Constitutional Law Outline
The Role of the Courts in Constitutional Interpretation
I. Judicial Review and Constitutional Structure
a. The origins and theory of judicial review
i. Marbury v. Madison: Establishment of Judicial Review
1. Power of courts to declare legislation or executive acts invalid as unconstitutional
a. Implied power of the court
2. Opinion
a. Marbury had a right to his commission.
b. Marbury had a judicially enforceable remedy because
i. Court provide a remedy for every wrong BUT
ii. Political acts of the President and cabinet done within their discretion are not reviewable by the court.
c. Marbury was not entitled to mandamus by the Supreme Court
i. The act was unconstitutional because it gave the court original jurisdiction, contrary to the Art. III grant of jurisdiction over diplomats or between two states. When a statute and the Constitution conflict,
1. Constitution, as a higher law, prevails
2. It is emphatically the province and duty of the court to say what the law is.
d. Justifications for Judicial Review
i. Inferred in a written Constitution
ii. Necessary to the judicial role of interpreting law
iii. Implied from the command of the supremacy clause that the Constitution is the supreme law of the law
1. Binding on the state courts
iv. Article III gives federal courts jurisdiction over cases arising under the Constitution
v. Implied from the fact that judges take an oath to uphold the Constitution.
ii. Judicial Review of State Statute
1. Planned Parenthood v. Casey
a. Plurality Opinion—Reasons for upholding the central holding in Roe v. Wade
i. Precedent—circumstances in Roe have not changed since that decision, thus no reason to overturn the decision.
ii. Covenant—Court stays true to the covenant, the fundamental right of all. If the court stays true, those who disagree with the outcome cannot argue that the court abandoned the covenant.
iii. Credibility—overruling Roe, absent some clear error, would undermine the judicial power
b. Dissenting Opinion—nothing in the Constitution supports the idea that abortion is a fundamental right.
i. Invalidating the PA statute removes the issue from the democratic process by cutting out the will of the people and substituting the court’s will
iii. Judicial Exclusivity in Constitutional Interpretation?
1. Cooper v. Aaron
a. Court’s power to interpret the Constitution is exclusive when the other contender is a state.
b. Less clear when the contender is congress or president
i. President has some practical discretion in enforcing Supreme Court decisions, but not absolute discretion
ii. Legislature can always reenact a statute that has been invalidated by Court within constitutional limits
b. Power to Review State Court Judgments
i. Martin v. Hunter’s Lessee
1. Court has the power to review federal constitutional decisions of a state’s highest court
a. Article III grants appellate jurisdiction over all cases arising under the Constitution
i. The Court must decide those that arise from the state courts
ii. The supremacy clause implies that state courts will decide federal constitutional issues
iii. Since Article III does not distinguish between constitutional cases originating in federal court, and those originating in state court, it is implied that the Supreme Court has appellate review over those originating in state court.
b. There is no state sovereignty over constitutional interpretation
i. The Constitution abrogates state sovereignty in a number of ways
ii. Supremacy clause indicates that judges are bound by the Constitution
c. Uniformity
i. If every state court could interpret the Constitution its own way, there would be 50 constitutions, not one
c. Adequate and Independent State Grounds Doctrine
i. Michigan v. Long
1. Court will not review state court judgments that rest on adequate and independent state grounds
a. Insulates state judicial decisions from Supreme Court review
b. Preserves state sovereignty
2. The Supreme Court will presume that a state court, when deciding cases that present both federal and state law issues, is deciding the case based on federal law UNLESS the state court includes in its opinion a plain statement of its reliance solely on state law.
a. State constitutions usually afford more protection than the minimum safeguards imposed by the Federal Constitution.
b. EXAMPLE—Warrantless searches of garbage bags on the street are valid under federal law. If a state Supreme Court rules that warrantless searches of garbage bags violates the state Constitution, the Supreme Court is barred from reviewing the case.
3. Application of the Doctrine—The Supreme Court may still decide that the state law was not independent of federal law or was not an adequate basis for a decision, even if the state court includes the “reliance statement” in its opinion.
a. The decision must Adequately rest on state law.
i. EXAMPLE of inadequate decision—Where state procedural rule bars consideration of a federal claim, state law ground for decision is inadequate if
1. Law was created with the intent of barring the federal claim OR
2. Unreasonable interference with federal rights.
b. The decision must be Independent from federal law.
i. EXAMPLE of decision that is not independent—Where state court finds that a state law violates the state Constitution but treats the substantive contents of the state Constitution as defined by the Federal Constitution.
