Constitutional Law Outline
Different Standards of Constitutional Review: great thing to discuss on exams; cite to cases when determining which standard to use; say “the government will argue that ___ standard should be used…but…”
Major content → Nothing else matters
Individual rights always win; the courts are basically saying that the legislature has no power to regulate/interfere
Few rights are absolute (Lochner comes close)
Major content → Compelling interest/least restrictive means
Types of laws → fundamental rights (particularly those listed in the Bill of Rights); violation of equal protection based on race (“suspect classification”)
Examine in detail. Little deference to the legislature.
Standard (3 prongs)
There must be a compelling government interest (necessary/crucial rather than merely preferred)
Government must show that it used the least restrictive means (in other words, there cannot be a less restrictive way to effectively achieve the compelling government interest, but there can be an equally restrictive alternative)
Government must show that the law was narrowly tailored to achieve that goal/interest (consider under- and over-inclusiveness) – this is sometimes considered part of the “narrowly tailored” requirement
Government almost always loses
Major content → Substantial or important interest/Substantial connection/relation
Types of laws → gender discrimination
Substantial connection between the ends and the means
Substantial government interest
Major content → Reasonable/Rational means
Types of laws → economic regulation
Reasonable government interest
Reasonably related ends to the means
Government almost always wins
None (no review)
Major content → not court’s business (defers entirely to legislature)
There is no right
I. Introduction to Constitutional Law
A. The constitution addresses the following issues:
1. Powers of federal government vs. the state government (federalism)
2. Internal allocation of power in the federal government (checks and balances)
3. Allocation of power and rights between individuals and the government (individual rights)
4. Slavery and equality
B. Not many individual rights in the body of the constitution. The individual rights originally included were:
1. Cannot use a Bill of Attainder → Constitution makes it illegal for federal/state legislature to enact laws that declare a person or group of persons guilty of some crime and punishing them without benefit of a trial
2. No ex-post facto law → limited to criminal laws. (Cannot be prosecuted for a crime for conduct that was not criminal at the time you did it.)
3. Writ of habeas corpus → cannot be imprisoned unjustly. The writ of habeas corpus says the government must explain why they are holding or restraining an individual. (Government has to show cause.)
4. Contract Clause → new historical development of the time. (Every person, not just king or lord, can make a legally binding K.)
5. Privileges and Immunities Clause
1. Body of constitution → each state would have their elite decide who to send as electors to the Electoral College.
2. Each state decides who to send
3. No direct voting except for the house of representatives
4. No national set of qualifications for voters. The state legislature would decide the qualifications
1. Bill of Rights → individual rights: rights at trial, right of criminal defendants, etc.
2. Extension of voting rights
E. Suggested (not established) hierarchy of the way the decisions on the Constitution should be made
1. Is there a constitutional provision?
2. Look for precedent and other clauses on the same level → historical practice. Who has the capacity to make the decision?
II. Legislative Power
A. McCulloch v. Maryland1819 Marshall (US bank was a depository. Conflicted with state banks.)
1. Issue → Power of Congress: Does Congress have the power to create a Bank? If Congress has the power to create a bank, is the state tax of the bank valid?
2. This fundamental case established the following two principles:
a. That the Constitution grants to Congress implied powers for implementing the Constitution’s express powers, in order to create a functional national government, and
b. That state action may not impede valid constitutional exercises of power by the Federal government
3. Constitution gives Congress related powers (not the express power to create a bank). Creation of a bank is not prohibited. The list of Congressional powers is limiting but not exclusive
4. Argument that the list is exclusive
a. 10th Amendment → read to limit the power of the Federal Government to only powers enumerated in the Constitution.
