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Constitutional Law I
University of California, Hastings School of Law
Little, Rory K.

Professor Little, Spring 2010
Role of the Supreme Court in the Constitution
Origins of the Constitution- From the Articles of Confederation
Functions of the Constitution

Creates and separates powers: Creates a national government and divides powers among the three branches. Division of powers among the branches was designed to create a system of checks and balances and lessen the possibility of tyrannical rule. Specifies the term of each office among the three branches, the qualifications to hold office, and the manner by which the office is to be filled.

Divides power between the state and federal government: Supremacy Clause in Article IV sets up a hierarchal relationship between the two levels of government and declares that the C and the laws of the US shall be the supreme law of the land. It limits the ability of states to impose burdens.

Protects individual liberties: Article I, sections 9 & 10, say neither federal nor state governments can enact an expost facto law or a bill of attainder. The absence of more expressed protections on individual rights can be attributed to the framers intentions on limiting the powers enough to adequately protect individual rights in the first place.

Framework (p. 29)- Creates a national government and divides power among the three branches. Article I- legislative power vested in Congress, Article II- executive power in the President, Article III- judicial power in the Supreme Court and lower courts that Congress creates. This is supposed to make checks and balances because in order to act at least two branches must agree. The C also serves to protect individual liberties. (Bill of Rights, Article I S9 and 10) Article III S2 ensures trial by jury of all crimes except impeachment. Article IV- PaIC.
· Plain Language
§ But, for example, what does Due Process mean in a plain language theory?
· Textualism/Plain Language
§ The text means what it says
§ If it’s clear, you only use the text
§ If it’s not clear, you use the text and look to dictionaries, etc.
· Structuralism
§ The way that different articles relate to each other gives us a logical meaning
§ Martin combines Article III and the supremacy clause
§ Theory of structure
· Article I, II, III each have separate functions
· Originalism
§ Scalia would say this is where you stop interpreting, if this doesn’t answer the problem, then the Constitution doesn’t answer the question and it’s up to the legislature, states, etc.
§ Does originalism extend beyond what the Constitutional convention said?
· Including contemporaneous acts, etc.
· Evolving Constitution/Original Intent to Evolve
§ Warren, Brennan
· Say that it doesn’t stop with originalism
· Brennan says the 8th Amendment
· Cruel & Unusual Punishment can evolve to include the death penalty
· Contemporaneanism
§ Breyer: The people wrote the document, and it is the people’s view today that controls the Constitution

