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Constitutional Law II
UMKC School of Law
Kobach, Kris W.

Con Law II OUTLINE
Kobach- Fall Semester 2005

THE ROLE OF THE COURTS
I. Introduction (Some History)
a. What purposes does Constitution serve-
i. Define government institutions (what the branches are, who makes decisions, how choose)
ii. Define powers of those institutions; include how they’re selected
iii. Define rights and place limitations on government power
1. Positive Rights- right to demand something from the government
a. Federal gov’t doesn’t have positive rights; some state gov’t do
2. Negative Rights- right to stop the government from doing something to you (like shield from government’s power)
iv. Hamilton said didn’t need to create rights, just define constitution w/ certain limits.
v. But, people wanted rights, so BILL OF RIGHTS
b. Constitution created “for the people”, but not ratified by the states. It was actually created by the convention.
c. Articles of Confederation- were really just a very loose arrangement where sovereignty was with the states. Now powers with Congress; like a treaty between 13 separate entities.
d. Constitutional Convention in Philly only supposed to propose changes to Articles; but, they ran away, and decided only 9 states needed to ratify.
e. Doctorate of Enumerate Powers:
i. Government of US is a government of enumerated powers; may ONLY exercise those powers specifically mentioned in the Constitution and no others.
ii. Federal gov’t’s powers are limited in Constitution:
1. Rights given
2. Limitation on Congress’ power in Art I sect 9
a. Framers were worried about Congress overreaching powers
3. BUT- there is no express limitation on powers of executive/judiciary branch
f. Residual/Inherent/Reserved Powers:
i. Primary sovereigns who hold power and have delegated certain powers to federal government. (STATES have broad police powers; FEDERAL gov only has limited, enumerated powers)
ii. Everything states don’t give to federal government, they retain.
iii. Some state constitutions do limit the state government to enumerated powers, but most do NOT. Most states have broad residual powers- “police powers”.
1. Police powers- powers to protect ppl’s health/safety/welfare/morality; which is essentially everything.
g. Ways to enforce a constitution:
i. Judges enforce it to strike down laws that exceed constitution
1. Enforce the boundaries- that’s what we see a lot today
ii. Jefferson thought each branch should patrol its own boundaries of power. Co-equal branches have co-equal authority
iii. Legislative branch could enforce constitution
iv. Executive branch “”
v. Each one could enforce other one. (Inverse of what Jefferson said)
vi. Have states decide if federal government was w/in its bounds
h. Federalist Paper 78-
i. Hamilton said that the courts were designed to be an intermediate body between people and other bodies. If courts interprete meaning of laws, why not have the courts interpret meaning of Constitution? Hamilton thought judiciary was least threatening branch b/c they don’t exercise will, only exercise judgment.
i. Marbury v. Madison- Established JUDICIAL REVIEW
i. Facts: Marbury was appointed justice of the peace for DC by President Adams and confirmed by the Senate on Adam’s last day in office. The formal commission was signed by NOT delivered. Madison, sec of state, was directed by the new prez (Jefferson) to withhold Marbury’s commission. Marbury brought a writ of mandamus directly to SC under Judiciary Act of 1789
1. Note- Marshall interpreted the Judiciary Act of 1789 very broadly to do more than it actually does; He interpreted jurisdictions narrowly to create a conflict…This case could have been decided on statute grounds w/out even considering a constitutional issue.
ii. Issue: Is the SC empowered to review acts of Congress (federal statutes) and void those it finds violate the constitution?
iii. Arguments Marshall makes:
1. Nature of the judiciary- courts are a law defining body; it has to say what the law is.
2. Maybe this is a check of one branch on another (but all other checks/balances are in the constitution)
3. Court has to adjudicate it otherwise it blinds itself
4. Oath of office clause of Art 6 that says judges must act under authority of Constitution
5. Textual arguments-
a. Art III, section 2- (best textual argument for judicial review) extended to cases arising out of constitution. Marshall said it would be absurd if court is given the power to resolve those cases if it can’t enquire into the meaning of the Constitution.
i. Counter-argument- it doesn’t say that court can decide constitutional conflicts exclusively. And its indirect- why didn’t they just give SC final authority?