5. Argument that the power goes beyond the list (3 theories)
a. Greater Includes/Implies the Lesser Theory → Powers on the list such as war, taxes, borrow money, regulate commerce means that they can do lesser things such as create a bank
i. Court does not adopt this argument
ii. Court says that this is too broad
b. Means arguments → Have the means to execute a greater power – Looks at Proper and Necessary Clause
i. Court uses this argument
ii. Look at the powers: if Congress has power to do Y, then they can do reasonable means (X) to accomplish the Y (if you have power Y, and X is a necessary means for Y, then you have X as well)
c. Implied argument → If something is Implied as incidental to scheme, single power or combination of powers, then it is okay; ex. if you have the power to punish, then you have the power to jail
i. They approve this argument but rely on means argument instead
ii. Look at the powers and interpret them as implying additional power
6. Necessary and Proper Clause→ §8 → “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the government of the United States, or in any Department or Officer thereof.”
i. State defense → only things that are indispensable
ii. Court → necessary can mean essential or useful and convenient (loose interpretation!!)
1. The construction, subject, context and intention have to be considered
iii. The Clause is placed among the powers, not the limitations
iv. It enlarges, not diminishes the powers of Congress – increases Congress’s powers!!
III. Executive Power → this is a broad power without many limits especially in emergency situations
A. Youngstown Sheet & Tube Co. v. Sawyer [The steel seizure case] 1952 Black (plurality opinion)
1. President Truman ordered a seizure of a steel mill
2. Issue: Did President Truman have the executive power to do this?
3. Holding: The Constitution does not permit the President to seize private property to stop labor disputes; The President did not have the inherent authority to seize private property in the absence of either specifically enumerated authority under Article Two of the Constitution or statutory authority conferred on him by Congress.
4. Court defined executive power as coming from the language of the Constitution or an Act of Congress – the President is not a lawmaker (he only has the power to execute preexisting laws)
a. Did Executive get this power from the Constitution?
i. Was there any reasonable interpretation of a clause in the constitution that would allow the executive to do this? (More strict interpretation of the Constitution than McCulloch.)
1. §3 → “he shall take Care that the Laws be faithfully executed”
a. It is not prohibited, but Congress had the power to seize therefore they must ratify the president’s order or have given him the power. (Refer to powers granted by Congress.)
2. §2 → “The president shall be Commander in Chief of the Army and Navy of the US, and of the militia of the several states, when called into the actual Service of the United States.; he may require the opinion, in writing, of the principal Officer in each of the Executive Departments, upon any Subject relating to the Duties of their respective offices, and he shall have Power to grant reprieves and pardons for Offenses against the US, except in Cases of Impeachment”
a. Majority → to take private property is a job for the lawmakers not the military authority
b. Dissent → b/c the US is at war, this action was necessary for the safety of the nation and was a function of carrying out duty as commander in chief (means)
b. Did Executive get this power from Congress?
i. Taft-Hartley Labor Management Relations Act of 1947 → The Majority says that since Congress rejected an amendment to the Taft-Hartley Act that would have allowed this, then Congress implicitly (or explicitly?) rejected this method. Therefore, the President was not granted this power by Congress.
1. (BUT the Court may have relied too much on this b/c there may have been other reasons why it was rejected; Rejecting an amendment authorizing the power is not the same thing as outright rejecting the power)
ii. Judge Frankfurter (Concurrence) → viewed rejection of the amendment to the Taft-Harley Act as an explicit rejection
iii. Judge Jackson’s analysis (Concurrence) gives the following three categories, which have become the current view of the three types of Presidential action
1. Expressly granted the power by Congress – here the President’s power is maximal
2. Zone of Twilight
a. Absence of Congressional authorization or denial
b. When distribution of Executive and Congressional powers is concurrent or uncertain
c. Depends on the imperatives of the events and the contemporary imponderables rather than theories of law (fact specific) – Gray area; Looks like policy, not law
3. Incompatible with the expressed or implied will of Congress
a. President’s power is at it’s lowest ebb
b. Power must be enumerated in the Constitution if it does not come from Congress
c. Can sustain exclusive presidential control by disabling Congress from acting on the subject
d. This case is of this type, and Congress should legislate because not enumerated in Constitution
c. Judge Vinson (Dissent) – Congress passed legislation directing the President to wage the Korean War, so Congress gave express authorization for the President to make sure steel production continued
