Constitutional Law I Outline

Constitutional Law I-Bodensteiner-Spring 2011
 
For this exam I would each approach hypo like this:
1) what is the law being challenged?
2) what is the state gov't or fed govt doing via that law?
3) Is it constitutional – why or why not?
4) what test is needed to answer your why or why not?
 
I. Federal Judicial Power
      A. Authority for judicial review –
            1. Marbury v. Madison (1803) establishes the authority for judicial review of both federal executive and legislative acts.
                 a. Source of Power – Judiciary Act of 1789 allowed writs of mandamus (a petition to a court asking it to order a government to perform a duty) by Supreme Court
b. Does Marbury even have a right to the commission? Yes, he has a vested interest/right in the appointment.
c.  Is delivery a necessary part of appointment? Marshall says no, that once it is sealed and signed then it becomes a property right
d. Is there a legal remedy in this case? No.  But Marshall says that “the very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.”
            2. authority for judicial review of state judgments
                  a. Martin v. Hunter’s Lessee (1816) –
                  b. Cohen v. Virginia (1821) –
            3. Limits on Judicial Power
                  a. Interpretive Limits – court’s discretion – Marshall: put the law up against the const.
1) United States v. Emerson (2002) – Three basic interpretations of the 2nd Amendment:
                             a) Collective Rights – Does not apply to individuals; only recognizes the right of a state to arm its militia. Construe “people” to mean “States” or “States respectfully.”
b) Limited Individual Rights – Limited rights to individuals.  “Individual” right to bear arms can only be exercised by members of a functioning, organized state militia – i.e. – National Guard. For this to be accepted, “people” must be read as “members of a select militia”
c) Traditional Individual Rights – Right of individuals to keep and bear arms. “people” means “people”
d) Inconsistent with Miller, the 2nd Amendment protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms, such as the pistol involved here.  This is not without certain limitations as under U.S.C.
2) Silveira v. Lockyer (2003) – The court here followed and reaffirmed the “collective rights” model: the amendment protects the people’s right to maintain an effective state militia, and does not establish an individual right to own or possess firearms for personal or other use
a) Interpret the word “militia” to refer to the national army and the navy that were to be controlled by the President and Congress, and the state militias.
b) “well regulated” refers to a military force established and controlled by the government – this interpretation is reached when read in context of Shay’s rebellion.
c) “keep and bear arms” – historical documents confirm that this phrase had a military connotation at the time of the framers.
d) May a state constitutionally enact legislation regulating the possession or use of firearms? Yes.  The 2nd Amendment imposes no limitation on a State’s ability to enact legislation regulating or prohibiting the possession or use of firearms, including dangerous weapons as assault weapons.
                  b. Congressional Limits
                  c. Justiciability
II. the structure of the constitution’s protection of civil rights and civil liberties
      A. initially the court decided that the bill of rights only applied to the fed. Gov.
      B. the application of the bill of rights to the states – false starts
            1. Barron v. Mayor and City Council of Baltimore – unless state constitution says otherwise, the bill of rights did not apply to the states
            2. after the civil war, enactment of 13th, 14th, 15th amendments began to apply the bill of rights to the states
a. the Slaughterhouse Cases (1873) – very narrow interpretation; didn’t apply the privileges and immunities clause to the states; Butchers are bringing the suit against the City saying it was unconstitutional to allow the monopoly because it violated the following three things in the 14th Amendment:
1) Privileges and immunities clause: Said that they did not have to define these privileges and immunities of citizens of the U.S. which no State can abridge. The Court said that this was a meaningless clause.
2) Due Process – Cannot deprive one of life, liberty, or property without Due Process of Law.
3) Equal Protection
b. Saenz v. Roe (1999) – Do new residents to a state have the right to enjoy the same privileges and immunities enjoyed by other citizens of the same State? Yes. The privileges or immunities clause protects the right to travel and the citizen’s right to be treated equally in her new State of residence.
      1) In a broader sense, this case made it possible for courts to challenge and nullify state laws based on the privileges and immunities clause in the 14th Amendment.  This happened in 1935 with Colgate, but the ruling was overruled 5 years later in Madden. 
2) Dissent: We should endeavor to understand what the framers of the 14th Amendment thought that it meant.  And we should also consider whether the Clause should displace, rather than augment, portions of our equal protection and substantive due process jurisprudence.
      C. incorporation of the bill of rights into the due process clause
1. Burlington & Quincy Railroad Co. (1897) – the Supreme Court ruled that the Due Process Clause of the 14th Amendment prevents states from taking property without just compensation.
 