6. (Jackson’s view: didn’t agree w/ Marshall, he thought all branches should have a say. He thought court can try to persuade about what’s constitutional, but each branch has their own view. Jefferson agrees w/ him).
iv. Holding: Yes. “It is emphatically the province and duty of the judicial department to say what the law is.”
v. Rule: Judges are final arbiters of constitutional disputes/constitutional meaning.
1. Problem with judicial review is that the constitutional no where explicitly states the judicial branch will make these decisions.
2. Judge Jackson/ Learned Hand later said there was no authority in Constitution that gave court this power in Marbury.
vi. Supreme Court’s power of judicial review is NOT fully established following Marbury until Cooper v. Aaron in 1958.
j. Football Game Analogy:
i. Constitution defines the rules of the game; the game is politics, making decision for this country.
ii. The players are the factions in Congress who are trying to advance the ball to their opposite goals
iii. The REFEREES are the COURT, trying to enforce the rules that existed before the teams ever got onto the field.
1. This is fine as long as referees don’t pick a favorite or change the rules of the game after the game has started.
II. Congressional definition of federal judicial power
a. Supreme Court was notoriously weak initially
b. CHECKS on the court:
i. Constitutional Amendment (27 Amendments)
ii. Impeach Justices
iii. Limit the court’s jurisdiction (jurisdiction limiting)
iv. Senate can consent to appointments- appointments process
v. Set the size of the court-
1. Art III sect 1. FDR used this to his advantage with the court packing plan.
vi. Set the term of the court
c. Ex Parte McCardle (Withdrawal of jurisdiction during consideration of a case)
i. Facts: P was a Miss. newspaper editor in military custody for charges of publishing articles, during Reconstruction after Civil War. He brought this habeaus corpus proceeding under the Act of Congress of 1867 which authorized federal courts to grant hab corp to anyone restrained in violation of the Constitution and authorized appeals to the SC. The lower courts denied P’s claim, so he appealed to SC. After they heard the merits of the case, Congress passed Act of 1868 that said he couldn’t appeal to the SC and that it should be repealed.
1. History- this was a period of tension. Congress feared court might strike down Reconstruction Acts as unconstitutional so they removed jurisdiction; pretty bold move.
ii. Issue: Does congressional negation of previously granted jurisdiction preclude further consideration of matters brought to the SC based on that jurisdiction?
iii. Holding: Yes. SC’s jurisdiction is conferred by the Constitution subject to such exceptions and under such regulations as Congress shall make. Here Congress expressly removed jurisdiction previously granted. The court may not inquire into the motives of Congress; w/out jurisdiction, the Court cannot proceed to consider the case.
1. Art III Section 2 Clause 2: ANY EXCEPTIONS as Congress shall make. Congress has the power to regulate and limit the appellate jurisdiction of the SC at any time and at any stage of proceedings. Congress is simply saying they are making an exception; court agrees and says they’re making a positive exception.
2. This has potential to be abused; what if Congress said SC couldn’t ever hear any first amendment cases? If Congress tried to take away all their jurisdiction, SC could make constitutional argument that “exception” doesn’t bear that meaning. Also a separation of powers argument.
d. Felker v. Turpin: Court considered whether provisions of the 1996 anti-terrorism and effective death penalty act unconstitutionally curtailed the SC’s appellate jurisdiction. The act included provisions curtailing state prisoner’s second or successive applications for federal hab corp relief; the court found the law did not intend to repeal the Court’s hab corp power in “original” jurisdiction cases. Act is upheld. As long as court has original jurisdiction, its okay. GATE-KEEPING FUNCTION.
i. Use of Art III Section 2- Congress in the past few years has used this. Pledge Protection Act and Marriage Protection Act- Congress barred all federal courts from hearing cases that would overturn these acts.
ii. Can Congress take a whole question/subject area out of SC’s hands?
