Constitutional Law
Abrams
Fall 2014
I. History: The Power of Judicial Review
1) Judicial Review: Power to declare acts of governmental officials unconstitutional, invalid according to what court’s interpretation of the constitution is.
a) Constitution v. Statute:
i) Broad in scope
ii) Difficult to amend (14 times in 220 yrs)
iii) Durability
iv) Anti-Majoritarian
b) Statutes
i) Area specific
ii) Easier to amend
c) Ashwander v. TVA (1936): Brandeis concurring that he agreed with the court’s decision, constitutional question should have been avoided. as a matter of judicial restraint “constitutional avoidance,” that the court should try to decide on statutory grounds so Congress can amend statute.
i) Brandeis’ Majority Opinion
(1) SCOTUS’ review of constitutionality of legislative acts “grave and delicate” power for use only when cannot be conscientiously avoided.
(2) Predicated on separation of powers principle, they should not “encroach upon domains” of the other branches.
(3) 2 Primary limitations
(a) Case or controversy
(b) Fed. Courts can’t give advisory opinions.
(4) Avoidance Doctrine’s 7 Rules
(a) Rule against feigned or collusive lawsuits
(i) Court will not pass upon the constitutionality of legislation in a friendly, non-adversarial proceeding.
(b) Ripeness
(i) Court will not anticipate a question of constitutional law in advance of the necessity of deciding it.
(c) judicial minimalism
(i) ct won’t formulate a rule of constitutional law broader than required for the precise facts to which it is to be applied.
(d) Last resort rule
(i) Won’t pass upon a constitutional question, although properly presented, if also at present some other ground upon which the case may be disposed of
(e) Standing; mootness
(i) The court won’t pass upon the validity of a statute upon complaint of one who fails to show he is injured by its operation.
(f) Constitutional estoppel
(i) The court will not pass upon the constitutionality of a statute at the instance of one who has availed himself to its benefits.
(g) Constitutional avoidance cannon
(i) When the validity of an act of the Congress is drawn into question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle
(5) Doctrine not unitary in nature, more loosely related principles.
(6) Rule against feigned or collusive suits and constitutional estoppel rarely arise. Other rules have been absorbed by Art III.
d) West Virginia State Bd. of Education v. Barnette (1943): remove certain
subjects from the politics to protect the minority.
e) Bill of Rights: Meant to be only a limitation on the power of the federal government. Post-civil war was also a limitation on state powers.
f) Article IV: Full Faith and Credit shall be given in each state . . . to the acts of every other State
g) Article V: Amending Constitution
i) 2/3 of both houses then sent to states, must be ratified by 2/3 state legislatures
ii) 2/3 of states come together to form new constitutional convention.
(1) States can call their own CC’s to amend their constitution (happens occasionally).
(2) Has never happened on a federal level
(3) Abrams: could potentially be dangerous, many interests back in cold-war days wanted to get rid of 1st Amendment.
iii) Good idea? Maybe senate really unrepresentative of country as a whole, lifetime tenure of federal judges, campaign primary system creates closed system for president.
2) Marbury v. Madison: Supreme court has right to congressional review but cannot expand power beyond Article 9, appellate jurisdiction but not original jurisdiction. 5 Reasons as to why supreme court has final say in constitutional matters
a) Nature of constitution
i) Court would be required to follow statute or Constitution in case, inability for court to reject statute in favor of Constitution would subvert the very foundation of written constitution.
b) Traditional Role of Courts
i) “It is emphatically the province and duty of the legislature to say what the law is”
ii) Giving the legislature power to determine whether its own acts exceed constitutional limits would give it “a real and practical omnipotence.”
c) Article III extended judicial power to all cases arising under the Constitution.
i) This jurisdictional power inevitably leads to the conclusion that the framers of that provision must have been willing to allow the judiciary to use and interpret the Constitution in cases arising under it.
ii) Judges must take oath to uphold constitution
3) Supremacy clause
a) Supreme law of the land must be the Constitution, and the Justices must follow it rather than any provisions of federal legislation that are inconsistent with the Constitution.
b) This opinion allows judicial review of acts of governmental officials.
c) Still not frequently used; 50 years until court struck down a federal statute (Dred Scott).
d) Judicial Review TODAY
i) Constitution, Fed laws & treaties are supreme law of the land
ii) Courts may interpret Constitution and acts in cases before them
iii) Judicial interpretation is FINAL and CONTROLLING for all purposes and not just the case before them
iv) Political branches may overrule by constitutional amendment… or a statutory decision by statutory amendment.
e) Congressional Control of Federal Courts: REMOVAL Bills
ast v. Cohen
i) No advisory opinions
(1) Separation of powers (Courts must look backward while having an eye on future)
(2) Prudential: Avoid interference with other branches, conserve resources, judicial restraint, efficient/effective decision making, collusive suits.
ii) Arguments
(1) Ban forces court to wait for actual case.
(2) Maintains separation of powers BUT having them held conservative legislative resources.
(3) Some states allow advisory opinions or advice (eg. MO).
(4) Discta is not an advisory opinion…isn’t prohibited by Art. III.
2) Third Party Standing
a) Types
i) Art. III: Constitutional standing, suffered injury to your legal interests.
ii) Non-Constitutional/Statutory: P must be within class of Ps created by statute.
b) Prevents a plaintiff from prosecuting a case in a manner that the third-party would not like
c) Parties that litigate their own issues, generally do so more carefully
d) Exceptions to Rule against 3rd Party Standing:
i) Close relationship between plaintiff and third-party (Craig v. Boren)
ii) Association suing on behalf of injured members (Warth v. Seldin)
iii) Third-party unlikely to be able to sue (Village of Arlington v. Metro. Housing)
iv) First Amendment Over-breadth Doctrine
(1) If argue speech restriction over-breadth, can argue that others may be “chilled”
e) Elements-
i) Article III
(1) Injury in fact: P alleges personally suffered an imminent, threatened or actual injury, a distinct and palpable injury to himself.
(2) Causation: The alleged injury must be “fairly traceable” to the D’s conduct.
(3) Redressibility: Must be likely that a favorable court decision would redress the Ps injury.
ii) Prudential
(1) Limitation on standing to ensure sufficient “concrete adverseness,”
(2) Limitations on right of litigant to raise another person’s legal rights
(3) Barring adjudication of generalized grievances more appropriately addressed legislatively.
(4) Requirement plaintiff’s complaint must fall within zone of interests protected by statute at issue.
iii) Plaintiff has burden to establish standing at each stage of standing.
3) Cases:
