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Constitutional Law I
University of Toledo School of Law
Strang, Lee J.

CONSTITUTIONAL LAW I OUTLINE (STRANG) – SPRING 2016

OVERVIEW AND HISTORY
THE FUNCTIONS OF THE CONSTITUTION
The Constitution creates the U.S. federal government.
The federal government consists of three branches, each with enumerated powers, to which it is limited.
○    Separation of powers​ creates a system of ​checks and balance​.
The Constitution establishes a system of federalism.
A fundamental aim of the constitutional scheme is to protect fundamental rights.
THE RATIONALE FOR THE CONSTITUTION
The Constitution is unique. Britain has no written constitution.
Why the different approach? Some advantages of the American constitution:
A constitution is more difficult to change, whereas statutes can be modified by mere legislative action. This better protects from arbitrary acts of tyranny and better serves in the protection of rights.
○    The constitution embodies society’s attempt to protect itself against itself. The text enumerates basic values—regular elections, separation of powers, individual rights, equality—and makes change or departure very difficult.  Thus, it prevents passions of the moment from replacing important social ideals.
THE DECLARATION OF INDEPENDENCE
The Declaration of Independence has no binding legal authority.
It is often invoked by courts because the text and its list of grievances against the British Crown because of violation of “inalienable rights” foreshadow protections placed in the Constitution, especially the Bill of Rights. Thus, it provides a general context for understanding the aims of the Constitution.
THE ARTICLES OF CONFEDERATION
The Articles of Confederation served as the first constitution. It created the United States as a confederation of sovereign states with a very weak national government. It was replaced because it was ineffective and caused problems, among which were:
The national government’s power were limited to what was “expressly” granted
○    The national government consisted of only a unicameral legislature. The lack of an executive or judicial branch meant there was no way to ensure the states complied with laws adopted by Congress;
○   Congress had no power to tax (without state agreement);
○    Congress could not regulate commerce among the states; ○   The states could coin their own money, which triggered inflation; ○           Governance inadequacies resulted in civil unrest and violence.
CONSTITUTIONAL CONVENTION
Purpose of the Convention
The Convention sought to correct perceived problems with the government under
the Articles of Confederation.
Ratification Debates
○   The Federalists 
■    Supported ratification because it made national governance effective and contained sufficient safeguards to protect against tyranny.
■    Under the name “Publius,” a series of essays (the Federalist Papers) were written in support of ratification by Madison, Hamilton, and John Jay.
○   The Anti-Federalists
■    Opposed ratification because a strong central government was perceived as a threat to state sovereignty and individual liberties.
■    Under the name “Brutus,” several essays were written to dissuade the public of federalist arguments.
THE BILL OF RIGHTS
Few parts of the Constitution, aside from the Bill of Rights, directly pertain to rights.
A concern for anti-federalists was the Constitution’s failure to enumerate rights. Federalists had the opposite concern, i.e., enumerating some rights might be seen as implicitly denying the existence of other rights.
○    This was resolved by the Ninth Amendment: “Enumeration…of certain rights, shall not be construed to deny or disparage others retained by the people.”
The first ten amendments were enacted as a concession to the anti-federalists.
CONSTITUTIONAL INTERPRETATION & FORMS OF ARGUMENT
METHODS OF ANALYSIS
Textualism
First look at the text itself if possible, the judicial inquiry should end at this step if a plain meaning can be ascertained.
■  A major drawback is ambiguity in meaning, e.g., “cruel and unusual.”
Originalism (Historical) 
To resolve ambiguity, look at either the intent of the Framers or the meaning of the terms extant at the time of the Constitution’s adoption for interpretive guidance.
■   Original Intent
●    Any interpretation should align with what was ​subjectively ​meant by the Framers. Their intent can be ascertained by looking at ratification debates, the Federalist Papers, etc. 
○    A major drawback is the question of who’s intent? ​The Constitution was a “balancing act.” Though it earned majority support, it was for a variety of reasons.​ Collective intent is hard to judge, if it even exists at all.
■   Original Meaning 
Any interpretation should reflect what a reasonable person living at the time would have declared the ordinary meaning to be.
○    The advantage to this approach is supported by​ terms of art used in the Constitution that already had particular meaning in law, e.g., ​“ex post facto”​ and ​“due process.” 
○    This ​objective ​approach allows more evidence in discovering what a word meant (one can look at any contemporary text) as opposed to attempting to judge collective intent. 
Structural Inferences
○    While there is no “Separation of Powers Clause,” in the case of ambiguity, arguments may be premised on the organization of the Constitution and structural ideas implicit in the text as to what interpretation is required.
■   Structural Principles 
(1) Writtenness
(2) Separation of Powers
(3) Checks and Balances
(4) Federalism
(5) Limited and Enumerated Powers
■   This mode of analysis is generally approached in two ways:
(1) Formalism: Power is strictly divided between the branches thus, any act by a branch contrary to this principle is unconstitutional.
(2) Functionalism: A little encroachment may be tolerable provided that there is no usurpation by one branch of powers assigned to another, no branch aggrandizes its power at the expense of another, and the ability of a branch to carry out its duties is not compromised.
Representation-reinforcing (Political Theory)
○   Interpretations should advance democracy and the rights of the people. 
Conventional Morality (Social Mores)
Interpretations should be in harmony with the public sentiment on an issue, allowing the opinion of ordinary people some level of control or influence, so the law reflects their aspirations and ideals (“popular constitutionalism”).
Critical Morality (Natural Law)
Interpretation should reflects the moral law, i.e., unjust laws are not laws. A majority opinion is not necessarily the right one.
Precedent
Courts should follow an interpretive standard already adopted on an issue. However, courts are free to reverse or to amend prior rules of its own or courts below.
Tradition
Longstanding customs that have occurred without any opposition for a significant period of time, should be given weight in constitutional interpretation.

