Constitutional Law outline Professor Chen, Fall 2014
THE CONSTITUTION
Creates and limits governmental power at the same time
Establishes and limits power to 3 branches (separation of powers)
Establishes relationship b/w federal government and state governments (federalism – states gave up some power in return for strong, centralized government)
Protect individual rights (reason for first 2 goals of Const.)
Important parts (Articles) of Const.
Article I – creates bicameral legislature
Article II – creates presidency and allocates powers to Pres.
Article III – creates judiciary
THE FEDERAL JUDICIAL POWER
What do courts rely on in deciding cases?
Precedent
Policy
Legislative Intent
Text of statute (if statute involved)
SUP. CT. HAS JUDICIAL REVIEW (power from Marbury v. Madison)
Justice Marshall's arguments for Sup. Ct.'s judicial review power in Marbury:
Const. written so judicial review is necessary
Duty of judge to interpret law
Oath of Office to support Const.
Judicial power given to Ct. by Const. to decide ALL cases arising under Const.
Supremacy Clause – Const. and all laws thereof are supreme law of land
SUP. CT. CAN REVIEW STATE COURT JUDGMENTS
Came out of Martin v. Hunter's Lessee
Martin granted Sup. Ct. authority to review state court judgments because:
Const. gave Cong. power to create lower federal courts, but if Cong. chose not to, Sup. Ct. would be out of business unless it could review state court rulings
State attachments, prejudices, jealousies, and interests could obstruct and/or control administration of justice
Need Sup. Ct. review to ensure uniformity when interpreting federal law
Many state judges dependent for office and for salary on will of legislature (judges can be swayed) (from Cohens v. Virginia)
FEFDERAL CTS. HAVE POWER TO REVIEW CONSTITUTIONALITY OF STATE LAWS
Cooper v. Aaron – Const. is supreme law of the land
Federal judiciary is supreme in exposition of law of Const.
CRITICISMS OF JUDICIAL REVIEW
Potentially dangerous b/c of very thing that puts the court in the best position to decide – complete independence and complete autonomy and lack of accountability
Repudiation of democratic process b/c judicial review of government official's actions is review, by an unelected group of people, of elected officials or officials appointed by elected people
Ct. isn't accountable
Control of dead hand of Const. (original intent of Const. didn't allow women and minorities to participate politically – is that what we want to go by?)
Judges have a lot of discretion in interpreting Const.
Const. is broad and can be interpreted in different ways
CONSTRAINTS ON JUDICIAL POWER
WHAT JUDGES USE TO INTERPRET CONST.
text
precedent
evidence of intent of drafters
policy arguments
then need theory
THEORIES OF INTERPRETING CONST.
ORIGINALISM
Views
Const. should only evolve by amendment
If Const. is silent, leave to legislature
Judges should enforce norms that are stated or clearly implicit in Const.
Non-originalism empowers unelected judges to replace decisions made by elected officials
Positive values
consistency/stability – clear expectations
efficiency
limits discretion – keeps judges from deciding policy issues
Negative values
No consideration of societal norms, which are constantly changing (framers wouldn't have known about changes)
How to use
Set of documents – maybe federalist papers – but they're not objective
Even if knew intent of every framer – they were divided
Methodologically – it may be impossible to carry off
Types of originalism
textualism: most constrained b/c doesn't go beyond document (four corners approach)
modified originalism: looks to text and to conceptual – general interest of framers, not specific intent
structuralism: interpret Const. in ways that enhance separation of power and protects states' individualism (more relevant to question of powers than to individual rights)
traditionalism: interpret Const. in light o
o do w/what courts do; rely on adversary system to present evidence, arguments, etc., b/c there is a real concrete dispute that matters
Constitutional vs. Prudential requirements
Constitutional: doctrines that are result of court's interpretation of Art. III of Const.
Prudential: although Const. permits federal adjudication, Ct. decided that in certain instances wise policy militates against judicial review
CONGRESS, BY STATUTE, MAY OVERRIDE PRUDENTIAL, BUT NOT CONSTITUTIONAL, RESTRICTIONS
Policies underlying justiciability requirements
Closely tied to separation of powers
Conserve judicial resources – allowing federal courts to focus attention on matters most deserving of review
Intended to improve judicial decision-making by providing federal courts w/concrete controversies best suited for judicial resolution
Promote fairness, esp. to individuals who aren't litigants before court
Points of contention regarding doctrines
What should be content of justiciability doctrines to achieve balance b/w restraint and review
Should doctrines be flexible, or should rules be clear and
predictable as possible (methodology)
7. PROHIBITION AGAINST ADVISORY OPINIONS – OVER-ARCHING DOCTRINE – AT THE CORE OF ARTICLE III – ENCOMPASSES ALL OTHER DOCTRINES
a. Criteria for case to be justiciable and NOT advisory opinion
i. Must be actual dispute b/w adverse litigants (Ct. won't give advice to Cong. or Pres.)
ii. Must be substantial likelihood that a federal court decision in favor of claimant will bring about some change or have some effect
