C O N S T I T U T I O N A L L A W
Class Information:
· Subject: Constitutional Law
· Semester: Spring 2014
· Professor: Raban, Ofer
· Book: Sullivan & Feldman, Constitutional Law 18th ed. 2013; ISBN 978-1609303761
I. The Constitution
A. Effect of the Constitution
· Establishes the federal government and its 3 branches
· Regulates the relationships between the states and the federal government.
B. Branches of government created.
· Article I, Section I – Creates Congress and grants legislative powers.
o Legislative body can only legislate pursuant to its granted powers.
· Article II, Section I – Creates the presidency and grants executive powers.
· Article III, Section I – Creates the Supreme Court and grants judicial powers.
o Doesn’t establish lower federal courts, but give Congress power to do so.
C. Individual rights granted.
· Habeas Corpus is guaranteed
· Bills of attainder – no laws declaring a group guilty of a crime
· Ex post facto laws – laws that punish conduct that was legal when it was done.
· Bill of Rights – First ten amendments.
o Ensured the ratification of the constitution by restraining tyrannical power.
D. Why have a constitution?
· Articles of Confederation insufficient to resolve issues between the states.
o AoC weak federal gov’t was going to dissolve.
o Established executive and judicial branches – absent in the Articles.
o Intended to increase the power of the federal gov’t.
· Protects the people from federal and state government
E. Where does the federal gov’t / constitution derive its power?
· Article VII is where the constitution derives its power.
· The constitution can be looked at as some sort of treaty between the states.
· The powers the federal government has are enumerated.
o In order to regulate any area of the law the federal government must point to the area they are granted power
o Any action of congress derives from its authority from one of these granted powers.
F. Separation of Powers
· Divides the government into three independent branches.
o Prevents the abuse of power by preventing the concentration of power.
· “Freedom is abolished and totalitarian powers prevail whenever any individual or group controls any two of the three powers.” – Montesquier (1748)
o Division of power guards against the abuse of power. Framers of the constitution were familiar w/ Montesquier’s writings.
· Structure of the separation of powers is inherent in the construction of the constitution – Articles I, II, and III.
· Formalistic separation of powers analysis
o Regards the different branches as engaged in totally separate functions
o Easy to detect what is an executive action, judicial action…
· Functional separation of powers analysis
o More nuanced view – more accurate
o Functions of the branches are intermingled
Not easy to tell an executive action from a legislative action….. Lots of overlaps.
o Question should be: Is this an abuse of power? (what the constitution was concerned with)
II. The Federal Judicial Power
Judicial Review
The Constitution is silent as to whether the federal courts have the authority to engage in judicial review. This authority – to review the constitutionality of federal executive and legislative acts was established in Marbury.
Why have judicial review?
Congress itself could judge the constitutionality of its enactments.
This is no real limit if it is self-determined. Can decide the extent of their own powers.
· Need judiciary to limit power of the political branches.
o The supreme court does not make the laws
o Judiciary is the weakest branch (no purse or sword).
o Incredible power that we should make sure it resides with unelected officials – independent of the electorate.
Problems with judicial review?
· There is nothing in the idea of the constitution that requires judicial review.
o English courts never had this power.
o Only in the US can you get a traffic ticket thrown out in a trial court for being unconstitutional
· Deciding what the constitution means is difficult and vague. To decide what the constitution requires necessitates discretion.
· Elected judges and independent judges make decisions differently.
· Judges think it is their job to decide what the law is.
o This obscures the fact that judges are allowed to make political judgments about what the constitution means.
o Problem w/ unelected officials having this power.
Judicial review is correctly placed in the hands of the judiciary
· Checks and balances: preventing abuse of power by preventing the concentration of power in one branch of government.
· Independence of the judiciary: legislatures may be tempted to violate the Constitution whenever it is popular to do so.
· Different methodology that judges employ, as opposed to politicians.
o Political pressures are too large for politicians to vote not along party lines and along constitutional lines – ex. Impeachment of Clinton
o Judges need to justify anything they write down, politicians do not have to – they just can say that their voters think that, they can contradict themselves.
· Judges jobs require them to justify their positions and remain consistent.
Federal courts have the authority to review constitutionality of federal executive and legislative acts.
Marbury v. Madison (1803) [p.2]
F: After Jefferson wins the election in 1800 lame-duck Adams decides to pack the judiciary. Marbury nominated and confirmed as a justice of the peace but Marshall (secretary of state and chief justice) forgot to deliver the commission. Marbury brings suit to compel – writ of mandamus.
I: Does the Supreme Court have the power to hear this case?
· Original Jurisdiction – Authority to hear a case for the first time
· Appellate Jurisdiction – Authority to review a decision decided in a lower court.
o Court says this is the jx it has here b/
f the court to render judgments – issue of separation of powers
· Cases are better decided when there are zealous advocates on both sides.
o Results in a clearer decision when there are stakes; the nature of our adversarial system.
· Court gets the benefit of hearing from people who were actually affected by the case.
· Develops from encounter with reality. Not from sitting on the sofa and theorizing.
Advisory Opinions
(Constitutional)
· The constitution does not give jx over anything that is not a case or a controversy.
· Constitutional issues should not be determined in friendly nonadversary proceedings.
· In order to be concrete:
o Must be an actual dispute between adverse litigants
o Must be a substantial likelihood that a federal court decisions in favor of a claimant will bring about some change or have some effect.
Standing
(Constitutional and Prudential)
Is this person the proper party to bring a matter to court?
Constitutional Elements:
1. Injury
o “in fact” of a legally-protected interest which is:
§ Concrete and particularized; and
§ “actual or imminent” – not conjectural or hypothetical
2. Causation
o Must be a causal link b/t challenged conduct and the injury.
3. Redressability
o Decision should likely (not speculative) be able to redress party’s injury.
Prudential Limits: [p.47]
· No third-party standing
· No generalized grievances.
o Taxpayer complaint about public spending not sufficient injury. (Exception Flast.)
· No suits outside a law’s zone of interest.
Congress cannot remove constitutional standing requirements.
Lujan v. Defenders of Wildlife (1992) [p.36]
F: π sues wildlife secretary under citizen-suit provision to compel animal regulations. π uses “citizen-suit” provision. π argues they can’t see elephants in future if habitat isn’t preserved – aesthetic harm.
H: π has no standing b/c lacks injury and redressability. π must show concrete, personal injury.
“Citizen-suit” provision not constitutional here.
However, “citizen-suit” provision may work if Congress:
· Identified the injury it seeks to vindicate; and
· Relates the injury to the class of persons entitled to bring suit.
R: Aesthetic issue is a valid harm, but there is no injury b/c the harm was not imminent.
· Had π purchased an airline ticket it is more likely that injury element could be met.
