Constitutional Law
Daniel Halberstam
Fall 2012
BIG PICTURE CONSTITUTIONAL THEORY
Functions of the Constitution
1. Creates national government and divides it among three branches.
2. Divides power between federal and state governments.
3. Protects individual liberties
When a question asks whether a law that Congress drafted is valid, query whether it is within Congress’s Art. I or §5 powers
1. Query whether it is a valid exercise of Congress’s commerce power.
2. Query whether it is a valid exercise of Congress’s taxing or spending power.
3. Query whether it is a valid exercise of Congress’s other Article I powers: (a) ratify treaties, (b) declare war, (c) regulate immigration, (d) raise, support, and regulate armed forces, (e) coin money/combat counterfeiting, (f) establish post offices/roads, (g) provide for patents, (h) establish inferior courts, (i) approve interstate compacts.
4. Query whether it is “necessary and proper for carrying into execution” its enumerated Art. I powers (rationally related).
5. Query whether it is a valid exercise of Congress’s power under §5 of the 14th amendment or §2 of the 13th or 15th amendments.
If law is within Congress’s enumerated powers, consider whether it is rationally related to the constitutionally-specified objective (McCulloch – Necessary & Proper Clause).
If it is within Congress’s powers, query whether it violated a separate constitutional provision
1. Equal Protection Clause (14th Amendment; DP clause of 5th Amendment covers federal EP violations).
2. Due Process Clause (5th and 14th Amendments).
3. Privileges and Immunities Clause (14th Amendment)
4. Tenth Amendment (Reserved powers to the states)
5. Thirteenth Amendment (Ends slavery)
6. Nineteenth Amendment (Women’s right to vote)
7. Twenty-Sixth Amendment (Set national voting age to 18)
If the law that Congress drafted is within Congress’s powers and did not violate a constitutional provision, query whether it violated a constitutional principle
1. Separation of Powers
2. Federalism
3. Constitutional Structure
4. Sovereign Immunity
5. Political Process Issue
Rational Basis Test Justifications
Separation of Powers. Legislatures better situated than courts to deal with difficult, complicated policy decisions.
Federalism. States should be making policy decisions, not federal officials.
Strictest kind of Rational Basis Review. Romer. Cleburne. Moreno.
Loosest kind of Rational Basis Review. Lee Optical.
Strictest kind of Strict Scrutiny Review: Johnson v. California
Loosest kind of Strict Scrutiny Review: Grutter.
Stevens in Craig v. Boren (concurring) advocates a sliding scale that would allow the court to consider factors such as the constitutional and social importance of the interests adversely affected and the indiviousness of the basis on which the classification was drawn. Would lead to more candid discussion on competing interests and overall better decision-making.
Jackson Youngstown Principle. Court can’t pick a fight with both other branches of government. Court CAN pick a fight when it has an ally (Congress).
JUDICIAL REVIEW (DOCTRINE)
Rule
1. Supreme Court is the sole arbiter of what the law and Constitution say/require (Marbury).
2. Is the theory that judges merely “interpret” the Constitution analytically sound? If the platonic ideal of the Constitution exists, does it change? By Amendments are ineffective because they take too long, and that the judges are out of date, out of touch?
3. If the meaning of the Constitution is different at any point of time, based on the circumstances, then are judges wrong when they don’t reflect a contemporary societal interpretation of the Constitution?
4. Does this just require the Court and Congress to enforce the minimal constitutional norms declared by the court in individual rights contexts? How does this apply to clauses that specifically delegate power to the other branches of government? How does this apply for some constitutional provisions that appear to be targeted at limited federal court jurisdiction or federal court power—i.e. the 11th amendment?
5. Is the assertion of judicial supremacy and the requirement that the Supreme Court alone interpret the Constitution a naked power play by the court, committed so the executive can no longer refuse to enforce a court order?
