Select Page

Constitutional Law I
University of California, Hastings School of Law
Paul, Joel Richard

Paul, Fall 2003

A.) Historical
1. Articles of Conf: adopted to unify states, but w/understanding that each state retained sovereignty. Created only legislative branch, but no pwr to tax or regulate commerce. Probs: interstate jealousies, disunity in foreign relations, need for revenue, no standing military, economic instability, social unrest, states’ failure to fulfill obligations.
2. Trewitt v. Wheaton – butcher refused to accept RI paper $, fined w/o jury trial.
a. SC – fine w/o jury violated state cx
b. Another state, MA, tries to pay off debt w/tax revenue instead of print $, protecting wealth but hurt farmers who couldn’t pay, led to Shay’s Rebellion.
c. Led to Cx’l Convention
3. Federalist (Hamilton) – should concentrate pwr at the nat’l level. Vest more pwr into 1 person – the president.
a. Factions are primary prob of govt. B/c factions are less able to command maj where there’s great diversity of interest over large geographical area, hetergenous republics less susceptible to oppression by factions than small homogenous communities. Federalist no. 10 (Madison)
b. To contl abuses, separate govt into 3 independent branches, each w/checks upon the others. Federalist No. 51 (Madison).
4. Anti-Federalist (Jefferson) – embraced republican principle of civic virtue – people are fundamentally good. Pwr is fundamentally corrupting. Thus, should govern at local level. Give pwr back to people, to local gov’t. Decentralization imp b/c civic virtue flourishes best in small homogenous communities.

1.) Judicial Review

5. Origins: nothing in Cx expressly gives SC pwr to rule on cxality of acts of Congress or state statutes, nor pwr to review state ct decisions. Art III merely creates SC and extends judicial pwr to “all Cases, in Law and Equity, arising under this Cx, the Laws of the US, and Treaties made. . .under their authority.” § 2 spells out cases where SC has original jx and that in all other cases, Ct has app jx.
6. Judiciary Act of 1789: Congress created lower fed cts, but did not give them genl jx in civil cases arising under fed law. State cts had jx. SC authorized to hear 3 types of cases on appeal, involving state ct rejection of claims made under fed law.
7. Review of Acts of Congress: authority of SC to review acts of Congress not in Cx. In early days, dispute re propriety of this doctrine.
a. Hamilton: Federalist No. 78 argues that judiciary is least pwrful of branches of govt, neither controls pubic funds nor military. Independence of judiciary allows it to guard Cx and individual rights from improper actions of other branches. Judicial decisions must be governed by Cx rather than by any contrary statute.
b. Jefferson: (Anti-Federalist) each branch responsible to determine cxality of own actions, judges should not be ultimate arbiters of all cx’l questions. But recognized that cts would face cx’l question more often than other branches.
c. Judiciary Act of 1789: Congress also gave SC pwr to issue writs of mandamus to US officials.
Lawrence v. Texas (US SC June 2003)
F: Police observed Lawrence engaging in sexual act w/another man. Arrested under TX statute criminalizing “deviate sexual intercourse w/another individual of the same sex.” Lawrence challenge arrest. TX law, unlike Georgia, does single out homosexuals.
PH: trial de novo in Harris Cty Crim Ct, petitioners challenged statute as violation of Equal Prot Clause of 14th Amend & of TX Cx, which were rejected. Petitioners entered plea of nolo contendere, fined. TX Ct of App rejected cont’l args & affirmed convictions based on Bowers v. Hardwick.
Dissent (Scalia): Should try to be consistent, stare decisis. Ct was willing to strictly adhere to Roe v. Wade even though highly criticized. Precedent now result-oriented expedient. There are state laws which are sustainable only b/c of Bowers (bigamy, incest, prostitution, etc.). If don’t want to adhere to stare decisis, must show Bowers wrongly decided and TX statute uncx’l. 14th Amend does allow the State to deprive its citizens of liberty so long as due process of law. Sodomy not fundamental right deeply rooted in tradition & majority opinion doesn’t address. Majority says no longstanding anti-homosexual laws, but sodomy (whether same sex or diff sex) was criminalized. Majority should not make up cx’l entitlements b/c some States eliminate criminal sanction of behavior nor should it have looked at foreign nations. Governing majority in a state viewing practice as immoral = sufficient govt’l interest.
● TX law singled out homosexuals. Most people thought SC would decide case on basis of equal protection but the ct decides on basis of privacy rights.
● Issue: does this law violate substantive due process, which protects our right to use contraceptives, possibly assisted suicide, etc.
● Ct finds that it is a violation of privacy. Overturns Bowers.
● What persuades ct that it’s wrong? If you look at history more closely, it’s more richly textured. Actually, there were periods when homosexuality was not illegal, prohibitions have been recent.
● Change of attitude is relevant in how to interpret Cx.
Cx is fixed/entrenched but b/c things change, need to allow certain degree of change. Look at original intention of framers. Eg. President is commander in chief of navy, army. What about the airforce. Make him commander in chief of airforce too.
● Who should decide?
– SC or local (State elected reps or by federally elected representatives)
– In a liberal democracy you leave some substantive decisions up to an individual. But Scalia says you should let states decide what’s immoral, not right for SC to place its morals on state.

Rule of law: must be a separation from the one who makes the law & the one who apples it. Need uniformity.
– Different outcome when phrase question differently: “is there a guarantee of homosexual sodomy?” v. “do adults have a right to have consensual sex in their own home?”
Scalia: Kennedy never answered the question of whether or not there is a fundamental ri

mission is signed/sealed it becomes his vested prop right.

Ripeness doctrine: requires cts to decide onhly issues which involve a real dispute and an actual injury, and not merely potential or speculative harm.
Standing: status of being qualified to assert legal rights in ct b/c one has a sufficient stake in the outcome of the controversy
1.) Legal Issue – Do the parents have standing? A party must have standing in order to allow them to come into ct. Derived from Art III, § 2: these cases and controversies. Emerged in the 1930s.
a. Ct was routinely striking down legislation that were intended to protect workers saying they were an interference w/the economy that was not permissible.
b. Cases were brought often times on behalf of employers who would say their employees really want to wk 100 hr wks.
c. Campaign to try to restrain the ct’s jx, to keep them out of legislation intended to regulate the economy & wkrs.
d. 3 Requirements
i. Injury in Fact – particularized, concrete specific injury suffered by that individual. Cannot be a generalized grievance, such as gov’t is wasting money on a war.
ii. Directly traceable to D’s actions (causation b/w harm suffered and Ds actions)
iii. Likely Remedy – there must be a remedy that will remedy/redress the situation
e. The above are the cx’l minimum. The ct has added more hurdles, Prudential Concerns:
i. Own claim – a person can’t bring a claim on behalf of another person, can’t litigate another’s rights
ii. No generalized grievance – don’t allow taxpayer suits (if that many people were injured they could organize and affect legislation); must be identifiable interests
iii. Within the Zone of Interests protected by the law – cx’l or statutory provision
f. 3rd party Standing: branch of case law that’s an exception to the prudential requirements (cx’l reqs still req’d)
i. in some specific instances where P has suffered an injury in fact, P may file an action on behalf of himself and another whose interests are congruent.
ii. Very rare.
g. All of these concerns (cx’l and prudential) are respecting the separation of powers. To prevent interference w/other branches of gov’t.
h. Purposes Served by Cx’l Minimum & Prudential Concerns:
i. Judicial Restraint – cts not to get too involved in political process
ii. Restrict caseload
Judicial branch = private law disputes. Public disputes = legislature.