B. Arguments for/against the President sending us to war by an intentional act w/o the approval of Congress?
1. Arguments for yes (not exclusive – keep brainstorming)
a. Power as Commander-In-Chief
b. No time to convene Congress – Speed and Timing
c. Secrecy of Information
d. In better position to acquire information (and make informed decision), etc.
e. Consequences → cost and otherwise of not going to war
f. Times have changed so have to react more quickly than when the framers created the power
g. Constitution grants Congress the power to declare war but not the exclusive power
2. Arguments for no (not exclusive – keep brainstorming)
a. Power to declare war (express language in the Constitution) → not only large wars but smaller excursions
i. It should be hard to go to war
ii. Language is not ambiguous, constitutional intent is not ambiguous, interpretation is not ambiguous → only Congress can declare war
b. Need to protect separation of powers
c. Decision more likely to be rational when decided by more than one person (Congress) – no one-person agenda → no one person should be that powerful
d. Undemocratic – should be a decision most representative of the people (and Congress is better informed of the wishes of the people)
3. See War Powers below
C. Korematsu v. US 1944 Black
1. Executive Order during WWII that subjected all persons of Japanese ancestry on the West Coast to evacuation to relocation centers, etc. – Congress approved the Order and made violation of the Order a crime; Korematsu was convicted of violating the Order
2. Black’s Rationale
a. The Government believed that these people were a security threat; there was a report of grave and imminent danger…BUT isn’t this racial discrimination (in violation of Equal Protection?) Yes… however, Black says that these people are a security threat first, and Japanese second (and says that this is not out of prejudice/bigotry against the Japanese…the government did not intend to punish a race of people)
b. During war or other dire emergencies, reasonable race-based classifications are not unconstitutional; the Government can take measures aimed at minorities based on ancestry and can make violation of such measures punishable as long as it cannot be proven that the Government acted with animosity.
c. Purpose based rule → since the purpose is to protect the country, not hurt people relocated it is not a Constitutional violation
3. Strict/Rigid Scrutiny → if a measure punishes someone and is racial on its face, then it deserves the utmost scrutiny of the court– Note that this is the only case where the Government won when the court performed strict scrutiny
4. Deference to the military authority
5. Historical context – this was before the Civil Rights Movement (before demonstrations, marches, etc.)
6. Frankfurter’s Concurring Opinion– Congress and Executive’s business, not the courts → judicial restraint; also says that finding something constitutional does not necessarily mean that the court approves of it
7. Murphy’s Dissenting Opinion – Murphy argued for loyalty hearings (at least for the children and elderly) – he says that no one has been proven guilty and that this is a violation of constitutional rights
8. Jackson’s Dissenting Opinion
a. A fundamental presumption is that guilt is personal not inheritable (even if not in Constitution – although this at least seems grounded in the Due Process Clause)
b. Majority basically says that any mi
this process – it is now common
f. It may be efficient, but the framers ranked other values higher than efficiency
2. Later cases → ruled the same way in situations where the legislative veto was a way to check administrative rule making. Only supposed to make general rules when they have power from Congress
B. Executive Privilege and Immunity
1. US v. Nixon1974 (Watergate where Nixon recorded all conversations but 18 hours were missing)
a. Nixon’s argument → Executive Privilege (judicially created privilege)allowed him to refuse to turn over tapes and other documents even when there was a legitimate investigation
i. Says the executive function give him absolute immunity
ii. Prosecution → separation of powers → judicial system needs to ensure criminal adjudication; not allowing this evidence would interfere with the privilege of fair administration of criminal justice (guaranteed under right to due process of law); weigh privilege of confidentiality with privilege of fair administration of criminal justice
b. Holding: While there is an executive privilege, it is not absolute. These tapes must be turned over b/c they did fall within the national security exception.