1. State determines state tax liability by using a federal standard to measure the claim
2. Distinguish opinions that cite federal cases as a guide, not to reach an outcome.
d. The Pros and Cons of Judicial Review
i. Counter-Majoritarian Role
1. Congress represents the majority and is often intolerant of political minorities
2. The court is better equipped to decide validity of legislation because the court is immune from political pressure
a. Constitutional rights often intend to protect political minorities
ii. Stability
1. Judiciary stabilizes the meaning of the Constitution among the three branches of government
iii. Antidemocratic
1. Judges are not politically accountable
2. Country would be more democratic without judicial review
iv. Entrenched Error
1. Difficult to correct the court’s mistakes in judicial interpretation of Constitution
2. Congress and president cannot ignore the court with impunity
3. Avenues for correction
a. Persuade the court to change its mind (requires electing new judges)
b. Impeachment (rare)
c. Constitutional amendment (difficult)
e. Methods of Constitutional Interpretation
i. Interpretation or Imagination
1. Calder v. Bull
a. Interpretivists versus Non-Interpretivists
i. Interpretivists see judicial review as interpretation of the written text
ii. Noninterpretivists mirror the present sense of fundamental justice
ii. Textual
1. Drawn from the present sense of the words of the provision
iii. Historical
1. Originalism
a. Original Intent of the Drafters
i. Author’s intent behind the constitutional provision
b. Original Meaning of the Text
i. Textual Meaning at the time of Adoption
c. Vectors of History
i. Contemporaneous Definition of the Terms
1. (SCALIA) Specific level of identifying relevant tradition OR
2. (BRENNAN) General level of identifying relevant tradition
iv. Structural Arguments
1. Results are implicit in the structure of government and the relationships created by the Constitution among citizens and governments
2. Postulates that fill gaps created by the Constitution
v. Doctrinal Arguments
1. Principles derived from Precedent
vi. Prudential Arguments
1. Advancing particular doctrines according to practical use of the Court in particular ways
vii. Cultural Arguments
1. Widely shared cultural norms—moral concepts of justice, fairness and human autonomy
f. The Uneven Nature of Judicial Review: Tiered Review and Unequal Status of Constitutional Claims
i. Minimal Scrutiny or Rational Basis Review
1. Burden of proof falls on the challenger to prove that the law has no rational relationship to a legitimate state interest
a. Legitimate state interest is an interest that is otherwise lawful.
b. Rational relationship means that there is a plausible connection between the law and the state
n substance a command to decide the case in a prescribed way
iv. Limitations on Congressional Power to Curtail the JD of ALL Federal Courts
1. United States v. Klein—Claim for compensation from the federal government for destroyed property by the union army during the civil war. By law, compensation only due to those who were loyal to the US during the civil war. Klein got a pardon following the war, and had proven his loyalty in lower federal courts by relying upon a line of cases that held that recipients of such pardons were conclusively presumed loyal to the US. Pending appeal in the Court, congress enacted legislation that provided that recipients of general pardons were conclusively deemed disloyal, and directed federal courts to dismiss the claim for want of jurisdiction. Court struck down the law.
a. Separation of powers provides that no branch of the federal government may usurp the essential function of any other branch.
b. Congress may alter the substantive law to be enforced by federal courts, and may specify the rules of evidence or procedure to be applied by those courts, but congress CANNOT direct the courts how to decide cases.
i. If congress wants to change the rules, it must do so generally, by a law that applies with equal force to all litigants.
ii. The problem here was that congress wanted to preserve the existing substantive and procedural law BUT wanted to command the courts on what to infer from the evidence they considered.
c. Justiciability: The Proper Role of Federal Courts
i. Advisory Opinions
1. Article III section 2 limits federal judicial power to cases or controversies.
2. Court may not render advisory opinions
a. Maintains the separation of judicial and executive power
b. Maintains the importance of deciding only cases that have concrete adversaries in sharp conflict over real disputes.
c. Dangers of deciding abstractions is
i. Lack of zealous advocacy for both sides of the question AND
ii. Possibility of overbroad decision produced by the absence of a real-world application of the issue that narrows the conflict.
3. Correspondence of Jefferson and the Justices
a. The lines of separation drawn by the Constitution between the three departments of government afford strong arguments against the propriety of advisory opinions
i. Article II empowers the president to seek advice from heads of departments.
ii. Therefore, the court has no place to advise the president
b. Hayburn’s Case—court struck down a statute and refused to declare whether war veterans were eligible for pension because the statute assigned nonjudicial duties to the court.
c. Waterman Corp.—court held that congress had impermissibly demanded advisory opinions from the federal courts by requiring courts to review the award of international air routes.
4. Declaratory Judgments
a. Not advisory opinions so long as the controversy is sufficiently concrete to make the court’s judgment a final disposition of the matter.
ii. Standing to Sue
1. Constitutional Core of Standing
a. Injury in Fact
i. Must be a concrete and particularized injury
ii. Actual or Imminent
b. Causation
i. Caused by or fairly traceable to the D’s actions complained of
ii. Not the result of a 3rd party not before the court
c. Redressibility
i. Relief sought is obtainable by the courts
