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Constitutional Law II
University of Illinois School of Law
Meyer, David D.

Constitutional Law (Con Law)
 I.        Constitutional law trumps other forms of law; it is the supreme law
A.  What gives the constitution power over other forms of law?
                           i.        Supremacy clause – Makes the constitution the law of the land, contextual directive
                         ii.        Federal constitution is supreme because that is the nature of that written document, it provides the groundwork for all other laws and creates the national government. it is the rules of the games as far as government goes.
II.        The constitution is distinct
A.  Really hard to change, can only be done through the amendment process
                           i.        Most amendments dont get anywhere because of article 5                    
                         ii.        The long hard process is intended to provide ballast to the constitution
                       iii.        Requires a super majority at two different levels, 2/3 to trigger the process in the congress, and win ratification at 3/4 of the states
B.    Anti-democratic to change the constitution (#2)
                           i.        Meant to protect both against the tyranny by the majority – threats of mob rule
                         ii.        Meant to protect against tyranny by a minority rule; ie: a king. 
a.    Does that by establishing popular control of gov’t in the hands of the people
III.        3 mechanisms in the constitution to protect against the threats to individual liberties (in #2. above)
A.  Separation of powers – Limits the government’s ability to act by dividing the federal govt. – legislative, executive and judicial.
                           i.        Horizontal separation of power
a.    Article 1 – power of congress; Article 2 – executive power and; Article 3 – judicial power
b.    Article 3 – Two branches of government have to agree to get things done, and sometimes all three branches are needed
B.    Federalism – Relationship between national gov’t and the state gov’t
                           i.        Vertical separation of power
                         ii.        Constitution takes care to preserve primary authority with state govt by amendment 10 – specifies that power not allocated to Fed government through the constitution by implication are given to the states and the people. The constitution has limited power which can only be found in the document itself.
                       iii.        In everyday aspects the state law is primary authority
C.    Individual rights and liberties – express protection of individual rights and liberties through various provision of the constitution
                           i.        In the original main body of the con, there were some but not many express protections of individual rights
1. ie: power of slaveholders against democratic or govt interference
D.  The fundamental connection between all three mechanisms emphasizes the framers understanding that all three were interconnected and similar.
 I.        Marbury v. Madison
A.  Marbury was a justice of the peace, through the appointment of an outgoing president john adams and incoming president thomas jefferson
                           i.        There was a bitter dispute in the election of jefferson over adams. 3 way deadlock between them and aaron burr. burr and adams loses, adams and the federalists on the last day are working to pad appointments to their federalist friends before adams leaves. john marshall who was sec of state and chief justice to SCOTUS signs marbury’s appointment but it was not delivered, so when jefferson came to office he freezes the appointment since it was incomplete.
                         ii.        Marbury pissed about not being allowed into the job and files petition with SCOTUS for madison to deliver the commission, writ of mandamus. mandamus is a petition for a court order to overcome the defiance of an government officer.
B.   Three issues Marshall cites in addressing the action
                           i.        Was marbury appointed correctly? – Was delivery the final act to make the commission effective, or did it become effective earlier? what point?
i.        Marshall ruled it became effective when the seal of the US was affixed to it by the sec of state, not when it was delivered
ii.      Logic of court is that since transportation was not reliable at the time, delivery is not essential for commission.
iii.    Marshall rules Marbury was legally appointed.
                         ii.        Was the withholding of the commission by Madison unlawful?
1. The courts opinion suggest some actions are only politically examinable while others would be judicially examinable, and would be capable of judicial review
2. Turns on the nature of the act – discretionary political act or, an act arising from a mandatory duty which then can be ruled on by the court               
a.  Discretionary political act – only remedy for this sort of act would only be reviewable by the political process (election), no judicial action is called for
3. Court rules the act in the case was a mandatory duty; the new administrations obstruction was unlawful, and within the court’s power to pass judgment
                       iii.        Was Marbury entitled to mandamus to remedy the withholding of the appointment?
1. Court asks if mandamus is appropriate for this scenario?
a.  Court answers yes, mandamus is only where a govt officer is defying a clear legal duty. Highly specific scenario and problem, mandamus was the right remedy but it was the wrong court to grant the remedy. 
ii.      SCOTUS then looks to determine if they have jurisdiction to grant mandamus. Debatable if statute grants mandamus to SCOTUS in original proceedings, marbury could have lost on statutory grounds
iii.    Instead, Marshall gives a generous reading of the statute to expand the SCOTUS power to help Marbury
                       iv.        Marbury has all the necessary legal action for his side but the Constitution messes things up.
a.    Marshall says that article 3 section 2 of the con defines the original jurisdiction of the court in a way that doesn’t include Marbury’s mandamus – mandamus statute is not constructed correctly and tries to expand jurisdictional power for SCOTUS and so should be repealed on constitutional grounds
1. Marshall rules that statutory law is inferior to the constitution, so the con rules
C.    Three clues to support his conclusion that the statute in question should be dissolved, since it goes against the constitution
a.    Article 3 grant of power – power exercised in questions of the constitution
b.    Language directed to courts
c.    Judges are required to take an oath to preserve the cons
                         ii.        Based on the above three reasons, the federal courts therefore have the implied power to pass judgment on legislative acts and executive actions to strike down those which are in conflict with the constitution
D.  Judicial Review – the review of the constitutionality of legislation by both federal and state courts
                           i.        Do you agree with Marshall that judicial review is necessary and flows from the constitution for the reason he provides?