c. Court gives little advise as to how to resolve the issue but says that information should remain confidential if it relates to military or diplomatic secrets (national security privilege)
d. Option → Judge can look at it first to determine if it is privileged. If it is not, the lawyer can see it
C. Control and removal of Officers
1. Morrison v. Olson 1988
a. Ethics in Gov’t Act of 1978 → enabled AG to appoint an “independent counsel” to investigate and prosecute federal crimes by high-ranking government officials
i. If Attorney General considers it sufficient grounds, he/she conducts a preliminary investigation
ii. If reasonable grounds for further investigation, AG must request that the Special Division appoint an independent counsel and define the counsel’s prosecutorial jurisdiction
iii. Department of Justice must suspend all investigations and proceedings on the issue and defer to the independent counsel
b. Fact Summary: Morrison (D) was appointed independent counsel to investigate perjury by Assistant AG Olson, and Olson (P) sued to challenge the Act’s constitutionality, contending it violated the separation of powers and interfered with the President’s power to remove executive officers
c. Issue: Whether the provision allowing appointment of an independent counsel is Constitutional
d. Holding: The Act is Constitutional b/c it does not directly interfere with the executive’s Constitutional powers
i. Standard: impermissibly interferes
ii. The removal power is still squarely within the Executive Brach’s hands (since the AG is an executive official) – Congress has not attempted to gain a role in the removal of executive officers
iii. This Act did not impermissibly interfere b/c the AG can still fire independent counsel for “good cause”
iv. The Act’s safeguards seem reasonable because otherwise the President him/herself would be able to avoid investigation/prosecution – it makes sense that the Pres. not have full control of the independent counsel
e. Scalia’s dissent → Standard of interference should be that if there is any interference it is unconstitutional – the President is supposed to have full control (lesser control is not sufficient)
D. Impeachment of the President
b. Accused by the House (Impeachment)
c. After Impeachment by the House, it goes to the Senate for approval (need 2/3 vote from senate for conviction)
2. In 1993 the court ruled that matters respecting Congressional impeachments present non-justiciable political questions. Therefore, there are no Supreme Court opinions that address any of the important constitutional questions that may arise.
3. Art 2 §4 → “The President, Vice President and all civil Officers of the United States, shall be removed from office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors”
4. Disagreement about what constitutes an impeachable offense
a. Does Art 2 §4include a broader range of offenses or conduct now (including what we now consider misdemeanors)?
b. Move toward a parliamentary system. The Framers did not intend this. While in parliament a vote of no confidence is sufficient; here it has to be a crime not a failure of a policy or project
c. Historians read high to modify both crimes and misdemeanors
d. Would perjury fit?
e. Should it have to relate to their conduct in office? Or can it be unrelated and outside scope of office?
E. Separation of Powers
1. Separation of Powers meant to implement the fear of framers of the excesses of democracy.
a. Framers thought if people got into control, legislation would be passed that increased the right of debtors and decreased the right’s of creditors (fear stemmed from Shay’s Rebellion).
b. Fear that if people got organized and got the majority they would change the balance/imbalance on property wealth issues
c. Checks and balances makes it more difficult to get things done → causes gridlock
d. Harder for a popular majority to get its wishes implemented
VI. Federal Powers
A. The Federal Commerce Power →Art I §8 → Congress shall have power to “regulate Commerce with foreign nations, and among the several states, and with the Indian tribes
1. Commerce Clause is one of the major sources in the Constitution that Congress uses to take action
a. Expansion of Congressional power since the New Deal
b. In recent years it has taken another direction
c. Framers → tried to promote commerce particularly between the states and remove the barriers and regulation
2. Four Issues arise in the cases
a. Commerce → what exactly does commerce mean?