Constitutional Law I Outline

 
Constitutional Law Stinneford Spring 2015
INTRODUCTION & CONSTITUTIONAL STRUCTURE OF GOV’T
Articles of Confederation
●      ALL about state rights – Only gives national gov’t powers that are expressly delegated
●      Unicameral legislature – only Congress – No executive or legislative branch
o      Members of Congress chosen by state legislatures (not the people)
●      National gov’t had a lot of power over foreign relations (same as today in Constitution)
o      Warfare & funding of war, minting of coins
●      Congress resolved the disputes regarding rights under Articles (b/c no fed. Ct under Articles)
o      Today → Judiciary decides disputes
●      No President under Articles – no one to force Congress to do anything
o      Presents problem of noncompliance by states
●      Nat’l gov’t = no power to tax
 
Founders established Constitution b/c:
●      Inability to deal with domestic unrest
o      Shay’s Rebellion: Massachusetts imposed new taxes & farms were being foreclosed on by courts so farmers protested → gov’t lacked funds to call up the militia to control the protest
●      Can’t run the country without revenue
 
Constitution  → starts w/  “We the people of the United States…”
●      more flexible on national gov’ts power – some power may be implied
●      established a divided gov’t
o      federalism: vertical division of power – prevents concentration of power in either nat’l or state gov’t
o      separation of powers: horizontal division of power
▪       checks & balances – power is disbursed but it overlaps as well to ensure no branch holds too much power
o      goal of divided gov’t: reduce tyranny
●      Bill of Rights – introduced to calm people who feared strong centralized govt (tyranny & oppression by the crown of England)
o      1st – freedom of speech; 2nd – right to bear arms; 3rd – quartering of soldiers (not relevant today)
o      4,5,6,7,8 = most important ones – deals with peoples rights when they are accused of a crime
●      Amendments added over time show trend toward:
                               1.            Democratization: members of the senate are now directly elected by the people
                               2.            Egalitarianism:  19th – eliminates gender discrimination;15th – eliminates racial discrimination
●      Article 1 – Congress → Lists express powers of Congress & can also do whatever is necessary & proper (implied powers)
o      Power to tax & pay debts (spending power) – “power of the purse”
▪       Spending must be for the “general welfare.”
▪       Conditions on spending must be stated unambiguously.
▪       Must be related to the federal interest in particular national projects or programs.
▪       Spending condition invalid if another constitutional provision provides an “independent bar.”
▪       Spending condition invalid if financial pressure is so strong it becomes “compulsion.”
o      Regulate naturalization, bankruptcy, creates lower federal courts
o      Elastic Clause – Power to make all laws which shall be ‘necessary and proper’ for carrying into execution the foregoing power  (Really broad – Congress has implied power)
●      Article 2 – Executive Branch   – Article 3 – Supreme Court
Fundamental Principles v. Express Constraint – Calder v. Bull
 
Judicial Review
(Art. III) Power of the Courts to strike down acts of Congress, Executive, & the states in the name of the Constitution
●      Power not found in the text of Constitution  
 