Originalism- judges deciding constitutional issues should confine themselves to enforcing the norms that are state or clearly implicit in the written Constitution. Court should find a right to exist in the C only is it is expressly stated in the text or clearly intended by the framers. If the C is silent, then the Leg branch should decide the law. C should evolve only by amendment.
Arguments for Originalism- The very nature of interpreting a document requires that its meaning be limited to its specific text and its framers intentions. Also, this approach constrains the power of unelected judges in a democratic society. The political principle that governmental policymaking out to be subject to control by persons accountable to the electorate. Judicial review is a deviant institution because it permits unelected judges to overturn the American democracy. The Court is justified in invalidating govt decisions only when it is following values clearly stated in the text or intended by the framers.
Nonoriginalism- the courts should go beyond that set of references and enforce norms that cannot be discovered within the four corners of the document. It is OK for the Court to interpret the C to protect rights that are not expressly stated or clearly intended. C’s meaning can evolve by amendment and by interpretation.
Arguments for Nonoriginalism- 1) It is desirable to have the C evolve by interpretation and not by amendment. The amendment process is cumbersome and changes to the C are necessary to meet the needs of a changing society. Example- equal protection now means that government-mandated racial segregation is unacceptable, but there is strong evidence that the framers were okay with it. The drafters of the EPC didn’t intend on protecting women. Also, there isn’t an unambiguous, knowable framers’ intent that can be found to resolve constitutional questions. Instead, the process of determining the framer’s intents is affected by contemporary values. Nonoriginalism is the approach intended by the framers. The framers probably didn’t intend that their intent would govern later interpretations of the C.
Authority for Judicial Review- Article III did the following:
1) Created the federal judiciary system
2) Vests the judicial power in one supreme court and in such inferior courts as congress may form from time to time ordain and establish
3) Ensures the independence of federal judicial power by according all federal judges life tenure, so they can protect the C w/out worrying about reelection
4) Allocates judicial powers between the SC and lower federal courts, w SC having original jx over cases affecting ambassadors and other situations where a state shall be a party. It has appellate jx in all other cases, but subject to “such exceptions and under such regulations as Congress shall make.”
5) Trial of all crimes, except impeachment, shall be by jury
6) Treason shall consist only in “levying war” against the US or giving aid to comfort the enemy.
7) Defines federal judicial power in terms of nine categories of “cases” and “controversies” which fall into two provisions:
a. One authorizes federal courts to vindicate and enforce powers of the federal government, so all cases arising under the C, treaties, and laws of the U.S. as well as those cases where the U.S. is a party, or between its citizens and a foreigner.
b. Authorizes federal courts to serve an interstate umpiring function, resolving disputes between states.
Article III never expressly grants federal courts the power to review the constitutionality of federal or state laws or exclusive actions, but because of Marbury and Hunter’s Lessee, power of judicial review is established w/out being in the C.
Limits- Ripeness, mootness, standing, political question doctrine. Article III, S2 says that the judicial power shall extend to enumerated cases and controversies, and that this provision forbids the courts from invalidating legislative or executive action merely because it is unconstitutional. The courts may only rule in the context of a constitutional case. Congress also influences this because the SC has held that a federal court may only hear a matter when there is both constitutional and statutory authorization.
Abstention- prohibits a federal court from hearing a case if 1) A state law is unclear and could be interpreted to avoid the federal constitutional question or 2) state administrative regulatory plan would be disturbed by a federal court taking the case.
Marbury v. Madison (1803)- Established the authority for the judiciary to review the constitutionality of executive and legislative acts. C is silent as to whether the courts have this authority but the power has existed since Marbury. Congress cannot allow original jurisdiction beyond the situations enumerated in the C. The Judiciary Act of 1789 was struck down.
Martin v. Hunter’s Lessee(1816)- two conflicting claims to land in VA. Inheritance v. treaty. SC held that a federal treaty was controlling and upheld the inheritance. VA court said that SC lacked the authority to review state court decisions. SC granted review and articulated the SC’s authority to review state court judgments. Justice Story said that SC review is essential to ensure uniformity in the interpretation of federal law.
Cohens v. Virginia (1821)-brothers sold DC lotto tickets in VA. SC reaffirmed the constitutionality of section 25 of the Judiciary Act and the authority of the SC to review state court judgments. State courts can’t be trusted to adequately protect federal rights because judges are dependent for office and salary at the will of the legislature. Criminal defendants are allowed to seek SC review when they claim their conviction violated the C.
Representation-Reinforcement and Natural Law (61)- SC says that the C protects natural rights that a person possesses to own and keep property.
Calder v. Bull (1798)- Issue: New law forced probate court case denied inheritance to those designated as beneficiaries under a will. SC upheld constitutionality of the law. Government could neither violate the provisions of the C nor infringe rights that are part of the natural law.
Fletcher v. Peck(1810)- SC relied on natural law principles in declaring a state law unconstitutional. It was unconstitutional for Georgia to rescind a grant of land. The Court said that the legislative power is limited by both “the general principles of our political institutions” and “the words of the C.” Because title had been conveyed to innocent owners, the law rescinding the grant was deemed to unconstitutionally interfere with vested rights, and these rights were protected by the text of the C and by natural law.
Case or Controversy Requirement (78)- Article III authorizes a federal court system which provides that federal courts shall have judicial power over all “cases and controversies” This includes claims arising under the Constitution, laws or treatises of the U.S. 1) of admiralty and maritime jurisdiction; 2) in which the U.S. is a party; 3) Between two or more states; 4) Between a state and citizens of another state; 5) Between citizens of different states; 6) Between citizens of the same state claiming lands under grants of different states; 7) Between a state or citizens thereof and foreign states, citizens, or subjects.

Political Questions
Prohibits the judicial branch from hearing cases pertaining to 1) the Guaranty Clause (Art IV, S4), 2) challenges to the President’s foreign policy, 3) challenges to the impeachment or removal process, 4) challenges to partisan gerrymandering.
Justifications for the doctrine:
– It accords the federal judiciary the ability to avoid controversial questions and limits the courts’ role in a democratic society
– Allocates decisions to the branches of government that have superior expertise in particular areas, such as foreign policy where other branches of government will have greater information and expertise
– Federal courts’ self-interest disqualifies them from ruling on certain matters, especially in reviewing the process for ratifying constitutional amendments because amendments are the only way to overturn the SC’s constitutional interpretations.
– Separation of powers grounds as minimizing intrusion into the other branches of government.
Baker v. Carr (1962) p. 129- suit challenged an apportionment provision. HELD that the challenge of the apportionment presents no nonjusticiable “political question” and that the fact that they seek protection of a political right doesn’t mean it presents a political question. Apportionment cases can involve no federal constitutional right except one resting on the guaranty of a republican form of government, and that complaints based on that clause have been held to present political questions that are nonjusticiable. Article IV, S4 guarantees to the States a Republican Form of Government is not enforceable through the courts. Brennan wrote the opinion that said if discrimination were sufficiently shown, the right to relief under the EPC wouldn’t be diminished by the fact that the discrimination related to political rights. People’s votes have to be equal in weight, and that’s not a political question. Just because a case is fraught w politics doesn’t make it a political question case, and just bc a case deals w politics doesn’t mean it’s a political question.
Areas of controversy that are not subject to judicial review (p.133): Cases concerning war, foreign affairs, the structure and organization of the political institutions of the U.S., “Negro disfranchisement”, “abstract questions of political power, of sovereignty, or government.”
Basis for Finding a Political Question:
1) A “textually demonstrable commitment” of the issue to one of the political branches- Nixon v. U.S. (1993) Nixon’s challenge of a criminal conviction presented a non-justiciable political question that hinged on the word “try.” SC held that the use of the word “try” lacks sufficient precision to afford any judicially manageable standard of review.
2) The Political question doctrine and foreign affairs – Courts are deferential to the President and Congress in these cases. Maybe because the costs of error on their part is really high and their expertise and accountability is low in this area. Also tied to prudential concerns. Constitution is silent on many current foreign affairs issues.
3) Justiciable standards- the main ground on which the Court finds a case to involve a nonjusticiable political question is that there are no “judicially cognizable standards” by which to assess the claim of unconstitutionality. Court looks at the relevant constitutional provision and the P’s legal claim to see if there is criteria by which they can assess.
4) “Republican Form of Government” clause, Art 4, S4: Luther v. Borden (1849)-trespass do