1. Slippery Slope Argument
2. Separation of Powers Argument
3. Clear Text of Art III section 2
4. But, state courts are left open; state court can hear a federal law challenge
III. Supreme Court authority to review state court judgments
a. Doctrine of adequate independent state ground- when US Supreme Court can even review SC of a particular state. (Foundation laid in following cases)
b. Martin v. Hunter’s Lessee (Constitutionality of the Judiciary Act)
i. Procedural Background: the case goes up the Virginia State court system. In 1810, Va. court of appeals rules in favor of Hunter. In Said land was effectively legally seized by the state. In 1813, the US SC reverses this, saying federal peace treaty supersedes any claim. Virginia then refuses to comply with ruling. Defendant appeals to US SC.
ii. Facts: Lord Fairfax owned huge amounts of land in Va, he was a British loyalist during the Revolutionary war. Virginia seized land from him, sold to Hunter. Fairfax’s heir then claimed the land. Dispute over this land.
iii. Rules: the judiciary act stated the US SC could hear state appeals when it denies constitutional claim, validity of federal treaty or federal statute.
1. MODERN Statute: 28 USC 1257- Current US SC jurisdiction over state supreme court; SC can review any decision that involves federal law or the US Constitution or interpretation of US treaty.
iv. Issue: Whether Va high court is correct saying that Sect 25 of Judiciary Act is unconstitutional. Did SC have authority to overturn decision of Va SC?
v. State of Virginia’s argument:
1. Framers put in the constitution expressly the areas where Supreme Court would have appellate jurisdiction and this case is not one of them.
2. The case could have been removed to federal court or originally brought in federal court, but instead it came in state court. Va felt state courts are general jurisdiction and US SC is for federal questions only; there is TWO TRACK court system and they shouldn’t over lap.
3. (At this time, people considered themselves more citizens of STATES, not federal government.)
vi. Holding: the decision stands; section 25 of Judiciary Act is constitutional. Reasoning:
1. Harmonious interpretation of constitution: you can have a two track system, but there must always be US SC consideration to ensure harmony of constitution. Must have US SC authority.
a. Arguments (see below, these are just basic arguments that can be made)-
i. Direct Constitutional Test
ii. Indirect Constitutional Test
iii. Constitutional Structure
iv. Original Intent- framers of that amendment when they wrote it;evidence of what they thought they were doing.
v. Constitutional Policy- makes sense for constitution to be construed this way to function well.
vi. Public Policy- this result is good policy for the country.
2. ARTICLE III: Conveys jurisdiction by type of CASE- defines if US SC gets jurisdiction, not the court that is arises from. Art III doesn’t say anything about where the cases come from.
3. The Constitution by its nature and in other places reduces state sovereignty, so fact this entrenches on state’s rights is not good argument.
4. Original intent argument- if there’s not uniformity of interpretation it would be bad.
5. Constitutional policy argument- the constitution is not a negotiated agreement between state government, it comes from “we the people” so it CAN trump state sovereignty.
6. Framers intent argument- some members of Constitutional Convention didn’t want there to be any lower federal courts at all; framers left open possibility there would be no lower courts “CONGRESS SHALL CREATE” so Congress has authority to create jurisdiction. Supports idea that SC can decide state court issues.
vii. Note: This along with Marbury are the final word on constitutional interpretation- Marbury said that SC decides interpretation only; rejects constitutional plurality among the STATES.

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3. Injury cannot rely on the action of 3rd party and not the government.
4. RULE: An association CAN have standing as long as its members meet requirements.
iv. Dissent: (Brennan) Thinks court is making plaintiff prove all elements of case before its proved in court. Standing is THRESHOLD issues; don’t have to prove all elements to have standing. Brennan thinks court is assuming facts alleged are wrong.
d. Lujan v. Defenders of Wildlife (Public interest not enough)
i. Facts: Sec of the Interior is interpreting Endangered Species Act. P’s are Defenders of Wildlife, an environmental group. D is the secretary. These actions will hurt the endangered species; they claim the action of gov’t agency will hurt members of this group. Programs are proposed that US gov’t will give $$ to foreign government for projects (like a damn) which could kill endangered species.
