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Constitutional Law I
University of Alabama School of Law
Krotoszynski, Ronald J.





1. Overview/Const. Argue

A. Overview

1. Forming Constitutional Arguments

a. START with the text of the constitution itself AND what’s NOT in the constitution

i. textualism has a democratic character to it- the text is available to all

ii. Originalist (what meant at enactment controls) v. Living Const (interp. text allows for meaning evolution)

iii. COUNTER- the text of the const. does not always specifically/explicitly cover all possible issues

b. THEN look at precedents, “general propositions do not decide concrete cases” (Justice Oliver Wendell Holmes)

i. Rare that courts completely overrule/reverse/do a full 180

1. REAS- provides some certainty/stability in the law, links current decisions to the past

ex. b/c John Jay, court sustained congress’ immigration power- plenary/not subject other clauses like due process

ii. stare decisis/ “adverse possession” of Const. Interp.- if operated certain way for long time reflects Const.?

iii. COUNTER- what about the long standing practices of black/women oppression?

c. FINALLY look at consistent historical practice

i. if the congress has done something consistently for a long time, good argument that is constitutional

d. SOMETIMES try to argue general fairness, but difficult to do successfully

i. Consequential Arg.- consider decision’s likely outcome, ex. what if Cong NOT able form nat. bank? (Mculloch)

1. COUNTER- can involve court in speculation as to political reactions (political question doctrine?)

ii. Ethical Arg.- Const. invited moral arg. w/ terms like “liberty” and “equal protection”

1. COUNTER- incorporate judges personal sentiments, people view morals differently- its their right to do so

1a. Canon of Statutory Interpretation

1. GR1- never read a statute in a way that renders a portion of the statute or another irrelevant/ineffectual

2. GR2- Something enacted later has control over what was in acted earlier

3. GR3- Specific trumps general

2. Const. Analysis Approaches

a. “living constitution”/Flexible Interpretation-

i. “Const. that attempt anticipate all contingencies “never be understood by public” (Marshall, Mculloch v. MA)

1. would be insufficiently flexible to adapt to changing circumstances (Marshall, Mculloch)

ii. “constitution intended endure for ages to come & be adapted for various crisis of human affairs” (Marshall, Id.)

iii. “text provides a valve for which contemporary values can be intermingled w/ Const.” (Philip Bobbit)

iv. Marshall in (Marbury) rejects originalism by declaring law written mostly by framers as unconstitutional

b. Originalist- focus on text, original intent or understanding provides the most natural meaning

i. Intent of the Framers- deference b/c founding generation was unique group in time heightened political awareness

ii. REAS2- confines the discretion allowed of unelected judges, gives Const. some rigor/won’t be stretched too far

iii. COUNTER- how know orig. intent for sure? (no Const. Conven. minutes), ex. not all framers for Federalist Papers

1. 2 different worlds- technology has created issues that founding generation could not of thought up

2. Stephen Breyer- “should the Const. bind contemporary people to specific choices of those 200 years dead?

c. Process-based (John Hart Ely)- protecting fair & democratic decision making process > producing certain outcomes

i. COUNTER- (Laurence Tribe)- this elevates only 1 Const. value and ignores other outcome values in Const.

3. Amendment Process- Art. V (President NOT involved in)

a. Propose Option 1: 2/3 of both houses (all but 21st amend) and then state legislatures (21st amend) OR

b. Propose Option 2: 2/3 of states call for a Constitutional Convention

i. REAS- to be able to reign in out of control congresses (ex. able to bypass congress for term limits )

ii. Open Questions- limits on the convention? every state get one vote? would a judge rule on (political question)?

1. what if a sitting member of congress tried to get elected to a constitutional congress? (incompatibility clause)

2. What if call Const. for 1 purpose and and come back w/ other amendment (

a. Congress view- need 37 states calling on same issue, b/c every state tried call at some point on diff. issues

3. when does a call cease to be a call? can a state recall its “call”?

c. Ratification- by 3/4 of state’s legislature OR Conv. (congress says states NOT call back its ratification afterwards)

i. President has no role (NO VETO) in the amendment process

ii. what is the timeliness on ratification- is the 27th amendment valid? (200 years the “same” congress? Kroto- NO)

1. Judicial not rule on REAS- if court did something affect amend process, be affecting process meant check them

d. Unamendable- no amendments can affect Art. 1 §9-1,4 (direct tax of slaves, taxes must be proportional)

i. “Equal suffrage” also can’t amend or change the level of representation for states

4. Other Const. Rules

a. Art 6- no religious test for office, REAS- no bill of rights w/ original const., but wanted to make sure this was in there

b. Art 6- Treason- requires 2 witnesses, or confession in open court

c. Judicial Clause- all courts must enforce the laws of the constitution

5. Article 3- sets up the judiciary structure and power, life tenure during “good behavior”, not have salary adjusted

a. Vesting clause- power must be vested SOMEWHERE in federal system (Ex Parte McCardle) (Martin v. Hunters)

requires that a federal judge in a federal court SOMEWHERE exercise the full power of the court