n (appellate) or even abolish them.
(2) The existence of lower federal courts is constitutionally required in some cases, given present conditions. Limits on jurisdiction or abolishing courts is void whenever it exceeds constitutional limits.
ELEVENTH AMENDMENT LIMITATIONS ON JUDICIAL POWER
The Eleventh Amendment
○    A major limit of federal judicial power is the doctrine of sovereign immunity. The Eleventh Amendment prohibits suits in law and equity against a state in federal court, except when:
■   the state has consented to allow the lawsuit in federal court;
■   the plaintiff is the U.S. or another state; and
■    Congress has clearly granted federal courts the authority to hear a specific type of damage action under the Fourteenth Amendment.
○    The Eleventh Amendment precludes suits against a state only when the state is actually named as the defendant. It does not preclude suits against state officers for injunctive relief ​only​, even when the remedy will enjoin the implementation of an official state policy. (E​x parte Young​).
Competing Interpretations of the Eleventh Amendment
○    It is only a repudiation of C​hisolm v. Georgia​ , i.e., no diversity suits of law and equity​             against a state (narrow view).
○   It is a reaffirmation of the principle of sovereign immunity (broad view).
OTHER LIMITATIONS: THE JUSTICIABILITY DOCTRINES
The justiciability doctrines are a series of principles used to determine which cases federal courts can hear and which must be dismissed.
These doctrines aid federal courts in achieving three important goals:
Limiting review to cases and controversies (Constitutional Requirements)
○   Avoid friction with the other branches and the states; and 
○    Limits review to cases that are best suited for judicial resolution. (​Prudential Requirements​).
No Advisory Opinions
Federal courts cannot issue advisory opinions or answer hypothetical constitutional questions. Courts will only look at cases where there is:
■   (1) An actual dispute between adverse litigants; and
■  (2) There is a substantial likelihood that a court decision will have effect.
Standing (Who Can Litigate?)
○   Constitutional Standing
■    The Petitioner must have demonstrate their significant stake in the controversy by showing: 
●   (1) ​Injury-in-fact
○    A direct, personal injury, actual or imminent, caused by the challenged conduct that is real, not merely conjectural or hypothetical.
(2) ​Causation
The injury must be “fairly traceable” to the conduct.
(3) ​Redressability
A favorable court decision must be able to remedy the injury.