Constitutional Law I OUTLINE
Fall 2012 – Professor Friedman
I. THE JUDICIARY
A. The Power to Review Acts of Congress
Marbury v. Madison (1803) – Established USC has the right to review ACTS of CONGRESS. When the Constitution – the nation’s highest law – conflicts with an act of the legislature, the USC may declare the act of Congress invalid. This established the USC’s power of judicial review
o Narrow: Courts apply the law w/in jurisdictional boundaries, understanding that Constitution is supreme.
o Broad: Authoritative review: Courts are the supreme interpreters of the law, including the Constitution.
B. Supreme Court Authority to Review State Court Judgments; Supremacy Clause
Martin v. Hunter’s Lessee (1816) – Established USC has the right to review judgments of STATE courts, not only actions of a co-equal branch of government (see Marbury). Affirmed the USC’s power to override state courts in order to secure a uniform system of law and fulfill the mandate of the Art. 3 Supremacy Clause
· Art. 3 of the Constitution, which left creation & jurisdiction of lower Fed. Courts up to Congress (permitting federal questions to arise in State courts), together with Art. 6 Supremacy Clause, operate in tandem to assure uniformity in interpretation & application of federal law no matter where the questions arise.
Cohens v. Virginia (1821) – Expanded USC’s right of review to judging the validity of STATE JUDGMENTS in CRIMINAL proceedings. Justice MARSHALL reaffirmed and extended STORY’s Martin rationale, holding that §25 granted USC power of review in “All cases arising under the Constitution or a law of the USA,” whomever are the parties.
C. Judicial Exclusivity in Constitutional Interpretation
Cooper v. Aaron (1958) – BROADLY construed USC’s role (as exclusive) in interpreting Constitutional matters. AK officials WERE bound by federal court orders that rested on the USC’s decision in Brown. The Court reaffirmed its commitment to desegregation and reiterated that legislatures are not at liberty to annul judgments of the Court. Court’s exclusivity in Constitutional Interpretation.
· Authority: Art. 6 of the Constitution mandates the Constitution’s SUPREMACY, and the 14th Amendment establishes that no person may be deprived of EQUAL PROTECTION under the laws (including Blacks, holding that “separate but equal” ≠ equal, after Brown), and Art. 6 ¶3 of the Constitution binds every state legislator, executive & judicial officer to “support the Constitution.”
o However, see Reagan-era Attorney General Edwin Meese’s criticism that Art. 6 demands that the Constitution is supreme – NOT what the USC says about the Constitution. He argues that USC decisions are binding on parties and on the executive branch for enforcement – but do not create supreme law that is binding on all persons & branches of gov’t forever.
o Rebutted by Johnson-era Attorney General Ramsey Clark, who stated that if every school district had to litigate the same issues in desegregation orders as in Brown, segregation would have prevailed outright.
· Are USC interpretations binding on Congress (federal legislature, not only State legislatures)?
o Article 5 of the Constitution allows Congress to initiate amendments to the Constitution, which in theory could be used to overturn a Constitutionality ruling of the USC.
o What if Congress tries to overrule a USC ruling by creating a statute? No.
§ Dickerson v. United States (2000) – USC had held that Miranda warnings must be given before a custodial suspect’s statements could be admitted into evidence. Then, Congress enacted a statute with a rule that said a statement’s admissibility turned only on whether statement was made voluntarily.
§ SCALIA dissented, reasoning that the majority found a non-existent power to also refuse to enforce a statute when what it prescribes violates a holding of the USC on a Constitutional matter.
o Speaks to central tension between legislative & judicial branches in interpreting and enacting constitutional law: While Congress cannot overrule USC’s interpretation of Constitution, it CAN modify or set aside evidentiary / procedural rules made by USC if those rules are not required by the Constitution.
· Are USC interpretations binding on the Executive branch?
o JEFFERSON – Judicial & exec branches are = in this regard w/in the sphere assigned to them – having pardoned many persons convicted of violating the Sedition Act of 1798 under then-Pres. Adams, and now discussing what body decides on the validity of the Sedition law: “Nothing in the Constitution has given the Courts the right to decide for the Executive, [any more than the other way around]. Both magistracies are = and independent in their sphere.”
o JACKSON – Tripartite theory of Const. Interpretation – having vetoed a bill to re-charter the Bank of the U.S. after USC had declared the establishment of the Bank within the power of Congress, and now discussing Constitutional interpretation issues: “The opinion of the judges has no more authority over Congress [than the other way around], and the President is independent of both. . . The USC must not control Congress or the Executive when acting in their legislative capacities. . . “
o LINCOLN – Political process allows for re-contouring & overruling of USC decisions – Campaigning after USC infamously held that a Black was not a USC and therefore could not sue in Fed. Court to assert his freedom (Dred Scott v. Sandford): “[Lest] the People cease to be their own rulers,” the USC can decide cases and we will not overturn the holding by mob rule; however, political solutions are available to voters, legislators & the Pres. to balance judicial power by refusing people and measures that would abide a bad decision.
