Constitutional Law Outline
Professor Dale Carpenter
Spring 2011
I. Introduction
a. The Constitution
i. Article I: Congressional Powers
ii. Article II: Executive Powers
iii. Article III: Judicial Powers
iv. Article IV: Interstate Relations
v. Article V: Amendments
vi. Article VI: Federal Law as Supreme Law
vii. Article VII: Ratification
b. Amendments
i. Amendments 1-10: The Bill of Rights
1. 10th Amendment – powers not delegated to federal government, or denied to the states are reserved for the states/people
ii. Amendments 13-15: Reconstruction
c. Modalities of Constitutional Interpretation:
i. Textual – the text itself is authoritative
ii. Structural – the overall structure of government, what fits best?
iii. Original Meaning/History – what was the meaning when it was adopted?
1. “Dead Hands” Objection
iv. Precedent/Tradition
v. Social Consensus/Prevailing Morality
II. Judicial Power
a. Marbury and Beyond
i. Marbury v. Madison (1803)
1. Historical Background: political struggle between Adams (Federalists) and Jefferson (Republicans); came to a head over justice of the peace appointments
2. Issues
a. Whether the plaintiffs’ commissions were valid.
i. Holding: The plaintiffs became entitled to their commissions upon the President’s signature.
b. Whether the plaintiffs were entitled to a remedy.
i. Holding: Marshall distinguished between political acts, which are not reviewable by the courts, and acts specifically required by law, which are reviewable. The refusal to deliver the commissions fell into the latter category.
ii. Political Question: “[W]here the heads of departments are the political or confidential agents of the executive, merely to execute the will of the President, or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable.” (pp. 3)
c. Whether the remedy sought, a writ of mandamus, could be granted.
i. The Judiciary Act provided that the Supreme Court would have jurisdiction “to issue…writs of mandamus…to persons holding office under the authority of the United States.”
ii. Marshall concluded that the Act’s grant of jurisdiction was in conflict with Art. III, § 2 – grants the Supreme Court original jurisdiction only “in all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party.”
1. Marshall reads the Judiciary Act as adding to the Court’s original jurisdiction. However, it could also be read to add only to the Court’s appellate jurisdiction (which would not conflict with the Constitution).
2. Canon of Constitutional Interpretation: when there are two readings of a statute, judges should prefer the one which is constitutional (Marshall does not do this).
3. Two Possible Interpretations of Art. III, § 2:
a. Constitutional Ceiling – can’t add to original jurisdiction
b. Constitutional Floor – can add to but cannot take away the listed areas of original jurisdiction
iii. Holding: If the Supreme Court identifies a conflict between a constitutional provision and a congressional statute, the Court has the authority (and the duty) to declare the statute unconstitutional and to refuse to enforce it.
d. Reasoning:
i. The Constitution is paramount
ii. It is emphatically the province and duty of the judicial department to say what the law is.
3. Cooper v. Aaron (1958) – The federal judiciary is supreme in the exposition of the law of the Constitution, and the Supreme Court’s interpretation of the Constitution is binding on state legislatures and executive and judicial officers.
4. Checks on Judicial Review – limits on jurisdiction, constitutional amendments, and confirmation hearings.
ii. Martin v. Hunter’s Lessee (1816)
1. Art. III, § 2: The Supreme Court’s appellate jurisdiction may be regulated and limited as Congress shall provide.
a. Judiciary Act: jurisdiction limited to federal questions.
2. Issue: Whether the Supreme Court is constitutionally authorized to review the constitutionality of statue court decisions.
3. Holding: the Court can review the constitutionality of a decision by a state’s highest court.
4. Reasoning
a. Sovereignty of states (structural) argument rejected
i. Virginia also argues that the text of the Constitution does not explicitly give the Court the power to review state court decisions.
b. Uniformity – necessary in decisions interpreting the Constitution
b. Limits on Judicial Authority
i. Art. III, § II, cl. I: The Judicial Power shall extend to all “cases and controversies…”
1. Court will not issue Advisory Opinions
ii. Standing
1. Lujan v. Defenders of Wildlife (1992) – The Requirements for Constitutional Standing:
a. The Plaintiff must have suffered an “injury in fact” – an invasion of a legally-protected interest that is:
i. Concrete and Particularized – cannot be hypothetical or conjectural; cannot be an injury which everyone is suffering
ii. Actual or Imminent Harm
b. Causation – there must be a causal connection between the injury and the conduct complained of; the injury must be “fairly traceable to the challenged action of the defendant, and not the result of an independent third party not before the court.”
c. Redressability – it must be likely that a favorable decision will redress the grievance
2. Massachusetts v. Environmental Protection Agency (2007)
a. Issue: Whether Massachusetts has standing to challenge the EPA’s failure to enforce the Clean Air Act and
Just. Marshall: “Questions, in their nature political, or which are, by the Constitution and laws, submitted to the executive can never be made in this court.”
2. Baker v. Carr (1962)
a. Equal Protection challenge to Tennessee voting districts which diluted urban votes
b. Holding: Court could decide this issue (not a political question)
i. The political process itself is not likely to be self-correcting
c. Six Factors prominent on the face of any case held to involve a political question:
i. A textually demonstrable constitutional commitment of the issue to a coordinate political department, or
1. Ex. Impeachment
ii. A lack of judicially discoverable and manageable standards for resolving it, or
1. Ex. Guaranty Clause – impossible for courts to determine
iii. The impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion, or
iv. The impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government, or
v. An unusual need for unquestioning adherence to a political decision already made, or
vi. The potential for embarrassment from multifarious pronouncements by various departments on one question.
d. When one of the factors is present, the Court must refuse to hear the case. Highly discretionary and malleable.
3. Nixon v. U.S. (1993)
a. Sitting judge impeached and convicted by Congress (tried by Senate Committee) – Nixon challenged the trial by Senate committee as unconstitutional
b. Court refused to hear the case finding it was a political question
i. Art. I, § 2, cl. 5 – House has the sole power of Impeachment
ii. Art. I, § 3, cl. 6 – Senate has the sole power to trial all impeachments
c. Reasoning – (1)“Sole” means that the Senate alone shall have the authority to determine whether an individual shall be acquitted or convicted, (2) criminal and impeachment proceedings were deliberately separated by the Framers, and (3) impeachment is the check on the Judicial Branch by the legislature.