6. Does Marbury require the Court to answer Constitutional questions? What questions, and when? Who decides what a case presents as a question? Or should the court just decide results? For instance, is Marbury just an attempt to avoid deciding whether Marbury should have his commission?
Why should we have judicial review?
1. Alternative: Departmentalism—each branch of government gets to decide what the constitution means. Requires super coordination (i.e. multiple vetoes, might bypasses the constitutional amendment and veto provisions of the constitution, might be too unwieldy, might create too much interdepartmental conflict).
2. Additional check on Congress. President already gets to veto; judicial review gives the judiciary veto power over legislation. Also, different forms of representation (i.e. senate, president, congress, + court are all devices for representing the ‘people’).
3. Someone has to be the last decision maker. Maybe it should be the body that individuates law to people (applies the law), to separate the implementation and decision-making bodies. Maybe it should be the body that changes the least. Maybe it should be the body that can’t control money or guns or affirmatively enact policy (question whether the court is the latter)?
Why should the Court be the final decision maker?
1. It is a sampling of opinion over a durable time period, rather than a 1 period time frame like an election, and a balancing of Congressional and Executive Interest.
2. It isn’t beholden to constituencies; perhaps it possesses less personal interest and electoral interest. Judges may be less used to accumulation of personal power given their career trajectory (no promotions, no elections, no accumulation of influence?).
3. Are judges trusted? If so, then is that a reason to give them the final say. Appointed by the Congress, so similar to the people they are supposed to check, but that means a) bad check, but b) no worse than Congress. Judges lack expertise, breadth of perspective given their background, and limited time to address to each question.
4. Court is checked: appointment, impeachment, and amendment, so it can be denied an opinion by Congress.
5. Counter – Policy discussion may diminish as issues are taken from the public’s hand.
JUDICIAL REVIEW (CASES)
Marbury v. Madison
FACTS. OUTGOING Federalists (John Adams) made last-minute judicial appointments, in accordance with the recently-passed Organic Act, which authorized President to appoint 42 justices of the peace in DC. While fully confirmed by the senate and signed by Sec. of State John Marshall, a few commissions (e.g. William Marbury) went undelivered before Jefferson’s inauguration. INCOMING Antifederalists (Thomas Jefferson) disregarded appointments.
HOLDING: The provision of the Judiciary Act of 1789 that authorizes original jurisdiction is unconstitutional because Congress can’t allow original jurisdiction beyond situations enumerated in the constitution.
RATIONALE
1. Marbury has right to commission. Appointment made when commission signed by President, and Sec. of State affixes the US seal. Refusal to deliver commission violates “vested legal right.”
2. U.S. laws afford Marbury a remedy. Not every act of government is protected by separation of powers; legality depends on nature of act. Judiciary can provide remedies against the executive when, under law, a specific duty to a specific person exists, but not for political matters best left to exec. discretion.
3. SC can’t give this remedy because, while Commission is legal document vesting an individual right, the SC has no power to issue writ under original jurisdiction.
a. §13 of Judiciary Act of 1789 authorizes SC “to issue writs of mandamus in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.” Sec. of State fits description as a person holding office under the authority of the United States. Thus, we’re either able to issue a writ to him or the Judiciary Act is unconstitutional.
b. Art. III, §2 provides, “the SC shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the SC shall have appellate jurisdiction….with such exceptions, and under such regulations as the congress shall make.” Marshall leaves this out! Judiciary Act of 1789 seems to be an exception congress made.
c. Such an authorization violates Art. III, §2 of constitution. Congress cannot add to list of original jurisdiction; if it could, constitutional enumeration would be meaningless “form without substance.”
d. If §13 of Judiciary Act violates Art. III, §2 of constitution, can it remain law? NO! Separation Constitution and the tripartite structure of government it provides for would be meaningless were this the case. Therefore, constitution is supreme law of land that trumps any legislative act. “It is emphatically the province and duty of the judicial department to say what the law is.”
e. If constitution is supreme law of land, judges can’t ignore certain parts; have to enforce all of it.
f. Oath of office for all three branches includes phrase “discharge my duties….agreeably to the constitution.” Why can’t legislature and/or executive uphold the constitution? If constitution is supposed to be binding, and legislature is only one upholding it and making the laws, then they could flout it at will, causing it to lose its meaning. Could use the same argument against the courts: SC could strike down all congressional laws and make all law themselves, a power not expressly granted to them by the constitution.