o ROOSEVELT – Exec. must create legislative solutions to protect citz., even in defiance of USC precedent – Following USC’s invalidation of the National Industrial Recovery Act (NIRA) on Constitutionality grounds in Schechter Poultry Corp. v. U.S., Roosevelt nonetheless urged Congress to pass a NIRA-like regulatory scheme on the coal industry: “To stand idly by and permit [USC’s Schechter precedent to stand] would so imperil the nation that Legislative and Executive officers must [create a solution & let the USC rule on it later].”
o NOTE that all of these positions fall short of direct conflict with a court order, and only ROOSEVELT contemplated direct defiance of the USC.
· Judicial Review & the Democratic Ideal
o Can the un-elected USC’s review of laws passed by our elected officials (presumably reflecting the People’s will) square with the Democratic ideal?
§ Yes – Judges enforce, not thwart, People’s will; also, USC protects people / groups who lack the ability / mass to participate effectively in the political process.
§ No – The USC’s assertion that it alone can define Constitution and police the other branches = Jefferson’s fear of a “despotic branch.”
· Political Restraints on the USC: what can Exec & Leg branches do to counter USC decisions (other than political bullying)?
o JUDICIAL SELECTION – by Pres & with “advice and consent” of Senate (Art. 2) – but that interplay is politicized also.
o IMPEACHMENT – Life tenure (under Art. 3), except impeachment (under Art. 2) for High Crimes – but never been successful.
o COURT-PACKING – Congress can affect size & budget of the USC (Art. 3 – e.g., Roosevelt’s threat to increase the # of justices to offset anti-New Deal tenor of USC decisions) or set inconvenient times USC must meet – (e.g., legislative measures that postponed Marbury decision until 1803).
Partial redress may be enough: in Massachusetts v. EPA (see below), the remedy sought may reduce but could not eliminate greenhouse gases & thus global warming.
§ Conduct – CAUSATION – Injury // Injury – REDRESSABILITY – Relief
§ USC set an “outer limit” on Congress’ ability to confer rights of action (limited to “cases / controversies” by Art. 3), quoting MARSHALL: “The province of the USC is, solely, to decide on the rights of individuals.”
ð In dissenting, BLACKMUN held the Court’s invalidation of nonspecific “procedural injuries” a “slash and burn through the law of environmental standing.” (“Crocs can’t sue,” so need an agent. J)
§ Majority found that vindicating the public interest (even in compelling the Gov’t to observe the Const. & laws) is the function of the Leg. & Exec. Branches.
ð In concurring, KENNEDY found that Congress may define new injuries & chains of causation, but it MUST define redressability by showing how a violation creates an injury to a person entitled to sue.
Massachusetts v. EPA (2007) – Established that a State petitioner acting in its quasi-sovereign capacity has greater latitude in overcoming hurdles to standing under Art. 3 (contrast w/ “interest groups” in Lujan).
ð ROBERTS, dissenting, argued that parens patriae doctrine raises the hurdle to standing, and that MA’s statehood status did not excuse it from showing specificity, immediacy, causation & redressability. Cast majority opinion thus: “Every little bit helps, so MA can sue over any little bit.” Likened the decision to U.S. v. Students Challenging Regulatory Agency Procedures (SCRAP) (1973), which set the previous “high-water mark for diluted standing requirements.” Argued that Art. 3 standing requirements are fundamental limits that must be preserved by judicial restraint.
· Prudential Standing Doctrines – Beyond the 3 Constitutional Requirements
o Prudential standing obstacles may be negated by express action of Congress (unlike Art. 3 ones).
o THIRD-PARTY STANDING: π must generally assert his own legal rights & interests, and cannot rest his claim to relief on the rights & interests of a third party.
§ However, exceptions exist. In Craig v. Boren (1976), a liquor purveyor was allowed to bring suit to benefit male liquor buyers aged 18 – 21, asserting that an Oklahoma statute violated the 14th Amendment’s Equal Protection Clause by establishing a higher drinking age for men than for women (based on affected parties’ “interchangeable economic interests”).
§ “Overbreadth doctrine”: b/c overly broad law may deter constitutionally permitted action, the overbreadth doctrine allows a party to whom the law may constitutionally be applied, to challenge the statute on the ground that it violates others’ 1st Amendment rights.
o GENERALIZED GRIEVANCES: Even when a π has alleged a redressable injury for Art. 3 purposes, USC refrains from adjudicating “abstract questions of wide public significance,” which = generalized grievances that are better left to political redress by the representative branches.