McCardle was given jurisdiction in the district and appellate courts but not the SC

ii. Congress has obligation vest ALL power in judiciary, “judicial power shall extend”? (Story, Martin v. Hunter’s Lessee)

iii. OR Congress has power to LIMIT the juris. of courts since can create them? (Sheldon v. Sill)

b. Art. III silent on SC composition, function, qualifications for or organization (ex. Roosevelt court packing scheme)

c. Ordain & Establish Clause- “in such inferior courts as the congress may from time to time ordain and establish”

6. Role of Courts in Policy Making (Caulder v. Bull)

a. Justice Chase- there are natural, immutable principles known to all (“if a law is against all reason then it is no law at all”

i. “if a law transgresses nature rights, courts do not have to uphold it EVEN if no enumerated power to do so”

ii. Kroto- this is “looking at your secret inner voice”)

b. Justice Irondale- Courts enforce express rights and have no business dreaming up new ones

i. “natural law has no role in deciding a law”

7. Severability- if can make something constitutional by severing the unconstitutional portion than should do so

a. Congress routinely put severability clause in legislation- “if any part of this law is found to be constitutional, keep this”

2. Judicial Review/Juris

A. Judicial Review

1. GR1- SC power (implied from Art. 6 §2) review acts, and if “repugnant” to Const, VOID them (Marbury v. Madison)

a. Courts have the final say on the meaning of the Constitution and if Congress’ laws abide by it

i. “Is it emphatically the province & duty of the judicial Dept. to say what the law is” (Marbury)

ii. Textual Argue for Judicial Review- Art III extends the “judicial power” to :all cases arising under the constitution”

Originalist COUNTER- judicial review not explicit in Const, and this passage could just be extending jurisdiction

b. Jurisdocracy- 9 elected people have FINAL say on our laws BUT congress could do anything to court they want

correct state law

3. Original v. Appellate Jurisdiction of the Supreme Court- Art. III §2-2 (Marbury v. Madison)

a. Original GR1- when ambassador, public ministers, and state a party (floor for orig., these cases HAVE to be SC)

i. since original jurisdiction mandated in these cases, can NOT be affected by Congress (Supremacy clause)

b. Appellate GR2- ALL others ONLY APPELLATE, interpreted Marshall (§2-2 is ceiling AND floor, Marbury v.Madison)

i. Exceptions Clause (Art. III §2.2)- “with such exceptions and under such regulations as the congress shall make”

ii. ex. for court issue mandamus in (Marbury) to deliver commission, must be shown be appellate act otherwise can’t

iii. to issue Mandamus: seeker entitled to AND no other specific legal remedy available AND court has power to grant

C. Justiciability Doctrines/”Cases & Controversies”

1. GR1- SC NOT issue Advisory Opinions, only hear “cases and controversies” Art. III §2 (GW treaty letter- 1793)

a. Senators can NOT ask the SC upfront if pending legislation would be constitutional

i. REAS- courts need concrete facts to correctly identify and decide issues of law, “unreal/sterilized atmosphere”

b. gov losing pension case in Art III court NOT be reviewed by Sec. of War (exec branch) (Hayburn’s Case)

i. if something can be reviewed by the executive branch then would not be a case or controvery, NOT SC reviewable

2. Article III (Constitutional/TRUE) Standing- (to be “Cases & Controversies” Need:…)

a. Injury In Fact (IIF)- P has direct personal interest, “actual or imminent” injury (ex. paid Tax, NOT future intention, Scalia-Lujan)

i. GR1- organizations CAN sue on behalf of members WHEN close financial association w/ members, affect their economic interest (Craig v. Bowen)

ii. GR2- Congress can NOT create cause of action for “procedural injury”/injury to all (Lujan v. Defenders)

1. CANT have just anyone sue gov. agency for not enforcing Endagangered Species act overseas (Lujan v. Defenders)

a. Congress tried to “force the courthouse doors open” and SC says no

b. “just being a taxpayer does NOT give you standing” (Lujan v. Defenders)

2. ranchers or farmers who are going to have their water cut off where not allowed to challenge (Vinity v. Spear).

3. REAS- under Art. II §1, §3, basically taken president’s vested power execute laws to anyone living

4. REAS2- Art. II §3- Executive Branch, NOT judicial, has responsibility. of seeing laws faithfully executed

iii. (Lyons) serial criminal NOT get injunction against LAPD using chokeholds in arrests, argued would be arrested later

1. COUNTER who is the someone who would have standing to challenge this, a cop?

2. Kroto- WRONGly decided, there is a public interest for this case to be decided, police wanted to get rid of case

b. Traceability- injury has to be traceable to the legal compliant/Df “caused” the harm

c. Redressability- favorable court ruling has to be able to redress the injury

d. GR- Art. III Standing NOT waivable (Scalia in Lujan), VERY flexible/manupable- if losing on merits argue no standing