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Constitutional Law Survey
University of North Carolina School of Law
Marshall, William P.

Con Law Outline Spring 2014 (Marshall)
i)        To keep order/ stability
ii)      May provide more consistency b/c its harder to change than statutes
iii)    Sets forth a sort of contract between the government and residents/states (although, keep in mind that no one still living actually signed the contract)
iv)    Sets out individual rights
v)      Creates separation of power between branches of govt and between fed states
i)        Interpret literally: however, a lot of provisions in the Constitution are deliberately ambiguous because the Framers couldn’t agree on exactly what they wanted (i.e. “n/p” clause may have resulted from this)
ii)      Interpretation based on perceived purpose:
1)      Originalism: idea is to interpret Constitution accd to Framers’ intent, in part to curb govtal discretion
(a)    Scalia says we should do this by looking at the definition of the terms used in the Constitution at the time
(b)   We don’t know if the Framers would have wanted this—they might have wanted understanding of the Constitution to evolve as society evolves
(c)    Because there’s no absolute way of determining original understanding, originalism is flexible and not particularly predictable
(d)   Marbury, Carter Coal, EC Knight, Laughlin, etc., makes no reference to “original understanding”
(e)    Framers didn’t intend 14th Amendment Equal Protection Clause to apply to women—should that really influence our interpretation of it?
iii)    Interpret after looking at Constitution as a whole
i)        We don’t need to find something explicitly written in the Constitution to find a constitutional right to it (i.e. executive privilege)
ii)      A major purpose of the constitution is to make the economy work and the states work together
1)      Under Articles of Confederation, the states had too much power and wouldn’t cooperate
iii)    Federalism: limiting federal power and maintaining some degree of sovereignty for the states
1)      There’s nothing in the Constitution actually articulating federalism
Reasons/arguments for reserving powers for the states
Reasons/arguments for centralized govt
·         Fear of highly centralized govt
·         Experimentation with laws
·         States aren’t uniform and so need some of their own laws
·         Local is better (what works for one place might not work for another)
·         Local = higher accountability for officials (supposedly)
·         If you don’t like the laws of a state, you can move
·         Economic efficiency
·         Prevents “race to the bottom” (e.g. lowering pollution standards to attract businesses)
·         Promote national identity
·         Protect minorities from local biases
·         Consistency
iv)    Good law is not necessarily constitutional; bad law is not necessarily unconstitutional
v)      SCOTUS may patrol separation of powers even if there’s consent between branches to transfer powers
vi)    How much authority should precedent have? And how much does it have? (see Casey)
1)      If the court is inconsistent, it will be exposed as making its decisions politically despite not being politically elected
2)      If we say the judges can do whatever the want b/c they’re supposedly insulated, we can’t criticize them when they do something we don’t like
3)      Whatever method of constitutional interpretation you choose, you’re going to have to live with some decisions you don’t like
4)      Cts would rather distinguish a case to the point of making it useless than overturn it
vii)  When should ct defer to legislature?
1)      One writer says we should trust the democratic process unless it leads to the rights of minorities being compromised
2)      Did Carolene Products go far enough?
viii)   The Constitution doesn’t grant total individual autonomy—state can place certain restriction
ix)    A law can be constitutional on its face but unconstitutional when applied to certain circumstances
Advantages of Following Precedent
i)                    can provide a framework for the court to use
ii)                  create greater legitimacy to the court’s actions in order to sustain itself as a viable third branch
iii)                cabin the Justices
iv)                allows people to rely on precedent/they know what to expect
Disadvantages of following precedent
i)                    Precedent can be wrong
ii)                  Times and context change
i)        Authority of Federal Judicial Power:
1)      Art III: fed judicial power shall be vested in one Supreme Ct, and in such inferior cts as the Congress may from time to time ordain and establish
2)      Art III never gave the fed cts the power to review the constitutionality of fed/stat law and executive actions: either it was already understood , the silence reflects failure to consider issue when drafting the Constitution, or the court couldn’t have this authority
3)      Art III as ceiling grant of jurisdiction
(a)    (ref Marbury): Congress can NOT expand the original jurisdiction of the SCOTUS
(i)     Fed cts may NOT hear cases beyond what is specified in Art III
(ii)   Fed cts can NOT gain juris by consent
4)      Rationale: Constitution is the supreme law of land; duty of judicial branch to interpret law comes from nature of court system and part of deciding cases.
ii)      Scope of Federal Judicial Power
1)      Fed ct of limited jurisdiction
2)      Art III, §2 limits fed cts to cases (among others): Arising under the Constitution, an act of Congress, or a fed treaty in which the US is a party btw a state and citizens of another state; and btw citizens of different states
i)        “Judicial Review”: SCOTUS/ fed cts have the power to decide the constitutionality of the actions of the legislative and executive branch.