2. Twining v. New Jersey (1908) – The Court rejected a criminal defendants’ claim that a state court had violated their constitutional rights by instructing the jury that it could draw a negative inference from the Δ’s failure to testify at trial.
a) Does the 14th Amendment’s due process clause constitutionally allow the Bill of Rights to apply to state and local governments? Yes.  The Court clearly recognized the possibility that the due process clause of the Fourteenth Amendment incorporates provisions of the Bill of Rights, and thereby applies them to state and local governments.
b) But in this case the court ruled that the state court did not violate his constitutional right for them not to instruct the jury in the manner they did because that right was not incorporated into the conception of due process of law.
                 c) Cardozo argued, “principles of justice so rooted in the tradition and conscience of our people as to be ranked as fundamental” and were “implicit in the concept of ordered liberty.” – Total incorporation
3. Gitlow v. New York (1925) – Court for the first time said that the 1st Amendment’s protection of freedom of speech applies to the states through its incorporation into the Due Process Clause of the 14th Amendment.
4. Fiske v. Kansas (1927) – Court for the first time found that a state law regulating speech violated the Due Process Clause of the 14th Amendment.
5. Powell v. Alabama (1932) – A state’s denial of counsel in a capital case denied due process, thereby in essence applying the 6th Amendment to the states in capital cases.
      D. total and selective incorporation of the Bill of Rights,
            1. Total incorporationists – all of the bill of rights should be incorporated into the due process clause of the 14th (Black and Douglas)
            2. Selective incorporationists – only some of the bill of rights were sufficiently fundamental to apply to state and local gov.
                 a) Cardozo – Due Process included “principles of justice so rooted in the tradition and conscience of our people as to be ranked fundamental.
                 b) Frankfurter – due process precludes those that “offend those canons of decency and fairness which express the notions of justice of English-speaking peoples.”
            3. 5 rights not yet incorporated:
                 a) 2nd amendment – right to bear arms
                 b) 3rd amendment – quartering of soldiers
                 c) 5th amendment – right to grand jury indictment in criminal cases
                 d) 7th amendment – right to jury trial in civil cases
                 e) 8th amendment – prohibition of excessive fines
4. Palko v. Connecticut (1937) – A statute of Connecticut permitting appeals in criminal cases to be taken by the state is challenged by appellant as an infringement of the 14th Amendment of the Constitution of the United States. the 14th Amendment does not allow incorporation of the original Bill of Rights as applied to states who violate it
5. Adamson v. California (1947) – Appellant was convicted, without recommendation for mercy, by a jury in Superior Court of murder in the first degree.  There was a California law that permitted the court to comment on the absence of testimony of a Δ during trial, and for the jury to consider the comments in their decision.  Is a defendant protected by the 14th Amendment from state law that violates the Δ’s 5th Amendment rights? No.  A clause of the 5th Amendment is not made effective by the 14th Amendment as a protection against state action.  The Due Process Clause of the 14th Amendment does not draw all the rights of the federal Bill of Rights under its protection. Justice Black made some good points in his dissent.
            6. the debate over incorporation centered on three issues
                 a) history and whether the framers of the 14th amendment intended to apply the bill of rights to the states
                 b) debate over federalism. Does applying the bill of rights to the states impose a substantial set of restrictions on state and local governments?
                 c) debate over the appropriate judicial role
7. Duncan v. Louisiana (1968) – Appellant was convicted of simple battery in a Louisiana District Court.  Appellant sought trial by jury, but the Louisiana constitution granted jury trials only in cases where capital punishment or imprisonment at hard labor may be imposed.  Does the 14th Amendment’s due process clause grant a Δ the 6th Amendment right to a jury trial when a state law does not grant the same right? Yes.  The right to trial by jury in criminal cases is fundamental to the American scheme of justice, the 14th Amendment therefore guarantees a right of jury trial in all criminal cases which, were they to be tried in a federal court, would come within the 6th Amendment’s guarantee.  This right to jury trial must be respected by the States.
8. Questions to ask when deciding whether a right is protected in state actions through the 14th Amendment:
a) Is the right among those “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions”?
b) Is the right among those which is “basic in our system of jurisprudence”?
c) Is the right among those that is “a fundamental right, essential to a fair trial”?
      E. the application of the bill of rights and the constitution to private conduct
            1. the constitution’s protections of individual liberties and its requirement for equal protection apply only to the gov.
            2. Civil Rights Cases United States v. Stanley (1883) – Cases are founded on the first and second sections of the act of congress known as the “Civil Rights Act” of 1875.  there were two indictments for denying persons of color the accommodations and privileges of an inn or hotel and  two for a theater.
                 a. Does the 14th Amendment apply to private actions as well as state and local government actions?  No.  The 14th Amendment applies just to state and local actions, not to private conduct.  “The 14th Amendment is prohibitory upon the States…Individual invasion of individual rights is not the subject matter of the amendment.”  The Amendment does not invest congress with power to legislate upon subjects which are within the domain of state legislation…It does not authorize congress to create code of municipal law for the regulation of private rights.
     b. The Act of Congress in the Civil Rights Act was unconstitutional because individual invasion of individual rights is not the subject matter of the Amendment, the subject matter is government action. – What is the concept?  Federalism. 
3. Exceptions to the rule that the constitution does not apply to private rights:
                 a. 13th Amendment forbids people from being or owning slaves.
                 b. Government can enact laws that require that private conduct meet the same standards that the Constitution requires of the government.
            4. state action doctrine (consider as a procedural issue) exceptions for application to private parties
                 a. Public function – Private entity must comply with the Constitution if is performing a task that has been traditionally, exclusively done by the gover