Constitutional Law
Coenen
Fall 2015
I. History of the Constitution:
A. America Before the Constitution (i.e. Articles of Confederation)
A.Republican principles, but many problems
B. No federal executive or central government
C. Congress was powerless
D.States had all the power: they fought, minted their own currencies, negotiated trade agreements w/ foreign nations, taxed products from other states
E. States having all the power resulted in
a. economy being poor / colonies in debt
b. tyranny by the majority / oppressing minority groups rights
B. The Philadelphia Convention
A.Small states feared their influence would be lost / would be outvoted
B. States worried that the Constitution would make the centralized government too powerful
C. Would not ratify the Constitution without the inclusion of the Bill of Rights
C. Constitution:
A.Gave more power to the federal govât while allowing the states to maintain power as well
B. Channels power to federal government wider range of interest and sub-interest groups (makes it more difficult for oppressive groups to form)
C. Doesnât work unless there is a lot of power invested in this central government and shifted away from the statesâmajor theme of the constitution: âvestingâ powers of the central government
D.Articles:
a. Article 1: Defines the power of Congress
b. Article 2: Defines the power of the President / Executive Branch
c. Article 3: Defines the power of the Federal Courts
E. Checks and Balances: responsibilities of the govât are divided
Ă Separation of Powers
a. Three branches of government and each branch has a distinctive identityâŠ
i. The work they do
ii. How they are selected are different (this causes the powers to actually separate)
Ă Framers were most concerned about abuse by the legislative branch; therefore the following checks were put in place:
a. Veto power (by President)
b. Bicameralism (Congress split into 2 Houses: HoR & Senate)
c. Federalism (Federal Govât shares powers with States)
d. Judicial review (by Supreme Court)
II. Judicial Review/Judicial Jurisdiction
A. Checklist:
1. Does Judicial Review apply?
a. Does issue arise in a case or controversy before the court or is it in the posture of an advisory opinion?
b. Is the court confronted by a potential conflict between a law or executive action and the US Constitution?
Ă If yes, there is a case or controversy that Article III of the Constitution permits courts to resolve?
c. Could a state court decide that the case on state law grounds, rather than applying the US Constitution?
Ă if yes, federal court might abstain from deciding the case (state courts can interpret their own state constitution as to provide individuals with greater rights than are provided for under the US Constitution)
2. What limitations apply to courtâs judicial review? A variety of practical considerations limit the power of the federal courts, particularly the US Supreme Court, to exercise judicial review
1. Can courts exercise prudential self-restraint and refuse to hear a case?
Ă Courts use prudential limits to refuse to hear a case even though technical standing requirements have been met (especially true with 3rd party standing)
Ă Prudential limits, however, are minimized when Congress authorizes standing
2. Are there congressional limitations on the Supreme Court Authority
Ă The courtâs original jurisdiction is limited and congress can make excpetions to the courtâs appellate jurisdiction
Ă Courts are split on the scope of this limit
EX: McCardle: court upheld congressâs attempt to deprive the court of jurisdiction while case was pending on appeal
EX: Klein: court struck down a jurisdiction stripping statute for going too far
3. What is the precedential effect of a denial of certiorari?
Ă Since writ of certiorari is discretionary, a denial has no precedential effect
Ă For all practical purposes, a summary denial of an appeal also has little if any precedential value
4. Will court avoid judicial review?
Ă Justices usually state that they have a duty to avoid deciding constitutional issues unnecessarily (e.g. might adopt a construction of an ambiguous statute or other law that avoids constitutional difficulties)
3. Will Court sometimes refuse to hear cases based on the political question doctrine?
Ă Political question doctrine is a well-established limitation the scope of federal power. Look for issues textually committed to another branch of government or one that lacks judicially manageable standards of review. (Baker v. Carr)
4. Will court refuse to hear cases brought prematurely as not yet ripe?
Yesâif brought too soon, issues are not sufficiently sharpened for decision and are speculative
5. Will courts refuse to hear cases or controversies that are brought after circumstances render a decision in the case moot?
