Constitutional Law I Outline

CON LAW—MOSKOWITZ SPRING 2012

1. Judicial Review

· Article I–Congress

· Article II–Executive

· Article III–Judiciary

· Marbury

Court found that the constitution:

created authority for JR of executive acts;

Art. 3 is the ceiling of federal court jurisdiction

Congress cant expand/limit original jurisdiction of SC

Authorizes maximum original jurisdiction of fed. Courts

Can’t authorize fed. Courts to hear cases beyond what’s specified, cant get jurisdiction by consent

Congress has the power to create exceptions and regulations to SC appellate jurisdiction, but not original jurisdiction

“For every right there must be a remedy”-(but this is not always the case) sovereign immunity

Establishes authority for Judicial Review of legislative acts

Holding: Judiciary Act 1789- Unconstitutional, b/c Congress cannot allow original jurisdiction beyond the situations enumerated in the Constitution

Judicial power of the United States is extended to all cases arising under the constitution (Article III)

The constitution is the supreme law of the land – this is the very nature of the Constitution.

It is the duty of the judicial dept. to say what the law is.

· Martin – Have authority to review to State Court Decisions- Sct. Says review is necessary (in State courts) to ensure uniformity in interpreting federal law; avoids bias, expertise in the federal law.

· Cohens- Criminal DF could seek SC review when they claim a const. violation; expertise in the federal law, states hostility to enforce federal rights.

· Limits on the Sumpre Court – Interpret by social standards, text, intent, tradition

Congress – can restrict jurisdiction, cancel terms, impeach judges, change the size of the court, reverse the finding of the court through legislation

Interpretation

Originalist- Judges should confine themselves to the enforcing norms that are stated or clearly implicit in the constitution

Non-Originalist- Const. should evolve by interpretation and not only amendment

2. Protection of Civil Rights

· 9th amendment intended to protect rights not specifically enumerated in Bill of Rights

· Established Bill of Rights Applies only to Federal Government-

a. Barron, 1833 – PF sued city and the mayor for taking property in violation of the 5th amendment deprivation of property w/out just compensation;

i. 5th Amendment not applicable to the states

ii. Each state has its own constitution and can make their own laws

1. No indication 5th amendment was for the states b/c we have a very strong faith in state constitutions

b. Slaughterhouse- 1873, sued city b/c of butcher monopoly invoking 13, 14, DP, EP and P/I but the Court rejects these arguments that the apply to the states. Is afraid it will tip the balance between state and federal government

i. 13th amendment – bars slavery and involuntary servitude

1. Court says this only applies to slavery and servitude–doesn’t apply here

ii. 14th Amendment

1. Equal protection – we are being treated differently than other business that can slaughter meat

a. Court says Equal protection clause only applies to freed slaves

2. Due Process – Deprived of their liberty and property

a. Court says not a deprivation of liberty or property – it is a restraint of trade (later overruled)

3. Privileges and Immunities – being deprived of their immunities as a citizen of the US – other citizens can butcher

a. Court says the P/I protects states from denying citizens the rights of national citizens

b. Rights of national citizens – access to seaports, right to travel, access to federal courts, appeal to federal government

iii. 5th Amendment – Takings Clause – after Barron, the 5th doesn’t apply to states

iv. DISSENT: Natural and inalienable rights to be enjoyed by all not to be abridged by state laws

c. Saenz- 1999-durational requirement–PF argued state law limiting welfare benefits violated P&I clause. YES

i. P&I always been read to protect the right to travel among and b/w the states freely and says further that right to travel is a Fundamental Right

ii. And P&I protects the Right for new residents to be treated like longer term residents

iii. DISSENT: this cases isn’t about the fundamental right to travel, but a right to welfare which isn’t fundamental–state has created a good-faith residency requirement

· The Incorporation of Bill of Rights Into the Due Process Clause of the 14th Amendment

a. Theories:

i. Strict Incorporation – the entire BOR applies to the states

ii. Selective Incorporation – some, not all will be incorporated through the 14th–only those rights that are fundamental

b. The Debate centers:

i. Framers’ intent, history

ii. Federalism

iii. Appropriate judicial role

c. Current Process for recognizing fundamental rights

i. Rooted in history and tradition – Fundamental principles of liberty and justice at the base of all our civil and political institutions

ii. Whether it is a fundamental right essential to a fair trial

d. Twining – 1908 – recognized that BOR could be incorporated through the 14th – “fundamental principle or liberty and justice”

e. Duncan- 1968 PF convicted of simple battery and sought a jury trial; state law only required a jury trial for capital cases or hard labor. Is right to a jury required? YES. Summarized what is needed to be incorporated

i. This is a fundamental principle of liberty so rooted… 14th am. Guarantee that is applicable to the states

ii. Deep commitment of nation to right to jury trial in serious criminal cases

· Which Rights have been incorporated?

a. Have been incorporated :

i. 1st – establishment clause, free exercise clause, and protections of speech, press, assembly, petition

ii. 4th – search and seizures, requirement for a warrant based on probable cause; exclusionary rule, which prevents Gov from using evidence obtain in violation of 14th Amendment

iii. 5th – prohibition of double jeopardy, protection against self-incrimination, and requirement that the Gov pay just compensation when it takes private property for public use

iv. 6th – requirements for a speedy and public trial, by an impartial jury, with notice of the charges, the chance to confront adverse witnesses and to have compulsory process to obtain favorable witnesses, and to have assistance of counsel if the se

v. 8th – bail, cruel and unusual punishment

b. ** 5 provisions have not been incorporated**

i. 2nd, 3rd–quartering troops, 5th–grand jury, 7th–right to juries in civil cases in the states, 8th–prohibition of excessive fines

· Application of Civil Rights & Civil Liberties to Private Conduct: The State Action Doctrine

a. Constitution is not applicable to private conduct of individuals – exception through sect. 5 of the 14th to enforce

i. Civil Rights Cases – 1883, Full and equal enjoyment of public areas regardless of race, 2 cases brought by blacks for violations

1. Congress can’t reach the private conduct of individuals

2. BOR to prohibit government action; step too far into local jurisprudence

a. Refusal to serve blacks civil injury not a “badge of slavery”

3. DISSENT: Intent of Act was to protect blacks from discrimination… 13th amendment applies to individuals

· State Action Doctrine – Constitution only applies to the government, but the govt. can enact laws that require that private conduct meet the same standards that the const. requires of the govt. This will maintain a “zone of autonomy” for the states and promote federalism. EXCEPTIONS

a. Policy for state action – (1) preserves a zone of private autonomy (2) enhances federalism by preserving a zone of state sovereignty

· Public/Government Functions – Private entity must comply w/ const. if it is performing a task that has been traditionally, exclusively done by the govt. or public bodies

a. Policy –

i. Govt can’t avoid constitutional obligations by granting private charters

ii. Some acts are so inherently public in nature that they can be called state action

b. Marsh – 1946 Corporate owned town acting like a “regular” town w/ public center, post office, etc. JW distributing religious literature and was stopped. Is this a 1st amendment violation–YES

i. This corporate owned town is performing a task traditionally, exclusively done by the govt

ii. Court suggested a wide expansion of state action, but the Court has never gone so far to apply its reasoning

1. The more open to the public, more circumscribed his rights are–could justify all businesses

2. Balance the interests of the private property owner and the Constitutional rights of those who use it

c. Jackson -1974 Lady that had power cut off; was this illegal deprivation of property w/out DP–NO

i. No public function here b/c it is a public entity, and regulation alone wont create a public function exception–utility is not a exclusive, traditional public function

ii. Only where the private entity is producin