1)      power to review the actions of other branches of govt
2)      power to declare laws unconstitutional
ii)      Marbury v. Madison (1803)–Source of Power for Judicial Review:
1)      Established the authority for the judiciary to review the constitutionality of executive and legislative acts (Constitution is silent as to whether fed cts have this authority—power existed since Marbury)
2)      Facts: invalidated Judiciary Act of 1789 by saying that Congress cannot expand original juris beyond Art III.
3)      Holding:
(a)    “Supreme Law”: Where the Constitution of the US, as interpreted by Supreme Ct, conflicts with laws enacted by Congress, the Supreme Ct may declare such laws unconstitutional and invalid
(b)   Ct has institutional role and has a lot of power, i.e. supreme power to interpret the Constitution
(c)    Constitution imposes limits on govt powersà these limits would be meaningless unless the Judiciary can enforce them.
(d)   Policy implications: ct has the power to strike down decisions of democratically elected officials
(e)    Decision based on language and context of Constitution
(f)    Distinction ensures uniformity of fed laws
(i)     Cited in:
(1)   Cooper v. Aaron (1958): responded to AK’s refusal to obey fed ct order to desegregate Little Rock public schools
(2)   US v. Nixon (1974): Nixon thought he could decide the scope of his own privileges
iii)    Uses/ Advantages: Why invest in power of Judicial Review to SCOTUS?
1)      Unlike the other two branches, relatively limited branch
2)      Interpret

l: derived from wise policy and prudent judicial administration
a.        can be overridden by Congress
(b)   Reasons for justiciability doctrines:
(i)     Tied to separation of powers- defines the judicial role and determine when it’s necessary to defer to the other branches
(ii)   Conserves judicial resources
(iii) Improve judicial decision-making—provide cases best-suited for JR
(iv) Promote fairness—limits to ppl who are parties to a suit
(v)   Balancing judicial restraint and judicial review
(c)    Five major justiciability doctrines
(i)     Prohibition against advisory opinions
(1)   Necessary to preserve separation of powers between branches
(2)   There must be an actual dispute btw litigants
(3)   There must be a substantial likelihood that a fed ct decision in favor of a claimant will bring about some change or have some effect
(ii)   Standing: whether a specific person is the proper party to bring a matter to the ct for adjudication
(iii) Ripeness: whether a case is premature for a judicial decision/ determining when review is appropriate (centers on whether the injury has occurred yet)
(iv) Mootness: whether there is still a live controversy involved
(v)   Political Q doctrine: refers to subject matter that Ct deems to be inappropriate for judicial review
2)      The Political Question Doctrine
(a)    Either based on state sovereignty or separation of powers, some issues are not going to be justiciable.
(i)     States are guaranteed a republican form of government (Guaranty Clause) (Colegrove v. Green)
(b)   Critics argue that it is wrong to leave some constitutional provisions solely to the political branches to interpret and enforce. The Constitution is meant to insulate matters from the political process.
(c)    Proponents defend it on separation of powers grounds, saying that the Constitution is seen as assigning certain provisions to the other branches of government. It minimizes judicial intrusion into the operations of the other branches and allocates decisions to the branches of government that have superior expertise in particular areas
(d)   What is a political question?
(1)   Ct. has held that certain allegations of an unconstitutional gov’t should not be ruled on by the federal courts, even though all of the jurisdictional and justiciability requirements are met. Basically, questions inappropriate for judicial review.
a.       Often wars are not judicially reviewed on PQ grounds.
(2)   These areas of constitutional interpretation should be left to the politically accountable branches of government.
(3)   How do we know it’s better for another branch?
a.       Textual commitment by Constit. to another branch
b.      Are there actual standards to guide the Court?
c.       If already been decided by another branch à Defer.
(4)   Two sets of principles:
a.       Separation of Powers: Ct will not decide matters which it concludes are committed by the Constitution to other branches of govt. OR
b.      Prudential concerns: Ct considers unwise (even though Constitutional to decide)