Constitutional Law
Fall 2010
I. Introduction to the Constitution and Judicial Review
A. What is the Constitution?
1. U.S. Constitution
The Basics:
· 7 articles, 27 amendments: originally ratified in 1788 by nine states.
· Articles of confederation was inadequate; Congress lacked funds, states did not respond to tax; no power to regulate interstate commerce.
· Leaders met to discuss new Constitution to give federal government more power; three independent branches—executive, legislative, and judicial; a system of checks and balances; considerable disagreement over the extent of the powers of the new government.
Significant Amendments
· Constitution itself contained important protections of individual liberty, including writ of habeas corpus (writ to bring person before court), prohibition of ex post facto laws, and Privileges and Immunity clauses.
· Bill of Rights: The first 10 amendments were limitations on federal power.
· Civil War Amendments: problem stemming from conquest over slavery; 13th amend abolished slavery (in force 1865); 1866 Civil Rights Act prohibit discrimination by states, and 14th amendment adopted to overcome constitutional objections to Act.
But Really, What Is It?
· Natural answer is that this is a legal text.
· It’s also a written text. Compare to some countries that have unwritten constitutions (in Marbury, Court makes a big deal out of this).
· Big mistake among lawyers is to interpret it like it’s a statute, but the Constititon is more than just any legal text. In many ways, it’s very atypical:
o It’s pretty short—7,000 words. Compare to CA constitution, which is a pretty long document.
o Primarily oriented toward setting out a plan of government—focuses on structure of government, who serves, limitations of powers, etc. When lay people think about Constitution, they think about rights (i.e. equal protection, free speech) rather than structure, but that’s what it’s really about. The amendments sometimes define individual rights more explicitly, but even there there’s a lot of structural information.
o Lots of provisions very open-ended, unlike statute wrt room for interpretation.
o Very enduring legal text—been with us since 1789 and amended very infrequently. Only amended 27 times. This is a written text that has survived generations—remained authoritative, legitimate, etc. How do they speak to us today? How do we know what they encompass when our society today is so completely different from the one the framers lived in? Especially since there’s no authoritative interpetation.
Ways to interpret the document:
· A type of social contract—relates to the rules that will govern society—powers we delegate, rights we reserve. This is appealing in the Lockean sense, but there are problems. In social contract theory, we care about what is written on the paper and the intent. W/r/t the constitution, these are very complicated questions. These are “dead hand problems.”
o Plus, why should all these dead people’s beliefs control today? In the 18th century, society disenfranchised women, minorities, poor people, etc, in ways that we no longer do. Moreover, the framers lived before tv, iPhones, complex global economies, multinational corporations, etc. And wouldn’t we get in trouble if we wrote a constract with so little specificity?
o Parts of the Constitution name things that aren’t social contract ideals—liberty, etc. These are values that likely existed ahead of time. The Constitution was merely codifying these pre-existing agreements.
· A statement of public values—representation of some underlying set of principles that are deeper or broader than any particular moment in political history. We feel it in our bones in ways the constitition doesn’t even begin to articulate. Maybe it needs to be a document that is meaningful to the average person on the street. It’s thus meaningful because it contains a statement of things we all recognize (privacy, speech, etc).
o But if this is the case, why is there so much heated disagreement over what the constitution means? Think desegregation, same sex marriage, etc. So if the constitution is subject to disagreement, maybe it’s supposed to facilitate a conversation about what our fundamental values are.
o But even if that is the case, there’s still a problem—what about the parts of the constitution that are obviously compromised? This kind of self conscious political calculation rubs against this conception (i.e. 3/5 compromise). How are we supposed to view a document that contains what people today would regard as frankly unjust compromises?
· Maybe its generality and indeterminacy when stating overarching public values is a key source of its enduring legitimacy.
2. Three Examples: Healthcare Reform, Same Sex Marriage, Birthright Citizenship
· Healthcare Reform: imposes a higher degree of regulation of healthcare than we’ve had before in the interest of providing healthcare to everyone. However, for some people healthcare reform will reduce privacy/liberty (e.g. mandate that many of the uninsured must purchase insurance). A federal court allowed a challenge to the mandate to go forward because no case has addressed how far Congress’s authorization under the Commerce Clause extends in this instance. What the Commerce Clause means, how we should construe it, is at issue in the healthcare debate.
o What does the text of the constitution resolve, and what doesn’t it? The Commerce Clause appears to regulate healthcare (after all, it’s 1/8 of our economy). But when you look more closely, you realize that the Commerce Clause doesn’t expicitly discuss the states trading among each other. Moreover, the individual mandate in healthcare reform isn’t really regulating a commerical transaction—if anything, it’s regulating the absence of one—the choice not to purchase health insurance.
o Question: Why should we utilize this textualist framework? The framers certainly didn’t know we were going to have a service-based economy, etc, but they may well have anticipated that we were going to have a very different economy two+ centuries down the line. Perhaps we should look at the constitution as a document designed to change/adapt over time.