Cooper v. Aaron
a. FACTS.
b. RULE. Lower federal courts have the authority to review constitutionality of state laws and actions of state actors.
c. RULE. The constitution confers a duty on behalf of state officials to obey federal court orders.
1. Marbury established that the SC’s interpretation of constitution is the supreme law of the land. Art. IV makes it binding on the states, “anything in the constitution or laws of any state to the contrary notwithstanding.”
2. Every state official takes an oath to support the constitution. Disobeying SC violates that oath.
3. Meese distinguishes binding constitution from non-binding SC interpretation thereof (strained reading).
FEDERALISM (CASES)
McCulloch v. Maryland (1819) [Big for legislative power]
a. FACTS. Congress charted Second Bank of US. MD legislature passed law imposing tax ($15,000) on banks or branches thereof in MD not charted by MD legislature.
b. RULE. Congress has the power, pursuant to necessary and proper clause, to create a national bank.
c. RULE. States have no power, by taxation or otherwise, to burden, or in any manner control, the operations of the constitutional laws enacted by congress to carry into execution the powers vested in the general government.
d. RATIONALE
1. Constitution emanates from the people, not the states. Assent of states was limited to calling convention to submit constitution to the people. Marshall rejects “compact federalism,” which states that the states possess supreme dominion (final say) because they ratified the constitution.
2. Constitution does not give Congress authority to create a bank, but nothing in the Constitution (a) excludes implied powers, and (b) requires that all powers be expressly and minutely described. 10th amendment reserves powers not delegated to the federal government by the constitution to the states. Because amendment does not contain the word “expressly” as opposed to Articles of Confederation, it follows that framers omitted it intentionally (textual argument).
3. “[I]t is a constitution we are expounding” – it is within the nature of the constitution to be broad and not to include all powers. It was never meant to be a legal code.
4. Congress must be entrusted with ample means (read: incidental powers) to execute their enumerated powers. Bank is “essential to the beneficial exercise” of Congressional power to collect and expend taxes, borrow money, support armies, etc. Reason dictates that the framers did not intend to give Congress empty powers.
5. Broad interpretation of necessary and proper clause. Necessary and proper clause gives congress power to make all laws necessary and proper for the execution of their enumerated powers. But…national bank doesn’t seem necessary for power to tax and support armies (could use state chartered banks). Marshall – common usage of “necessary” is to mean “convenient” or “useful.” It’s telling that “necessary” isn’t modified by “absolutely,” as it is in Art. I §10 (intertextual argument). Also, were “necessary” meant to be interpreted strictly, then the addition of “proper” would be superfluous. Structural arg: N&P clause is in Art. I Sec. 8 (enumerating powers) and not Art. I Sec. 9 (limiting powers).
6. PRINCIPLE. Historical experience can justify the constitutionality of a practice (history of first bank justifies second bank). Court follows this principle in Youngstown and Dames & Moore.
7. Analogy – power “to establish post offices and post roads” implies powers to deliver mail between offices and to punish letter stealers. Neither is necessary to execute the power, but both are essential to the beneficial exercise thereof.
8. State right to tax is limited by territorial jurisdiction (borders) and subject-matter jurisdiction (im re appropriate and adapted to the end, and (d) is within letter and spirit of constitution. Broad test. ports/exports).