1.       MARBURY V. MADISON – established Judicial Review – Courts hold the power to review the constitutionality of acts of Congress. 
A.       Supremacy of Constitution:  SC ruled Congressional statute (Judiciary Act of 1789) trying to expand Supreme Court’s original jurisdiction is unconstitutional. 
1.       Court finds conflict with constitution which expressly grants SC appellate jurisdiction & a Congressional Act/statute (Judiciary Act of 1789) which said that the SC was to have original jurisdiction.
a.        In such cases, court has authority (&duty) to declare the statute unconstitutional & refuse to enforce it.
2.       Court & NOT legislature determines conflict with constitution
a.        “It is emphatically the province and duty of the judicial department to say what the law is”
b.       Denial of judicial review = Courts “must turn their eyes on the constitution, and see only the law.  This doctrine would subvert the very foundation of all written constitutions.” 
3.       Power to strike down laws is HUGE & with j. review, giving power to an undemocratic branch of government.
B.       Textual Arguments used to Support Judicial Review
1.       Judges take oath of office; swear to uphold laws of constitution
a.        Everyone in gov’t doesn't do this
2.       Written Constitution imposes limits on gov’t power that are meaningless without judicial enforcement
a.        Counter – Nothing in it give courts judicial review power.
3.       Fed. Q. Jurisdiction, “arising under clause” gives cts. power to decide cases under the constitution, therefore have an inherent role to decide constitutionality of the laws it applies
a.        Counter – Inference of judicial review, nowhere is it explicitly stated.
4.       Supremacy Clause, “in pursuant there of” makes Constitution Supreme Law of the land
a.        Counter – Does not imply judicial review power – why can’t Congress have this authority. 
5.       Courts authority to decide “cases” arising under Constitution implied the power to declare unconstitutional laws that come in conflict with the basic legal character
a.        Counter – comply with procedure of law making and NOT substantive power. 
C.       Arguments in favor of judicial review & the assumptions they rest on:
1.       Constitutional limit on legislative & executive Power → Constitution is Supreme 
2.       When conflicts in law, judges make decisions to avoid chaos
a.        Un-elected body is best umpire.
3.       If statute is void, someone needs to say so. – Cts are best b/c they are unbiased, not have to worry about politics. (Need to separate legal & political issues in decision-making.)
4.       Preventing Tyranny of Majority – Cts. Are un- biased.
D.      Criticism of Marbury
1.       Not in Constitution that courts have power to decide constitutionality of statutes
2.       Counter majoritarian – huge power given to those that don’t represent the people.
a.        When act of Congress invalidated, it contradicts the will of the people since they elected Congress
3.       Anti-democratic – Judges appointed for life so can basically say whatever they want & they can’t be voted out
4.       Judicial exclusivity – Is this an exclusive role?
5.       No Original Intent, No text, & No precedent provides for this power!!
 
MARBURY V. MADISON (1803): Marbury was a last minute judicial appointment of outgoing President Adams. & Marbury’s commission was not delivered to him before Adams left office; Jefferson, declined to deliver the commission. 
●      Conflict between: Constitution (Article III, §2) which expressly restricted the types of cases the SC could hear in its original jurisdiction  and  Judiciary Act of 1789 – which said that the SC was to have original jurisdiction in such cases
●      Court (Chief Justice Marshall)- unanimous opinion → ruled that the federal judiciary may review the constitutionality of actions taken by the legislative & executive branches the nat’l gov’t.  If those actions are found to be in violation of the Constitution, federal courts may refuse to honor or enforce them. 
●      Does Marbury have a right to his commission? → Yes, Marbury had a right to his once it was signed & sealed
●      Is there a remedy? → Yes, “where there is a right there is a remedy”
●      Is the proper remedy a writ of mandamus from THIS court? – Depends on:
o      The nature of the writ – To seek mandamus, the person must have no other specific & legal remedy.
▪       There is NO OTHER remedy available, and thus writ of mandamus would be appropriate here
o      The Power of the Court → THIS court cannot issue a writ of mandamus b/c SC doesn’t have original Jx
▪       Article 3: says when Ct can hear a case in original Jx, if situation is not listed then it is appellate Jx.
●      Court narrowly interprets the jurisdiction clause of Article III & finds the list of original jurisdiction issues to be exhaustive
●      An act that is contrary to the Constitution is not valid.
o      Rationale:  (1) Nature of Constitutions – intended to establish the powers/obligations the gov’t has
                     (2) Supremacy Clause (Art. 6) – Constitution is the Supreme Law of the Land
     (3) Judicial Review (most controversial) – “It is emphatically the province & duty of the judicial dept to
           say what the law it” → Constitution vests job of interpreting laws in the courts.
 
