commerce Clause
§ Reconstruction Amendments:
· 13th Amendment: abolish slavery
· 14th Amendment: all person born in US are citizen, EP and DP
· 15th Amendment: all persons can vote.
o After determining which affirmative grant of power allows Congress to act must find if there are any limitations.
2. State: Does not need Affirmative Grant of power. State can act UNLESS specifically stated in the Constitution they can’t act. All power not delegated to Federal are left to the State’s discretion.
o Types of Limits: Reconstruction Amendment
Analyzing Constitutional Method/Issue:
1. What is the Rule? à This is the classic doctrine question.
a. Rule: support, explain, illustrate (general principle, fine points)
2. How does it Apply?
a. Application: explain, support (Analogy — compare and contrast )
3. Why this Rule? à The Supreme Court chooses what rules to apply, why is the rule constitutional
a. precedent : Supreme Ct says so
b. “Meta-rules” methods of interpretation ask who has authority to grant the power. It looks at the meaning of words in the Constitution, and it can be interpreted in two different ways; (1) interpret the words as they would mean in current days or (2) interpret the words as they would have mean in old English when the constitution was drafted.
4. What does it Add to the Big Picture?
a. How fit with other doctrines?
b. How change overall purpose, vision?
Constitutional Change
· 1778 Founding, replaced Art. Of Confederation
o Constitution was written and a central authority was created
· Civil War & Reconstruction Amendments: 1860s – 1877
o Adoption of the 13th, 14th, and 15th amendment.
o Established an stronger central government
o Limiting state power
· New Deal: 1937 shift (The Great Depression)
o Big expansion of Executive Branch power
o New laws and federal agencies were created
o Striking of federal judicial power, grant state more power
· Warren Court: 1950s and 1960s
o Brown v. Board of Ed. – segregation is not equal
o Broaden protection of individual right in 1st Amendment, criminal arrest, criminal justice system
o Equal rights for due process
o Expansion of individual rights which equal to limitation to federal government
o A different view: this is about judicial power or this is to expand individual rights and limit government power
· Rehnquist Court: 1990s new federalism
o Less dramatic change
o Not changing but modifying and adding to current rules
o New focus to state’s right because too much power was given to federal government
o Undoing the New Deal
· Present: Roberts Court?
o Supreme Court is divided on many issues.
Overview of U.S. Constitution’s Text
1) Preamble: what significance?
· This is in the Constitution but is not used or cited. This is considered the mission statement, states the purpose of the constitution.
2) Government structures (established the central government, divides up power between governments, but does not provide individual rights)
· Article I – Legislative branch
· Article II – executive branch
· Article III – judicial branch
· Article IV – interstate relations
· Article V – Amendment
· Article VI – Role of the Constitution
· Article VII – Ratification
3) Amendments
· Bill of Rights: first ten amendments (individual rights)
o 5th, 9th, 10th , 11th
· Reconstruction Amends.
o 13, 14, 15
Introduction to Methods of Interpretation
Three types of primary judicial limits:
1. Interpretive limits: raise the question of how the Constitution should be interpreted. Courts have often looked to tradition in deciding whether a right is protected by the Constitution.
a. Orginalism: Courts should find a right to exist in the Constitution only if it is expressly stated in the text or was clearly intended by the framers. If not mention in the Constitution then the legislative to decide the law, unrestrained by the courts.
b. Non-originalism: view that courts should go beyond the set of references and enforce norms that cannot be discovered within the four corners of the document. This allows the Constitution to remain with current times and evolve to meet the needs of society that is advancing technologically and morally.
2. Congressional Limits: refer to the ability of Congress to restrict federal court jurisdiction
3. Justiciability Limits: refer to a series of judicially created doctrines that limit the type of matters that federal courts can decide.
Types of Interpretation/Arguments:
1. TEXTUAL: Specifically looking at the words in the Constitution, looking at the words and its placement to understand or interpret the meaning of the rules. Text based argument is focusing on the meaning of the word, placement of the words and what words are or are not included. There are two ways to argue this by taking the text as a whole or just singling out specific word or words. The more text you use, you are encompassing the situation but if you sing out words you are not giving attention to the situation of when the Constitution was written. We apply the current day meaning to the word.
2. STRUCTURAL: design of gov’t branches. This argument looks at the relationship between the government branches. We look at the principal of power and how it is distributed. This raises the issue of how the branches are divided, and the division of power. Don’t just say “court has too much balance” define what is the balance, what powers/limit does each branch have.
a. Federal gov’t branches: Congress, Judicial, Executive
b. Federal/state: The national government is limited and states are preexisting. If expand federal power it will limit the states’ power.
c. Individual/government
d. Legislative/judicial: Congress has the power to choose the means or method to achieve its enumerated means. Ex. Congress has enumerated power to raise revenue and increase commerce and they can choose the means to achieve that goal such as creating the goal. The court role is to limit Congress in its enumerated means but Congress can choose how to get to it. Congress can collect facts and data on how to achieve its goal (choose its means to the ends).
3. ORIGINAL INTENT: (Framer’s Intent or Historic Intent) framers’ purpose in historical context. Does framers’ intent support this rule? However the framers did not publish their intent until much later on, so it’s hard to pinpoint what the original intent at the time of writing the Constitution. It can be viewed that the framers didn’t want their intent to be used when interpreting the Const. they might have wanted to see how the Const. would be applied before seeking out their intent.
4. PRUDENTIAL: practical effects on the Court and Constitution especially. Ask what is practical and workable. Ask what is practical and what is best for the public. But this is slippery because the constitution might not always ask what is best but govern who gets to decide to govern certain issues. Rarely used, focus on pratical implications for Court, not general policy.