                         ii.        Does the judiciary have sole power over the cons? checks to the judiciary’s con power of review
1. Executive branch can ignore the courts order
2. Legislature can add amendments to the cons
                       iii.        Marshall is given the opportunity to expand the judiciary power but in the case, he can be shown to modestly decline it, but in fact establishes the power of the court to rule on the constitution. 
1. There is a question of whether the courts have the power of judicial review – there is debate
                       iv.        Marbury is seen as being brilliant because it was a favorable ruling to Madison but was like a trojan horse as it established the power of judicial review
                         v.        Marbury conferred on the court the awesome power of striking down popular acts by executive and congress as being against the constitution
E.   Impact of Marbury
a.    Differentiates between political and judicial issues, and
b.    Decision to give the judiciary right decide constitutional issues without the obedience of the other branches – courts are insulated from popular accountability
                         ii.        what if there was no judicial review and the courts did not have final say on the con?
F.    Idea of popular constitutionalism
                           i.        Since courts are insulated from popular accountability, there should be more democratic say in issues of the constitution by the political process – this is because SCOTUS is perceived as being more stingy on liberty
                         ii.        Positive is that it engages people and makes people accountable for their decision? – On the other hand it can be messy and incoherent
                       iii.        Unlikely that the idea of popular constitutionalism will affect SCOTUS’s view on judicial review
 I.        Limitations on judicial review
II.        Unresolved issue of con law as to the extent congress can limit judicial review
                           i.        Congress can suspend the courts calendar to slow down the process
                         ii.        Article 2 – Marbury relies on the exceptions clause, so there is tradition of congress to utilize control over the appellate jurisdiction of SCOTUS
1. Congress also has the expressed power to control the ability of other fed courts to hear matters as well
2. Recognizes some congressional power over the courts but leaves unclear exactly how broad that power is
a.  Whether the congress has power to strip the federal court of jurisdiction over certain constitutional related cases
B.   Is it within congress’s power to make exceptions and vacate the fed court power to make a decision on the constitutional right to gay marriage for example?
                           i.        Opponents of gay marriage have proposed that congress enact legislation to strip fed court to federally recognize gay marriage
                         ii.        Is that a legitimate check on judicial power by the legislature according to article 3?
a.    Don’t know, guidance that SCOTUS have given on the scope of what powers the exceptions clause gives congress to make those kind of moves have been very murky
1. SCOTUS case decisions give opposing conclusions – in one case SCOTUS recognized the ability of congress to strip SCOTUS jurisdiction to hear a case congress didn’t want them to hear, but in another case they go the other way that congress could not deprive the court of jurisdiction on the basis that the congress was attempting to impose on the courts a substantive rule of decision on the meaning of the constitution by forcing them to rule on a specific constitutional claim.
i.        Impossible to reconcile these two cases to each other, but it illustrates that there is no neat rule to control fed jurisdiction – no bright line rule
ii.      The cases though, acknowledge that congress has the power to check the judiciary with the exceptions clause but the majority of scholars say that congress should not have the power to make exceptions when doing so vitiates other cons rights
a.  Exception clause must be exercised consistent with other cons guarantees; congress might be able to determine what kind of judicial review a person might get but could not strip away all means of a party to receive judicial review
iii.    Congress has the power to limit judicial review in some manner (exception clause) but we don’t know how broad that power is
 I.        Limits on Justiciability – Article 3 (Judicial Power)
A. Not external; limits not imposed by other branches of gov’t on the courts, but are internally recognized by the court in limiting their own power to rule on cases
1. Prohibition against advisory opinions
2. Standing
3. Ripeness
4. Mootness
5. Political question
                         ii.        All arise form article 3, that the court use their power only in cases and controversies
II.        Prohibition Against Advisory Opinions
A. Dispute must be in a concrete dispute where the parties are adversarial, and the courts resolution would matter or make a difference so it wouldn’t just be giving moral satisfaction
                           i.        Comes back from the beginning of the fed courts, when jefferson was rebuffed from seeking advice from SCOTUS
B.   Article 3 is in contrast to state courts, which can provide advisory opinions to the other branches of state gov’t
                           i.        ie: Massachusetts supreme court advising their legislature on how to write a law on gay marriage that they wouldn’t strike down
C.   SCOTUS has described article 3 rule as an element of separation of powers, limit on judiciary’s rule that it not get into political judgments and maintain strict independence
a.    Question of if doing so leads to inefficient governing that is more uncooperative, and if it is a good/bad thing? – Not necessarily clear
                         ii.        Federal courts are allowed to issue declaratory judgments where the ruling is just a declaration
a.    It looks a bit like a advisory opinion but it has to be in a case of controversy with parties whom are adversarial, and the declaration would resolve or help them in a concrete way. There is a fine line between an advisory opinion and declaratory judgment.