· Same Sex Marriage: Federal court recently struck down Proposition 8. Mentions fundamental right to marry. Irrational classification on the basis of sexual orientation. Fails to pass rational basis review. None of these things is explicitly mentioned in the constitution, so it’s a matter of interpretation.
o Similar questions arise here. What does “equal protection of the laws” mean? What’s the obligation of protection, and how do we think about who’s entitled to that protection? The 14th Amendment was designed to extend rights to African Americans—probably weren’t thinking about LGBT people or women, for example.
o But if we think of the constitution as a statement of values, we could conceive of the 14th amendment as a statement of values re opporession (i.e., that we’re opposed to it). So couldn’t we extend that statement of values to encompass respect for the rights of women and LGBT people?
· Birthright Citizenship: definition in Bill of Rights was a critical way of overruling Dred Scott decision. Currently a movement to reverse this so children of undocumented immigrants are not citizens of the US. A lot of people focus on the language “subject to the jurisdiction thereof”—argue that undocumented immigrants are not subject to the jurisdiction of the US. On the other side, people are like “Ummm, duh. Of course they’re subject to US jurisdictions.”
o Again, if the constitution is a statement of public values, then doesn’t the existence of this in the constitution reflect something about our society?
B. The Founding
1. Origins of the Constitution
Declaration of Independence
· Not technically a legal text, but we can learn a lot by reading it. Words like “inalienable rights” seem to have some legal import.
· Also, who is the Declaration Independence addressing, or is it just an abstract statement? “Let candid facts be submitted to the world”—so is the world the intended audience, or is this a suggestion that there is a higher set of laws that forms some sort of natural law?
Articles of Confederation
· Adopted shortly after the Revolution in order to ensure some unification of the states regarding common foreign & domestic problems, but the overriding understanding was that the states would remain sovereign.
o A number of powers were, however, conferred on “the United States in Congress assembled.” These powers included “the sole and exclusive right and power of determining on peace and war; the authority to resolve disputes between the states; the power to regulate “the alloy and value of coin struck by their own authority, or by that of the respective states”; and the authority to control dealings with indian tribes, to establish or regulate post offices, and to appoint naval and other offices in federal service.”
o By modern standards, there were conspicuous gaps. Two of the most important powers of the modern national government were missing altogether: the power to tax and the power to regulate commerce. Moreover, two of the three branches of the national government (judiciary, legislature) were absent. Of course, there was no Bill of Rights.
o As experience under the Articles accumulated, some leading political figures became dissatisfied with the performance of the government it created (see Madison’s memo beginning on page 9).
· What were the framers thinking when they framed the Articles of Confederation? Now we look at the Articles as a prelude to the Constitution, doomed to failure, incredibly flawed. The Articles established only one branch of government—only a legislature. That might make sense, in that the colonies had just freed themselves from a king and didn’t want to impose another one on themselves.
o Plus, the legislature was very weak—no power to tax, etc. This comes from great respect framers had for individual states. But then things began to fall apart—states would form side deals, etc. This caused the framers to wonder if maybe they needed to do something in addition to what was included in the Articles, decided to meet to amend the Articles.
o You might say that the framers were going beyond their authority to draft the Constitution, given that there were procedures for altering the Articles. Abrams thinks this was intentional—to signal a break with the federal-state relationship under the Articles. Things were going to be different.
o Experience of government under the Articles informed framing of the constitution. Thus, tension between functionally operative part of constitution and more formal elements demonstrates the Constitution’s constant flow between formalism and functionalism.