9. Power to tax is power to destroy. Constitution doesn’t expressly prohibit taxing National Bank, but principle of constitution as supreme law of the land applies. If states were able to tax a National Bank, they’d be able to destroy it. It follows from Congress’s right to create a National Bank that no state has the right to destroy it. The federal government, though limited in its powers, is supreme within its sphere of action. Structural arg.
10. MD Arg: you have to trust that states won’t abuse their powers. Marshall (structural arg.): power to tax those within state limited by political accountability of elections; federal bank has no recourse. The whole point of structured government is to replace trust with institutions.
11. Modern application – courts rarely look at legislature’s motive as long as the possible end is rationally related the means.
COMMERCE POWER (DOCTRINE)
1. Commerce Clause (Art. I §8 Cl. 3). “To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”
2. Necessary and Proper Clause (Art. I §8 Cl. 3). “To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof.”
Congress has the power to regulate FOUR categories of activities under the commerce power (see Lopez for modern articulation of test):
1. Channels of Commerce. Congress can regulate the use of channels (highways, waterways, and air traffic) of commerce, even if that commerce is intrastate (Swift).
2. Instrumentalities of Commerce. Congress can regulate the instrumentalities (people, machines, etc.) of commerce, even if that commerce is intrastate (Shreveport Rate).
3. Articles of Commerce. Congress can regulate any good moving in interstate commerce.
4. Substantially Affecting Commerce. Congress can regulate activities having a “substantial effect” on interstate commerce (Shreveport Rate, Jones & Laughlin, Darby).
a. Commercial Activity
i. Wickard Aggregation Principle. If the activity has a commercial aspect (wheat in Wickard), it doesn’t matter whether the particular instance of the activity affects commerce as long as it is part of a general class of activities that collectively affect interstate commerce (Raich, Wickard).
ii. Intrastate Activities. Congress can regulate intrastate activities as long as they have an effect on interst
ery Act prohibited interstate shipment of lottery tickets.
b. RULE. Congress can regulate criminal activity, as long as such criminal activity is a part of interstate commerce.
Hammer v. Dagenhart (The Child Labor Case, 1918)
a. LAW. Congressional act banned interstate transportation of goods produced in factories that used child labor.
b. RULE. Congress can no longer prohibit interstate shipment of goods for purely moral purposes.
c. 10th Amendment. Reserves control of purely intrastate activities (mining, manufacturing, etc.) to the states.
d. Where Does It End. First example of the “where does it end?” argument.
e. Promote vs. Destroy Commerce. Commerce power doesn't encompass the right to forbid commerce from moving (thus destroying it).
f. Goods themselves harmless. In this case, the goods themselves are harmless; it's the child labor that makes them bad (unlike Lottery Case, Hipolite and Hoke, in which each case regulation was necessary to prohibit harmful products).
g. Intent. Production of articles intended for, but not actually a part of, interstate commerce cannot be regulated by Congress.
ALA Schechter Poultry v. US (The Sick Chicken Case, 1935)
1. LAW. National Industrial Recovery Act promulgated several hundred codes (wages, hours, trade practices) of fair competition for various industries.
2. FACTS: Schechter slaughterhouses in Brooklyn, which only sold chickens to local retailers, violated code.
3. RULE. NIRA doesn't fit within commerce clause because transactions (a) weren’t “in” interstate commerce because not at any point did products from the chicken slaughterhouses leave the state (intrastate commerce), (b) didn’t directly affect interstate commerce (i.e. wages, hours).
Carter v. Carter Coal Co. (The Carter Coal Case, 1936)
1. LAW. Bituminous Coal Conversation Act regulated hours, wages and collective bargaining in coal mines.
2. FACTS. Carter brought stockholder's suit to enjoin it from paying fines for incompliance with the code.
3. Manner/Relation. Directness hinges upon MANNER/RELATION (i.e. manner in which regulation has been brought about and its relation to commerce itself), not EXTENT/DEGREE (i.e. the impact the law will have on the economy).