Ă YesâUNLESS issue is âcapable of repetition yet evading reviewâ
6. In determining whether plaintiff has standing to bring suit, is there both an injury-in-fact and causation?
Ă Injury-in-fact can be pecuniary, a violation of constitutional rights or even aesthetic, but must be personal and not a generalized grievance
Ă Causation means the issue is redressable by the court and plaintiff can benefit
7. Is the plaintiff asserting third-party standing?
Ă if a plaintiff is basing a claim on the rights of another, courts will generally avoid granting standing.
Ă the exception is when there is a nexus between the rights pf the first parties and third parties, such that the third parties will represent the rights of the first parties fairly
8. Can a petitioner claim tax payer standing?
Ă the court has carved out a limited exception for tax payer standing in their capacity as citizens; taxpayer has to show tax exceeds a specific provision of the constitution
9. Can a petitioner claim citizen standing?
Ă as a general rule, citizens cannot claim standing in their capacity as citizensâŠwould count as general grievances which persons cannot base a lawsuit
10. Can a legislator claim congressional standing?
Ă court has generally refused to grant such standing bc legislators lack a personal stake in the outcome
B. Judicial Review of Legislature:
Marbury v. Madison (1803)
Provides foundational principle of Judicial Review; Supreme Court can review acts of the legislative/executive branch
o Adams (president at the time) makes appointment to many including Marbury/signs; Marshall (secretary of state) stamps approval; not delivered in time therefore Marbury sues Secretary of State
o COA: property rightâinterest that Marbury has in paper that essentially represents the job that in a sense has been stolen from him by not being delivered
o Remedy sought: writ of mandamus
Ă Is this proper? Yes, recognizes that in some cases a writ against executive branch isnât proper because executive branch is given certain discretion (this is a political questionânot a legal question, not answerable for thisâpolitical questions offer a sense of immunity)
Ă Secretary of state can be a subject to a writ of mandamus, but when he is acting as the âorganâ of the president his actions are not legally, but political
Counter Majoritarian Difficulty in a representative democracy (Republic)âjudicial review is not consistent with those principles (elected officials would be more representative of the majority, not the insulated/appointed officials)
Ă Judicial Review exists as a check on the leg/exec. branches
What check is there on the âcheckersâ?
1. Impeachment (Article III Section 1): charged with impeachable offenses but no one has actually been convicted on the charges; it is difficult to do bc it requires a super majority vote
2. Judicial Selection: judges are appointed by president with review of Senate who are both politically accountable individuals (before the fact check)
3. After the fact check (Article V): Dickerson v. United States: Congress has the power to amend the Constitution in order to overturn Constitutional interpretation by Supreme Court but not by statuteâby Constitutional Amendment (difficult to doâŠrequires 2/3 of House and Senate and people must agree) *However, Congress may supersede judicially created rules that are not required by the Constitution
4. Congress controls the budget/calendar of the court (Article III Section 2)
5. Power of Congress to make exceptions to jurisdiction of the Supreme Courtâs appellate jurisdiction (Article III Section 2)
Ă Ex: Congress is considering a bill that SC will not have appellate jurisdiction involving school prayer: is this possible?
o Problem: involves a first amendment right
o Notwithstanding this problem it is constitutional bcâŠmust point to a specific power that allows congress to do this: âCongress can make exceptions to the jurisdiction of the Courtâ Ex Parte McCardle: (pg. 31)
o Arguments in favor despite potential loophole: reasoning of Leseeâimportance of the principle of uniformity
o Is the proposal of this amendment consistent with Cooper v. Aaron? (pg. 21) [case stands for: state officials have to be bound by Brown v. Board ruling even though they were not parties to the case bc Constitution is the supreme law of the land; an d the S.Câs interpretation of 14th Amendment is binding on the states due to Article VI âSupremacy Clauseâ; no legislator can war against Constitution without violating their oath to support it]
Congress has ability to take away Supreme Court jurisdiction on the matter through the âexceptions clauseâ, but there are 2 ways to limit Congressâs power to pass such laws
Ă Internal constraints: (parts of Article III: vests in Court highest judicial powerâcongress cannot take away jurisdiction to the point where it interferes with the essential function of the court)
Ă External constraints: jurisdictional limits that discriminate against certain people or groups of people; would violate principles OUTSIDE of Article III ex: Equal Protection Clause (ex: âonly women cannot appeal to the S.C.â)
Ex: if congress denied courtâs power to review school prayer cases it would violate the Free Exercise Clause of the
First Amendment