Arguments Over the New Constitution
· Republican theory (Jeffersonian) relied on civic virtue—the willingness of citizens to subordinate their private interests to the general good. Self-rule was a matter not of pursuing self interest, or of aggregating preferences, but instead of selecting the values that ought to control public and private life. Dialogue and discussion among the citizenry were critical features in the government process.
o Good citizenship meant putting your private interest to the side and determining what was good for society as a whole. Jefferson thought people were capable of this if they (1) had access to education and (2) form of government—town hall style democracy where people could discuss matters of public concern. Smallness and homogeneity were very important in this conception of face-to-face democracy.
o Distrust of large central government: Jeffersonians believed that that which is closer to you is better government.
o In general Jeffersonians were more in favor of egalitarian economic policies, were spokesmen for farmers, working men, etc. This was very attractive in a small, agraian nation such as the US was at the time of the framing.
· The Cons
m obtaining authority over the national government in general.
Madisonian Answer to Protecting Rights/Public Interest
· Structure of the government itself is what protects individual rights. Thought of the judiciary as the least dangerous branch—not equal in power to legislative or executive branch. Thus, didn’t really think of it as safeguard of rights.
o After Marbury, we have come to think of the judiciary as the safeguard of individual rights, even as we have embraced the Madisonian view of the Constitution. We think of it as particularly important for the court to intervene when the institutional checks designed by Madison and his colleagues don’t function very well.
o Thus, in the same sex marriage controversy and healthcare reform debate, we have born witness to two different types of processes. Healthcare reform underwent a long, drawn out legislative process over months/years. Compare this to same sex marriage in CA, which was voted down by popular vote.
o Question: in which of these does government seem to be operating in way Madison devised and thus not warrant Ct. intervention? And which of these represents a breakdown in the process and therefore warrants court intervention?
§ The healthcare debate looks much more Madisonian. You could argue Prop 8 was Jeffersonian—but there certainly wasn’t homogeneity. So maybe it was proper for Judge Walker to intervene there.
§ You could argue it the other way, too—the filibuster meant Obama needed a 60-person majority in the Senate, and Ben Nelson got to insert all sorts of provisions important to Nebraska into the legislation. Moreover, you could argue that Prop 8 accurately reflects the public will.
C. Judicial Review, Judicial Supremacy, Judicial Sovereignty
Resources for Constitutional Interpretation
· Constitutional text
· Purpose (of written const; of particular provisions; framers’ intent)
o Can interpret in different ways. McCullough was very driven by purposive analysis.—what was the goal behind creating these powers?
o Narrower purposive questions, too. E.g. what were the framers thinking?
o Think of what Marshall said about the national bank—framers in 1st congress, wouldn’t undermine their own purpose.
· Constitutional structure
o Can think of it as arrangement of institutions constitution contemplates or reflects in order to ensure separation of powers, federalism, etc. Structural approach embodied in McCullough involved reasonings from those features of structure. If you have a constitution with these features of structure, what can we infer?
· Consequences of a particular rule/decision
o What would be the effect of resolving a case in a particular way? How much should courts take into account the societal effects of a decision?
· Precedent (judicial or other)
o In early cases also comprehends what other branches thought (as opposed to just previous cases). E.g. Congress voted for it twice, states did similar things…
· Societal values
o Tricky for us now because we haven’t yet gone down this road very far.
o Over time, there are emerged increasingly strong sociopolitical norms about how many of these cases should be involved.
1. U.S. Constitution Article III
Source and Scope of Power
· Article III, Section 1 of the Constitution provides that the federal judicial power “shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Thus, the Constitution actually creates only one court—SCOTUS—and leaves it up to Congress to establish other courts.
o Article III does not require Congress to establish any lower federal courts nor grant then full jurisdiction to decide all matters within the federal judicial power.
· Article III does not grant the federal courts power to hear every type of case; rather it specifies the types of cases over which the federal courts have jurisdiction. Specifically, Article III, Section 2 limits the jurisdiction of federal courts to cases:
o Arising under the Constitution, and act of Congress, or a federal treaty (i.e., cases whose disposition depends on construction of one of these)
o In which the US is a party
o Between a state and citizens of another state
o Between citizens of different states (diversity)
2. Marbury v. Madison (1803) – Origin of Judicial Review
Antecedents to Marbury v. Madison
· Madisonians became the Federalists, Jeffersonians became Republicans. Their rivalries continued—huge debate over the Alien and Sedition Act.
· Controversy had its roots in first election—person with most votes became president, second place became vice president. Federalists had been in power for 18 years (Washington, Adams).
o It becomes clear that Adams is going to lose his bid for reelection.
