Outline – Constitutional Law – Robertson – Fall 2010
1. History:
a. Concerns of Anti-federalists: no explicit individual rights protections, spurned bill of rights.
b. Federalists saw problems with the previous system, supported ratification.
c. Any exaggeration in federalist papers was usually to downplay effect of new constitution because it needed to calm fears of opponents.
d. Courts:
i. John Jay and Oliver Ellsworth followed seriatum in opinions. Didn’t do much to develop law b/c no such thing as “majority” opinions.
ii. John Marshall (CJ 1801-35) founded “majority” opinions which effectually created law.
· Marshall had a nationalist vision, enhancing power of federal government over the states,
Ø McCollough v. Maryland, congress’s power under necessary & proper clause.
Ø Gibbons v. Ogden, congress’s power under commerce clause (old man ogden).
· Also enhanced power of judicial branch (Marbury v. Madison established Judicial Review.)
iii. Roger Taney (CJ 1836-64)
· Dred Scott (AA’s not citizens for purposes of jurisdiction, accelerated approach to civil war.)
· Charles River Bridge Case 16 – buried Marshall’s use of contracts clause. Allowed state of Massachusetts to abrogate a bridge monopoly. Gave states more leeway to regulate private interests.
iv. Salmon Chase (1864-73)
· Civil War amendments:
Ø 13th – abolished slavery
Ø 14th – Equal Protection / Due Process
a. Strauder v. WV – “all white juries” law struck down
b. Yick Wo v. Hopkins
Ø 15th – outlawed restriction of voting rights on basis of race
v. Morrison Waite (1874-88)
vi. Melville Fuller (1888-1910)
· Lochner v. New York – Liberty of Contract, Economy largely unregulated
vii. Edward White (1910-21)
viii. William H. Taft (1921-30)
ix. Charles Hughes (1930-41)
· 1929 – stock market crash
· 1932 – FDR elected president
· 1937 Court packing plan – “the switch in time that saved nine” – 4 lochner justices known as “the four horsemen”
x. Harlan Stone (1941-46)
· Carolene Products Footnote 4: protection of discreet and insular minorities became the focus of the court.
xi. Fred Vinson (1946-53)
xii. Earl Warren (1953-69)
xiii. Warren Burger (1969-86) Gender rights is main legacy
xiv. William Rehnquist (1986-2005)
· Federalism and separation of powers (U.S. V. Lopez)
xv. John Roberts (05- )
2. Impact litigation – Primary interest in legal reform over client’s interest.
a. Types of Rights
i. Civil Rights – common law rights to contract, transfer of property, sue
ii. Political Rights – Voting
iii. Social Rights – Public accommodations & private association
b. Plessy v. Ferguson 68, 1896
Facts: Plessy, 1/8th black and 7/8th white was ordered to sit in the black portion of a train. There was a Louisiana law that provided “equal but separate accommodations for white and colored races” and made violators criminals. Plessy sued the state on the grounds of equal protection.
Issue: Is a law which requires separation of races constitutional?
Holding: Justice Brown delivers opinion which states that constitutionality of separate but equal law in public accommodations is valid. He states that the 13th amendment was not violated by a law which merely distinguishes the races. Distinguishing does not mean infringing upon political or legal rights. Plaintiff argued that enforced separation of the races stamps the colored race with a badge of inferiority. Justice Brown wrote that this is simply because the colored race chose to put that construction upon it.
c. NAACP legal defense fund took over charge of challengin
If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.”
b. Cooper v. Aaron 101, 1958 – Supreme Court has final say as to the correct interpretation of the Constitution.
c. Jurisprudence
i. Originalism – theory based on notion of constitution as a contract. Have to figure out what the intention of the parties to the contract was.
1. Criticism on procedural grounds
a. Who’s intent?
b. How do you determine it when there were different ideas?
c. Scarce information?
d. Issue didn’t exist at the time?
2. Theoretical objection:
a. Why do we use this?
b. Wasn’t the intent of the framers to give broad language so that we may interpret it differently as time goes on?
ii. Legal Process theory – Constitution is essentially a procedural document. This theory focuses on the function of the political process, specifically access to vote / representation. As long as the process is functioning properly, the court has no reason to step in and nullify the product. (Representation-reinforcement)
1. Criticism: Sometimes, a representation-reinforcement theorist would have to make substantive determinations of value when one group’s “prejudice” is another group’s “moral principle.”