5. PRECEDENT: Stare decisis. Present day court has disagreement whether we should follow precedent. By following precedent we are not interpreting the constitution but only following past white male judge’s opinions; but if we don’t follow precedent we are at the whim of individual judges and what they feel or think at the time.
6. FUNDAMENTAL IDEOLOGY: principles presumed to ground the Constitution. Which religion value or morals should be used on the Const.? Should it be the general common religion of when the Const. was written or encompasses all religion and views since it express freedom of religion. Rarely used.
McCulloch v. Maryland: (1819) Constitutional Interpretation
· Facts: The State of Maryland (P) and the McCulloch, a cashier of Bank of US (D). Maryland wants to tax the Bank of US, a federal bank created by federal gov’t. In other words, can a state tax a federal institution. United States was a new country so Marshall set the stage to acknowledge that many people would not like his decision. The Constitution was just signed about 30 years ago, there are still some who disagree with it. Creating a bank was still controversial.
· Issue: (1) whether the Bank of US constitutional? Did the US Constitution allow Congress to create a federal bank? (2) If Congress is allowed to create a federal bank can the state can tax it.
· Holding: (1) Yes US can establish a bank and (2) no the state can’t tax it.
· Rule: Congress has the power to enact laws that are necessary and proper to get to the means to the enumerated ends. State can’t create law that conflicts with US Constitution.
o 1) Federal legislative powers limited to granted ends
o 2) But broad Congressional powers to choose means (Judicial deference to Congress)
o 3) State powers are plenary
o 4) 10th Amendment not independent check (limits the state’s power)
o 5) Necessary and Proper clause not a grant, but supports broad Congressional discretion. You will need a enumerated end and an affirmative of power, Necessary and proper just allows you to choose the means.
· Reasoning: (Justice Marshall) Text base argument to support the rule: US Constitution gives Congress to establish bank. The bank is within the enumerated means therefore Congress has the power to create laws to achieve this means.
· Marshall argues the interpretation of the word “necessary.” State argue the narrow meaning of “necessary” that Congress can only make laws if it is utmost needed. Congress argue the broader meaning of “necessary” to mean as long it is good or useful for the general public they can act. Depending on how strong the word “necessary” would state whether Congress had the power to create the bank.
· Not all powers are listed in the Constitution but that doesn’t mean Congress can’t regulate. Ex. Congress can regulate post office bu
d Courts interpret laws. Counter argument: the one that has the power to interpret the constitution can abuse the law. The less democratic branch of the government (unelected judges) have the final decision on what the law means.
C: Constitution gives the judicial branch the power to interpret the Constitution. But the Supreme Court doesn’t really have the final word because they don’t have the real power to enforce the rules.
Significance of the Marbury v. Madison case:
1. Creates the authority for judicial review of executive actions. Executive branch has discretion as to how to act and the Courts have the power to check on them.
2. It establishes that Article III is the ceiling of federal court jurisdiction. The precise holding is that Congress can’t expand the original jurisdiction of the Supreme Court. Article III provides maximum jurisdiction, and federal courts cannot grant jurisdiction by consent.
3. It establishes the authority for judicial review of legislative acts by allowing the Supreme Court to declare federal laws to be unconstitutional.
4. Marbury extended that The Supreme Court has the final word for interpreting the Constitution and that that states can’t individual interpret the Constitution.
Federal Judicial to Review State decision: States can’t individually interpret the Constitution (but can interpret the S. Ct. interpretation of the Cont.)
Martin v. Hunter’s Lessee (1816)
· Facts: US and England had a treaty that British citizens could own land in the US. Martin inherited land from a British citizen in Virginia. Hunter claims that Virginia had taken back the land before the treaty was passed, so the land belonged to Virginia and Martian couldn’t inherit it. Virginia held in Hunter’s favor and took land from Martin.
· R: U.S. Supreme Court has power to review state court ruling on federal laws (treaty). The Constitution allows the Supreme Court to review state court decisions, especially federal law because S.Ct. are in a better position to do so, there will be state prejudice or interest that might affect state ruling, and this will provide uniformity and continuity throughout the country. (structural arguments)
Cohens v. Virginia (1821)
· Facts: Two brothers were convicted in Virginia state court for selling District of Columbia lottery tickets in violation of Virginia law. Defendants seek review from US Supreme Court, VA argued (1) in general St. C. had not authority to review state court decisions, and (2) review is not allowed in criminal cases where state government is a party.
· R: Federal judicial power includes review of constitutionality of state criminal law. Marshall argue that state judges are dependent for office and salary on the will of the legislature and are not able to properly rule over protection of federal rights. Criminal defendants can seek St. C. review whether their conviction violates US Constitution. Reaffirms St. C. authority to review state court judgments. (structural arguments)
Cooper v. Aaron (1958)
· Facts: Little Rock, Ark. school desegregation. State refusal to comply with Brown v. Bd. of Ed.
· I: Do Federal Courts have the power to override state court interpretations of 14th Amendment Equal Protection Rights? Yes.
· R: The decision of S. Ct. are binding to the State.
· A: Structural arguments: State versus Federal Court interpretation of Constitution? Federal court wins
· Arkansas is a state and must support the Constitution. Arkansas may not act in contradiction of the Constitution. To be a country there must be uniformity hence the federal courts should have the power to interpret the federal constitution to preserve uniformity and continuity. Federal court can step in and assert control over the state courts.
· Textural argument: States agreed to be bind by the preamble (“we the people…”). Article VI (Supremacy Clause) makes the Constitution ‘the supreme law of the land’… Marbury v. Madison… declare the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution…Every state legislator and executive and judicial officer is solemnly committed by oath “to support this Constitution.”
· C: Yes federal court has the power to overrule state court interpretation of the 14th Amend.
