Fall 2009 – Professor Little
Federalism = the vertical division of authority between the federal and the state governments
· Why should we keep it?
o Lessons the chance of federal tyranny (tyranny is much greater at the federal level than the states)
o States are closer to the people and more likely to respond to the needs of the people
o States can act as experiments – try different thinks w/out risk to whole country
v Broad themes:
1) Purpose of the Constitution
§ Establish National Gov’t and divide power
§ Determine Relationship between national gov’t and states
§ Protect Individual Rights
· Constraints on the Federal Gov’t for the benefit of States
o The federal gov’t is one of limited power, can only find power if in the Const
o If Constitution is read narrowly (Lopez) has the benefit of constraining the fed 4 the states
o We also have the 10th that helps restrain the fed for the benefit of the states
· Constraints on the Federal Gov’t for the benefit of Individual Rights
o Reflected in the Bill of Rights, originally intended to be constraints on the federal power
§ Pentagon Papers, Hamdi/Hamdan Korematsu (no constrain here, but the context was looking at the constraints on the fed)
· Constraints on the States for the benefit of the Federal Gov’t
o Not too many of these, bc our gov’t is lopsided
o Preemption is the big one, the states are subject to the Supremacy clause
§ Dormant CC works here as well, saying the const says the state cannot operate in that area
· Constraints on the States for the benefit of Individuals
o There is a floor
o Brown v. Board, Lawrence, Casey, Lochner, Civil Rights Cases, TX v. Johnson
o 14th is particularly imp, bc it acts as a conduit for which the BoR is incorporated against the states
2) The Role of the Cts & the type of judicial review/scrutiny the court uses
How rigorous is the court in it’s evaluation of the law in issue?
· Exec: Ct is much more closely scrutinizing of the president if congress has acted, ct sees itself as an umpire.
· Legislature: it depends…Wickard v. Lee Williamson
· 1st A: Court became formal on naming the type of review. They explicitly discuss of level of scrutiny (content based v. neutral)
· Procedural DP: Ct is very searching in Goldberg of what gov’t was doing, but in Matthews/Hamdi, the ct was very pragmatic, understanding and giving leeway to gov’t so long as it recognizes that it has to give some process
· Substantive DP: Significant level of review where SDP is involved bc a fundamental right is involved
o Strict view: Lochner
o Williamson: Rational Basis
o New Test: Gross Excessive (ratio of punitive vs. compensatory damages)
· E/P: Formalizes the level of scrutiny, lays it all out for you, no mystery, the result of the case is pretty laid out
· Commerce Clause: Hammer (strict); Wickard (deferential to Congress); Lopez/Morrison – Gonzalez
Levels of Scrutiny – test applied to determine if a law is constitutional
Rational Basis – minimal level of review
o All DPC and EPC must at least meet rational basis
o Law is upheld if it rationally relates to a legitimate governmental purpose
o Enormously deferential to government. Supremes rarely invalidate a law for failing rational basis
o Cases: Williamson v. Lee Optical; Gonzales v. Raich; Wickard v. Filburn; Katzenbach (discrim in restaurants); Carolene Products
o Law must be substantially related to an important governmental purpose
o Purpose must be important
o Used for gender discrimination cases, commercial speech, etc.
o Cases: Turner Broadcasting; O’Brien Test (test est where draft cards were burned); Romer v. Evans and any cases based on gender classifications
o Law must be necessary to achieve a compelling governmental purpose
o Must be compelling and necessary
o Laws are generally declared unconstitutional when strict scrutiny is applied.
o Strict Scrutiny applies to all facially race (or nat’l origin) based classifications.
o Cases: Content based regulations on speech: Boos (foreign embassy); US v. Library Ass’n (internet in library); RAV; Carolene (we know if involves BoR use strict scrutiny); Classifications on Race: Korematsu; Loving v. Virginia.
Undue Burden – level of scrutiny created in PPH v. Casey to evaluate restrictions regarding abortion.
Introduction – Why we have a Constitution
1) Why do we have a constitution?
· **The Constitution enumerated a process/structure to protect rights
· Establish/organize a national government
· Divide Power btw fed and states and branches
· Define a relationship btw fed/st power
· Protect individual rights
o Not too many enumerated rights in Const.
o Each amendment has to be incorporated against the states
· Why 3 Branches?
· Balance of power, check abusive power
· Specializationàeach branch has a unique function yet they have to rely on one another and their functions often overlap
· Federalism: we divide power btw states & federal gov’t, people who are for strong state power (10th amendment)
o Separates power to protect against tyranny
o State power allows for diversity (ex. same sex marriage)
o Federal power allows for uniformity (*imp. for things such as int’l affairs)
o Uniformity/diversity=imp dichotomy illustrative of the st/fed gov’t struggle
2) Why do we have a Constitution?
· Can amend it, thus flexible & enduring (only amended 17 times)
· Difficult to amend= avoid short-term impulses
3) Various Themes of Interpretation
· Originalism: What would the framers do? Theory: only thing that matters for interpretation are the clearly stated norms in the const.
o Textualism is the statutory counterpart to originalism
· Moderate-originalism: look at the purposes of the text to inform the meaning of the text (ex. Justice Scalia)
· Non-originalism: There’s an evolving meaning to the constitution. It is a living document that changes with the social norms and infused terms w/const. requirements needs of American society
· Conservatism:originalism, antagonism to judicial activism, preference for legislative action over ct action, libertarianism, small gov’t, free market
· Liberalism:recognition that st protects individuals and individuals must be protected by the state, leg
al review was established in Marbury v. Madison – stating the constitution is “law” and it is the province and duty of judiciary to declare what the “law” is
o Supremes have power to review acts of Congress & the Exec Branch and can declare them as void if they violate the Constitution.
o Opinion: Marshall reads the Constitution as law of the land, only the enumerated powers are allowable;
· Federal Courts can’t hear cases beyond what’s specified in Article III
· Courts are limited to cases and controversies arising under Constitution
B) Limits of Judicial Power
1. Interpretive Limits
· Bickel Article: judicial review = undemocratic, BUT, also legitimizing (legitimizing by not striking down an act of Congress to show support)
o JR is counter majoritarian.
o Judiciary can give a sober second thought
o Judges can:
· Deny validity of majority principles
· Make unpopular decisions/represent the minority
· Deliberate w/out conflict b/c not elected
· Educate the public through their opinions
· Constitutional Interpretation: Viewed as a spectrum
o Language of the Constitution
· Pro: consistency, uniformity, less flexibility for judiciary, constitution is a reflection of the majority will
· Cons: We want law to be open to reflect current needs, less ability for change, words have multiple meanings, no real truths
o Cannons of Construction
· Analyze why each word is in the constitution
· See Scalia opinion in D.C. v. Heller (looks to dictionary, federalist papers, state constitutions, Hamilton (who hates balancing)
o Clearly implicit intent in words
· See Breyer opinion in D.C. v. Heller (all about balancing the ends with the means – look to see if the statute makes sense in context)
o Evolving meaning
3. Justiciability Doctrines also limit (whether a court will hear a case depends on the case/controversy involved):
(a) Ripeness (when a lawsuit can be brought): an immediate threat of harm – π must be harmed or have immediate threat of harm b4 fed ct will hear case. π can’t obtain declaratory judgment before the law is enforced.
(b) Mootnes (suit can be brought): real live controversy must exist @ all stages, not merely when the complaint is filed. Otherwise, it is moot.
(c) Standing (who can bring suit): Person must have concrete stake in the outcome of the controversy
(d) NO Advisory Opinions (Political Question – what can be brought): won’t render decisions in moot cases, collusive suits or cases challenging gov’t legislation