n addition, the Court found that Maine was not a consenting party in the suit, and, therefore, the ruling of the Supreme Court of Maine was upheld. Justice Kennedy held that the United States Constitution provides immunity for nonconsenting states from suits filed by citizens of that state or any foreign state, noting that such immunity is often referred to as “Eleventh Amendment Immunity.” Such immunity, he continued, is necessary to maintain the state sovereignty that lies at the heart of federalism. However, according to the Alden Court, “sovereign immunity derives not from the Eleventh Amendment but from the structure of the original Constitution itself.”
oThe majority stated that the Supremacy Clause of the Constitution only applies to pieces of legislation that fit within its design. As such, any law passed by Congress seeking to subject states to such suits would violate the original, unamended Constitution. However, states do not have sovereign immunity if Congress is enforcing the Fourteenth Amendment.
oBasically, just backs up Seminole

Pennsylvania v. Union Gas Co. (1989)
o The SC held 5 to 4 that Congress may override the 11th Amendment and authorize suits against state governments pursuant to any of its constitutional powers, so long as the law in its text expressly authorizes such suits.
o In this case, the Court ruled that state governments could be sued pursuant to a federal environmental law, CERCLA, because Congress was clear in acting under the commerce clause in authorizing suits against state governments.

Seminole Tribe v. Florida, 1996
Held that Article One of the U.S. Constitution did not give the United States Congress the power to abrogate the sovereign immunity of the states that is further protected under the Eleventh Amendment. Such abrogation is permitted only where it is necessary to enforce the rights of citizens guaranteed under the Fourteenth Amendment. The case also held that the doctrine of Ex parte Young, which allows state officials to be sued in their individual capacity for prospective injunctive relief, was inapplicable under these circumstances, because any remedy was limited to the one that Congress had provided.

University of Alabama v. Garrett, 2003 Individuals tried to sue state agency for violation of ADA.
Ruled 5-4 that suits in federal court by state employees to recover money damages under Title I of the Americans with Disabilities Act are barred by the Eleventh Amendment. The case, University of Alabama v. Garrett, challenged the ADA’s constitutionality. The majority opinion makes clear that individuals with disabilities still have federal recourse against state employment discrimination. “Title I of the ADA still prescribes standards applicable to the states. Those standards can be enforced by the United States in actions for money damages, as well as by private individuals in actions for injunctive relief under Ex Parte Young.

Edelman v. Jordan, 1974
o Case that held that, because of the sovereign immunity recognized in the Eleventh Amendment, a federal court could not order a State to pay back funds unconstitutionally withheld from parties to whom they were due.
o Since the 1890 decision in Hans v. Louisiana, the Eleventh Amendment had been held to recognize the sovereign immunity of states from suits by their citizens. However, the 1908 case of Ex parte Young had allowed an exception, that citizens could seek injunctive relief against state officials to stop them from carrying out unconstitutional state policies.
o In this case, the Supreme Court would have to examine whether a federal court can require a state to restore money wrongfully withheld from citizens by the state, if the order to restore the funds is in the form of an injunction requiring the state to stop its wrongful possession of those funds.
· Concluded that private litigants could not avoid the bar of state sovereign immunity by manipulating the doctrine of Ex parte Young. No case examining state sovereign immunity had held that states could be required to repay funds that had wrongfully been withheld. In almost all those cases that had permitted retrospective recovery against the States, the State had not raised the issue of state sovereign immunity; the Court additionally overruled any cases in which the State had raised the issue and lost.
· The Court distinguished the payment that had been ordered in this case from expenses that a State might incidentally incur after an injunction is issued in order to comply; the costs of post-judgment compliance are ancillary, whereas the costs of making up for pre-judgment non-compliance were more like an award of damages to the plaintiff. Noting that there were no precedents squarely on point, the Court expressed disapproval of those precedents that hinted at allowing restoration of funds previously withheld.

Fitzpatrick v. Bitzer, 1976 States can be sued for violations of the 14th Am.

It came later than the 11th Am.
14th Am. suggests a relation between Fed and States that state sovereign immunity must yield to congressional judgment.

The Court, distinguished previous cases where individuals had attempted to sue the states for money damages (or the equivalent) — including Edelman v. Jordan — because those cases had not involved an express provision by Congress permitting such a lawsuit. The Court ruled that Congress has the power under the Fourteenth Amendment to abrogate sovereign immunity