COMMERCE POWER: POST- NEW DEAL (CASES)
NLRB v. Jones & Laughlin Steel (1937)
a. LAW. National Labor Relations Act, which vested the National Labor Relations Board with authority to regulate labor practices affecting commerce (in this case, discriminatory labor practices).
b. FACTS. Jones & Laughlin is a steel conglomerate with subsidiaries all over the country that engages in production, shipping and sales. Court focuses on industrial war and degree of importance of steel industry.
c. RULE. Whether activities “have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect commerce from burdens and obstructions (e.g. a labor shortage at Jones & Laughlin would affect commerce in other states).
d. Manufacturing/Commerce. Irrelevant whether the activity being regulated occurs before, during or after the interstate movement (implicitly overrules Hammer).
e. Extent/Degree over Manner/Relation (implicitly overrules Carter).
US v. Darby (1941)
a. LAW. Fair Labor Standards Act, which prohibited interstate shipment of goods if companies didn’t comply with wage and hour requirements, against a challenge by Darby, a Georgia lumber manufacturer.
b. Substantially Affecting Commerce Doctrine (from Shreveport). Regulation of employment (hours, wages, etc.) is so related to the commerce and so affects it that Congress has power to regulate it. Congress can choose the means reasonably adapted to their ends, even if the means encroach on intrastate commerce.
c. Overrules Hammer Explicitly (first CC case to explicitly do so)
1. Court can't consider motive or pretext of Congress; only relevant question is whether Congress has the power.
2. Congress can regulate both articles with intrinsic harmful qualities and articles without intrinsic harmful qualities produced under harmful (child labor) conditions.
d. Interstate Externalities Argument. If one state has child labor, other states are forced to have it in order to compete (not be outpriced) in national economic marketplace.
Wickard v. Filburn (1942): Aggregation Principle
a. LAW. Agriculture Adjustment Act permitted Sec. of Agriculture to set quotas for the production of wheat on every farm in the country, regardless of whether it would be sold interstate or intrastate, or consumed on the same farm.
b. FACTS. Filburn, farm-owner, challenged AAA, arguing it did not apply to wheat consumed on his farm that never entered commerce.
c. Aggregation Approach. Effect of activity on the market may be trivial, but taken together with the activities of many others similarly situated is far from trivial (e.g. if all farmers acted this way, the economy would be substantially affected; homegrown wheat competes with wheat in commerce because it supplies the need of a man that could be supplied by the market).
d. Supply and Demand. Anything that affects supply and demand is considered to “affect commerce.”
e. Anti-Formalism. Justice Jackson criticized formalistic approach that gave such weight to arbitrary distinctions (e.g. direct/indirect, manufacture/sale).
Heart of Atlanta Motel v. US (1964): Commerce Clause and Civil Rights
a. LAW. Civil Rights Act prohibited discrimination in certain places of public accommodation if operations affect commerce.
b. FACTS. Heart of Atlanta Motel (75% guests from out of state) refused to rent rooms to blacks.
c. COMMERCE. Discrimination impedes interstate travel. Burdens on interstate travel affect interstate commerce.
d. Rational Basis
1. Did Congress have rational basis to conclude that regulation affects commerce?
2. If so, were the means selected to regulate reasonable and appropriate?
Katzenbach v. McClung (1964): Commerce Clause and Civil Rights
a. LAW. Civil Rights Act prohibited discrimination in certain places of public accommodation if operations affect interstate commerce.
b. FACTS. Ollie’s BBQ, which (a) received 46% of its meat through interstate commerce, and (b) was located near an interstate highway, only allowed blacks to eat take-out.
c. COMMERCE. Refusal of restaurants to serve blacks has negative effects on interstate commerce
1. Businesses lose money.
2. Blacks can’t participate in interstate commerce if they don’t eat.
3. Skilled blacks deterred from moving to and working in areas of discrimination.
d. Rational Basis. Court doesn't need to prove substantial effect on a case-by-case basis.