FEDERALISM
A.      The United States is a Federal Union of States
a.       The Const. framework was set up to ameliorate the problems associated with a weak central government as was the case under the Articles of Confederation
b.       Another Goal was to preserve an important role for the states in the new federalist system
c.        Justifications for Federalism
                                                               i.      Liberty:  Vertical Separation of the federal and state govt, with the horizontal separation between the branches of the fed govt, helps protect the rights of people by avoiding concentration of power.
                                                             ii.      National Welfare:
1.       By allocating certain duties, such as national defense, to the federal government, such duties are more effectively fulfilled
2.       Also several states are allowed to function as “laboratories of experimentation,” promoting more responsive govt.
d.       Articles I & II of the Const. enumerate the powers the federal government is allowed to wield, while Amendment X expressly reserves to the states those powers not enumerated in the Const. to the federal Govt.
e.       Limit on State Powers
                                                               i.      A state law is valid if it has a legitimate purpose, which purpose is consistent with the police power to regulate, and it does not violate a federal law on the subject. (Cooley)
                                                              ii.      A state law placing width and weight limitations on trucks operating on state highways does not impose an unconstitutional burden on interstate commerce so as to violate the United States Constitution’s (Constitution) Commerce Clause. (South Carolina)
f.         Dormant Commerce Clause
                                                               i.      Where a state regulates non-discriminatorily for the achievement of a legitimate local purpose and thereby affects interstate commerce, the state action is constitutional unless the burdens of such regulation on interstate commerce are clearly excessive relative to the putative local benefits of it. (City of Philadelphia)
                                                              ii.      In the absence of conflicting legislation by Congress, where a state law governing a matter of local concern comes into conflict with the Commerce Clause’s overriding requirement of a national “common market,” the Court is confronted with the task of bringing about an accommodation of the competing national and local interests.(Hunt)
                                                            iii.      To show that a law is discriminatory as applied you have to show both disparate impact and discriminatory (protectionist) intent, but the intent can be inferred from the impact.
 
MCCULLOCH V. MARYLAND (Necessary & Proper Clause) 1819: : In response to Congress’ charter of the Second Bank of the United States, Maryland legislature passed a statute imposing an annual tax on all banks in the state that were not chartered by the state legislature. James McCulloch, the cashier of the Maryland branch, refused to pay the tax and was successfully sued by the state and proceeded to appeal to the Supreme Court. 
A.       Federal power is supreme within its sphere
a.        Marshall called these the powers of “the sword and purse”
Congress has the power to:
(1)     Lay and Collect Taxes
(2)     Borrow Money
(3)     Regulate Commerce
(4)     Declare and Conduct war
(5)     Raise and support armies and navies
b.       Congress may make “all laws which shall be NECESSARY AND PROPER for carrying into execution the foregoing [enumerated] powers, and all other powers vested by this Constitution, in the Government of the United States, or in any department thereof.”  Article I §8
c.        When Congress is granted the power to achieve various “ends” it is also authorized to create a “means.”
(1)     Incorporation of Bank was the “means”
d.       The purpose of the Congressional action (“end”) must be legitimate and within the scope of the Const.
B.       Federal Law consistent with the constitution reign supreme over the laws of the states
a.        A power to create implies a power to preserve
b.       The power to tax a lawfully created federal entity is power to destroy the entity.  Such a power may NOT be exercised by the states
c.        Where there is conflict between lawful federal and state powers, the federal power is supreme and shall control.
                                                               i.      If statute can be interpreted in two different ways, it must be interpreted in a way that doesn’t usurp state’s powers unless statute makes clear that its intention is to explicitly have Congress do so (Gregory)
                                                              ii.       It is unconstitutional for Congress to compel state legislatures to adopt laws or state agencies to adopt regulations. Congress may set standards that state and local governments must meet and thereby preempt state and local actions. (New York v. U.S.)
                                                            iii.      Cannot commandeer executive officials to implement a federal mandate. Law also violates separation of powers (Printz)
d.       Whe