Constitutional Law
Wolitz
Spring 2014
INTRODUCTION
· Four Main areas of Con Law
o Judicial Review
o Federalism
o Due Process Clause (5th and 14th) à About our liberty
o Equal Protection Clause (14th) à About equality
· Schneiderman v. United States, 320 U.S. 118 (1943)
o The Court’s opinion seems to tell us that the trier of fact must not examine petitioner’s gospel to find out what kind of man he was, or even what his gospel was; that the trier of fact could not “impute” to petitioner any genuine attachment to the doctrines of these organizations whose teachings he so assiduously spread.
· Excerpt from the Opinion of Chief Justice Roberts/ NFIB v. Sebelius (2012)
o About individual mandate’s constitutionality
o Argument: The federal government does not have the power (granted to it by the constitution) to require individuals to purchase health insurance
o Argument for: The power is implicit in the commerce clause.
§ Grants congress the power to regulate commerce amongst the several states.
§ Also argued that the taxing and spending clause also allowed. (Congress can tax and spend the money on things that it thinks are needed)
o Holding (Chief Justice Roberts was the swing vote)
§ Court said that the individual was constitutional because the penalty for not getting health insurance was essentially a tax, and therefore okay under the taxing a spending clause.
§ Held that Congress’s power to “regulate Commerce” (the “Commerce Clause” Art. I, §8, cl. 3) does not extend to the regulation of economic inactivity
o Enumeration
§ There are two steps when going through the federal governments actions:
· (1) Is there an enumerated power that allows the federal gov’t to do what it wants to do?
· (2) If so, does it violate any of the Bill of Rights?
§ Enumerated powers are like a threshold. If the federal gov’t does not have the enumerated power to act, then you don’t have to get to the Bill of Rights.
o Police Power
§ Enumeration only applies to the federal gov’t.
§ States have a whole different source of authority, the inherent police power, or the general sovereign power to pass laws for the health, safety, or morals of the general population.
§ States sovereignty from the Crown, and gave up some of those powers with the enumerated powers given to the federal gov’t
· Therefore, there is no problem with Massachusetts passing something like the Affordable Health Care Act, unless it violates one of the enumerated rights granted to the people by the federal gov’t.
JUDICIAL REVIEW
· Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)
o Established Judicial Review
§ The Supreme Court has the power, implied from Article VI, § 2 of the Constitution, to review acts of Congress and if they are found repugnant to the Constitution, to declare them void.
§ Judicial Review is the authority of the courts to review decisions, actions, or omissions committed by another agency or branch of government.
o Theoretically, the three branches should be strong enough to check and balance the others. To limit the judiciary to the passive task of interpretation would be to limit its strength in the tripartite structure. Marbury served to bolster the judiciary branch making it equal to the executive and legislative branches.
o The U.S. Constitution clearly lays out in Article 3 Section 2 Clause 2 when the Supreme Court has original jurisdiction and when it has appellate jurisdiction.
o Notes
§ The constitution does not say anywhere explicitly that the Supreme Court has the power to declare any law passed by Congress unconstitutional. There is a real question if the Court has this power.
§ The executive branch has a lot of discretion in making policy decisions, but when it comes to ministerial functions, there is a zone of following the law that can be reviewed by the court.
§ By going along with the Judiciary Act, it would have essentially meant that Congress can make any law that is contrary to the constitution. It would just make the constitution like any other law. You would might as well just not have a constitution, because the whole point of it is to establish the limit the powers of the branches of the gov’t.
§ Supremacy Clause
· Federal Law, especially the Constitution is superior to all other laws, and says so itself it is law, so it is necessary for the Court to have the power to declare laws unconstitutional in order to ensure the Constitution remains superior. This is necessary due to the
§ It’s really hard to change constitutional interpretations by the Supreme Court. Only options are to amend the Constitution via Article 5 or try to win back the court through judicial appointments and have them overturn their prior ruling.
· Problems with Judicial Review
o Counter-majoritarian Difficulty:
§ The Supreme Court is not an elected body, and those 9 judges can invalidate statutes passed by Congress.
o Dead Hand Rule
§ Why should we limit ourselves to the rules of those in the past?
· Why were the other branches of gov’t okay with judicial review?
o Maybe the idea of checks and balances sounded healthy and said okay that sounds good.
o Andrew Jackson said Justice Marshall has written his opinion so let us see him enforce it, so there have been some skepticism and resistance.
o In some ways, what is so amazing about judicial review is that the other branches (usually) follow suit with the court.
· Martin v. Hunter’s Lesee, 14 U.S. (1 Wheat.) 304 (1816)
o Can the Supreme Court have appellate jurisdiction over state courts? The Court says they do, like in Marbury v. Madison, through the Judiciary Act. Virginia says the act does, but the constitution doesn’t because Virginia is sovereign.
o The courts of the United States can, without question, revise the proceedings of the executive and legislative authorities of the states, and if they are found to be contrary to the constitution, ay declare them to be of no legal validity.
o It is important for the SC to be able to have appellate jurisdiction over the state courts to ensure uniformity in federal law and the constitution.
o The appellate power of the United States does extend to cases pending in the state courts.
o The 25th section of the judiciary act is constitutional.