 I.        Wolves hypo
A.  An individual is upset about a government policy allowing for the destruction of certain wolves and certain areas. He is outraged by the policy being carried out by the executive branch, so he then sues the government for the regulation being unconsti

t in instances where congress has aligned itself with the courts to authorize that judicial role through statute but that is a case of two branches working rather than one asserting itself over the others
 I.        Ripeness and Mootness
                           i.        Both reflect a common concern which is looking at the timing of a legal claim, whether the timing of the suit is correct
II.        Ripeness – Requirement that the injury has occurred or will imminently occur
A.  Seeks to separate matters that are premature for review if the injury is speculative or may never happen
                           i.        Overlaps with the injury requirement in the doctrine of standing – but ripeness asks a specific question of when a party can seek pre-enforcement review of a statute or regulation?
                         ii.        Usually this is occurs when someone is accused of violating it. The declaratory judgment act is to give people pre-enforcement ability to review, so they wouldn’t have to break the law to find out. As a result, ripeness is essentially the question of if the court is allowed to grant pre-enforcement review? – takes form of declaratory judgment if successful.
III.        Mootness – Something happens to end the case from being a live controversy. Could be settlement, death of criminal defendant, etc.
A.  Mootness stems from article 3’s prohibition from issuing advisory opinions – if the case is moot, then the decision would in essence be an advisory opinion
a.    Your neighbor is offensively barbecuing and there are no jurisdiction questions, so you sue him and during the lawsuit he dies – does the case goes away?
i.        Yes, moot.
b.    Criminal def. challenges constitutionality of his detention, he is convicted and serves his time and is released before the case ends, moot?
i.        Yes, but there are the three exceptions.
B.    Another case was a suit against the LAPD over chokeholds. Black guy pulled over for broken taillight, and there is a scuffle and the cop puts guy into a chokehold and gives him a ticket. Documented as happening frequently in LA.
                           i.        Guy was suing for an injunction barring LAPD from using chokeholds, and SCOTUS ruled there was no standing because there was insufficient reason to think he would be in another chokehold by the LAPD – insufficient interest. SCOTUS decision was controversial.
                         ii.        Court said there was standing to seek damages but no standing to seek an injunction on future conduct. If an injunction were ruled on, everyone in Los Angeles could apply it against the LAPD.
a.    Suggests that the court might not say that it was not moot, just because of the possibility of chokehold occurring. Would be too speculative to support the legal claim
                       iii.        SCOTUS finds that lack of repetition doesn’t automatically moot the case – collateral effects of a criminal conviction that will follow you around, can still count as an injury that makes it a case
C.    3 Exceptions for Mootness
1. Wrongs capable of repetition but evading review
i.        If the duration of injury is short and likely to occur to the plaintiff again, and always so short that it would evade review.
ii.      Moore v. Ogilvie – challenges to petitions on state election ballots, even though the election occurred before the trial, court gives exception.
iii.    Roe v. Wade – pregnant woman wanting abortion had given birth before the suit against TX law outlawing abortion, had completed, court gives exception.
iv.    Defunis v. Odegaard – Law school applicant denied admission due to affirmative action, and will be close to graduation from that law school before the trial is completed, and the law school says it will graduate him one way or the other. Court rules moot and no exception to allow for a ruling is granted or needed.
2. Voluntary Cessation
i.        Exception to moot if defendant voluntarily ceases alleged improper behavior but could pick it back up at any time. Only if there is no reasonable chance that they could resume the behavior is it then moot.
ii.      Friends of the Earth v. Laidlaw Environmental Services
iii.    Defendant has the burden of proof to show that the improper conduct could not reasonably be expected to happen again, in order to moot the suit
iv.    In a suit to bring compliance, the burden is on the plaintiff to show that the behavior could reasonably happen again, in order not to moot
v.      mootness doctrine serves to preserve judicial resources
3. Class Action Suits
i.        Class action suits can continue even if the named plaintiff’s claim becomes moot. This is because the named plaintiffs still have a legal interest and therefore there is still a live controversy.
b.    is it legitimate for the court to use the exceptions to pick and choose which cases they will hear? or are they exceeding their own constitutional authority?
1.maybe the court’s pragmatism in making these exceptions may reveal that the rules are not so constitutionally based either – maybe the rules are made up, which forces us to consider the legitimacy of not just the exceptions but also of the rules that limit judicial power
2.if court has flexibility to decide mootness type cases flexibly then that implies they would be able to do so for further topics and constitutional issues – due process, equal protection
B.   political question doctrine
a.    nixon case – judge nixon fed district judge challenging constitutionality of the removal from office