1. Attenuated chain of causality: secretary’s interpretation of act limits inter-agency consultation; that increases the likelihood project will go forward and the money will go overseas; that in turn increases the likelihood that endangered species will be hurt or suffer or have habitat destroyed; this means members of D of Wildlife won’t get to see the endangered species on their next trip abroad.
ii. Issue: May congress convert the public interest in proper administration of the laws into an individual right that all citizens may have standing to sue?
iii. Holding: NO. P’s do not have standing. Asserted intentions of Def of Wildlife to go over seas and see the species wasn’t specific enough; needed a manifestation of this intent to go – plane tickets, tradition. Some day not enough.
1. Citizen suit provision- if it gives everyone right to sue w/out standing its unconstitutional. Can’t give standing to people who don’t have particularized injury. Citizen suits are okay but must id a class of parties who have authority to bring these suits. Congress can’t create right for all citizens to sue regardless of injury. This one is too BROAD.
2. Separation of powers argument: if you allow Congress to sweep aside standing requirement, it would make the judiciary a watchdog of executive agencies.
iv. Scalia’s meaning on the 3 requirements for standing:
1. Injury requirement: must be ACTUAL or IMMINENT, not speculative or conjectural. Doesn’t have to actually have occurred, but must be imminent.
2. Causality: Causal connection- must be fairly traceable to the challenged action of defendant and not result of independent action of some other 3rd party. In this case, the chain of causality makes a lot of assumptions.
3. Redressability: if there’s causality problem there’s likely to be redress problem. “Likely”, not speculative.
a. Here, an order of the court would not prevent the foreign countries from killing the endangered species anyways. No guaranty injury wouldn’t happen.
v. Ex: lawsuit representing students from MO, OK who are suing the board of regents of Kansas education b/c KS passed law that says illegal aliens may have in state rates. Out of state students say not fair- is there standing?
1. District Court says there is no standing problem for violation of statute b/c injury doesn’t have to be money, it can be injury that they’re not treated fairly.
2. District Court says there is NO standing for federal immigration act claim; encouragement of aliens to live in US? No standing b/c its too attenuated.
3. Equal protection claim- still pending. Standing or not?
a. Injury is violation of right in of itself.
b. Causality is okay.
c. Resdressability is at issue- just b/c strike down law, doesn’t mean that students will get more money.
e. Raines v. Byrd: Line item veto act. Necessary to stop spending. Constitutionality challenged by two congressmen and four senators. Court holds they have NO standing. Rehnquist says its b/c its an institutional injury; this is not an injury to those particular members of Congress. They can’t demonstrate they were injured.
i. In Clinton v. New York, court found standing b/c it was an actual law.
THE POWERS OF CONGRESS
V. The sources and nature of the national legislative power
a. Federalist Papers 10:
i. FACTIONS- one problem all popular governments face. Factions are group of people w/ purposes that are inconsistent with the good of the community as a whole. Factions generally divided by geography. (Today factions are like special interest groups). Factions can’t be trusted to govern the entire country.
ii. Search for cure for factions: either control causes of faction or control effects of faction –
1. Causes of faction: restriction of freedom, and the unequal ability of people to acquire property. Don’t restrict liberty or right to acquire property. Defense of property rights is a strong theme in this era.
2. Control effects of faction not causes. Best form of government to do that is REPUBLIC, not democracy. In Republic, people choose representatives as opposed to everyone has a vote. Democracy is ideally suited for smaller societies.
iii. Why a republic and not a democracy:
1. A REPUBLIC is a system where you have representatives voting on the legislation. Not necessarily one person one vote. Representatives of the people.