§ Now 28 U.S.C § 1257:
§ Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by writ of certiorari where the validity of a treaty or statute of the United States is drawn in question or where the validity of a statute of any State is drawn in question on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, or where any title, right, privilege, or immunity is specially set up or claimed under the Constitution or the treaties or statutes of, or any commission held or authority exercised under, the United States.
o It’s not the case that the federal gov’t is a creature of the states who gave it bits of power, the federal gov’t is it’s own sovereign entity and gained is power from the people. Thus, we have dual sovereignties.
o One way of reading Martin would be to say that the Court found substantive power to flow to the federal authority because of the Supremacy Clause and the Court’s location at the apex of the federal and state judicial systems. Another way of viewing the case is that the Court left tremendous responsibility and discretion concerning enforcement of substantive law, at least in the first instance, in the hands of decentralized state courts.
o Marbury and Martin and subsequent cases confirm the judiciary’s power to void federal statutes and state laws as unconstitutional.
o Notes
§ Supremacy Clause states that federal law is supreme over state law. Found in Article 6 Section 2. In Article 6, section 3, the constitution says that all judges are bound by oath or affirmation to support the constitution. If we interpret what the constitution means, then you need to listen to us.
§ State Supreme Court is the final court in a state unless it’s a federal issue, then it can go up to the SCOTUS
§ In this case, a treaty was involved, so that is a federal question so SCOTUS has jurisdiction.
· Court says that it does not have original jurisdiction over this, which is narrow and listed in the constitution.
· However, the court has appellate jurisdiction. The court has appellate jurisdiction under constitution, federal statute, and treaties. Not original jurisdiction because it is so narrow.
· State courts have the right to interpret their law anyway they want. Supreme Court wont tell them how to interpret their law, but it will tell them that their laws are unconstitutional and they cant have it.
§
· Discretionary Review by the Supreme Court
o It is not a matter of right
o 4/9 justices must agree to hear the case.
o The reasons for granting review are:
ia, because the central cause was always self-defense and hunting. BUT the prefatory clause was added to ensure that it was clear that militia would continue to exist.
· A number of state constitutions don’t have this prefatory clause, which further shows that the right is pre-existing.
· The only thing that Miller states is that the 2nd amendment only protects weapons that law abiding citizens keep around for lawful purposes.
· In the end, the operative clause doesn’t run afoul with the prefatory clause, so it works.
§ Stevens Dissent
· Text
o We each bear the right, under the prefatory clause, to protect the ability of the ordinary militias to mobilize against the fear of a federal standing army
o We’ve got individual rights to keep and bear arms for the purpose of participating in the militia.
· History/Structural
o The Second Amendment was adopted to protect the right of the people to maintain a well regulated militia. It was a response to the concern that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to state sovereignty. Neither the text of the Second Amendment nor the arguments advanced by its proponents evidence the slightest interest by the Framers in limiting any legislature’s authority to regulate private civilian uses of firearms.
· Doctrinal
o There is no indication that the Framers intended to enshrine the common law right of self-defense in the Constitution. The view in Miller that the Second Amendment protects the right to keep and bear arms for certain military purposes, but does not curtail the Legislature’s power to regulate the nonmilitary use and ownership of weapons, is both the most natural reading of the Amendment’s text and the interpretation most faithful to the history of its adoption. The majority fails to identify any new evidence supporting the view that the Amendment was intended to limit the power of Congress to regulate civilian uses of weapons.
§ Breyer Dissent
· The Second Amendment protects militia-related interests, not self-defense-related interests. Furthermore, the Amendment permits government to regulate the interests that it serves. Colonial history itself offers important examples of the kinds of gun regulation that citizens would then have thought compatible with the right to keep and bear arms, including substantial regulation of firearms in urban areas, and regulations that imposed limitations on the use of firearms for the protection of the home.
· Adoption of a true strict scrutiny standard for evaluating gun control regulations would be impossible and I would adopt an interest-balancing inquiry. In applying this kind of standard the Court normally defers to a legislature’s empirical judgment in matters where a legislature is likely to have greater expertise and greater institutional fact finding capacity.
· Makes a prudential/ethical argument. Prudential – what are the consequences? Are we going to strike own all these regulations intended for public safety? We are going to be stripping cities and states of dealing with gun violence.
· It can’t be that the constitutional right turns on what guns are typically used at that time.
· The 2nd amendment should be interpreted as we need it today in modern times for circumstances the framers could have never anticipated.
§ Notes
· Second Amendment: A well-regulate militia being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
· This was the first case to where the Court said that there is an individual right to keep and bear arms.
