CONSTITUTIONAL LAW I, WINTER 2011, PROFESSOR SEDLER
I. NATURE AND SCOPE OF JUDICIAL REVIEW
A. ORIGINS, EARLY CHALLENGES, AND CONTINUING CONTROVERSY
1. Constitutional Doctrine
a. Doctrines is the result of decision making over a period of years.
b. Don't have the kind of clear answers however, as you might in other law.
c. You have to learn what that doctrine is. It is what lawyers and judges use, and the Supreme Court uses.
i. IF you have to make an argument that it violates constitution:
· Important to state doctrine, apply doctrine to the facts, and then give reasons in support of the argument and conclusion.
2.The Role of the Supreme Court in Interpreting the Constitution
a. Supreme court decides about 70 cases each year.
i. Like any other court the justices try to reach consensus.
ii. The overwhelming number of cases are not constitutional.
iii. Maybe 25% involve constitutional questions, and increasing number involve criminal procedure.
b. The largest number of decisions are unanimous or near unanimous. Somewhere in 60% or more. Why?
i. When the court decides to hear the case, all of the justices usually agree
c. Supreme Court jurisdiction is limited to cases and controversies, where 2 parties have adverse legal interests. It decides cases between the parties, and thus issues opinion.
i. Court usually asks a lot about the facts.
ii. Questions don’t really differ.
iii. They decide case before it, but function of the court is to define the meaning of the constitution, and to decide questions of federal law.
iv. The supreme court is a court that operates as a court.
3.The Federal Judiciary is SUPREME
COOPER v. AARON (p. 18)
Some states tried to ignore Brown v. Board, Arkansas contended since it was not a part to the litigation in the Brown ruling, it was not bound by the decision
RULE: ARTICLE VI of the Constitution makes the Constitution the “supreme law of the land”
HOLDING: Marbury declared that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our Constitutional system.
a. Important to understand how lawyers use the Constitution to challenge the law
b. Can’t just go to Court and say Judge, here is the new law, we want to challenge it as unconstitutional
i. Need a plaintiff with Standing
· If no standing, no case or controversy
¨ Gov will always use this as 1st line of defense to get dismissal
B. THE FIRST CONSTITUTIONAL DOCUMENT
1.The Declaration of Independence
a. Prior to declaration, all states were simply colonies
b. This is the first Constitutioanl document because it created states
i. A state is a geographic unit with laws
c. This made each state sovereign, and have its own system of law
d. American states do not depend on the Federal Constittuion for power,
i. State sovereignty comes from the declaration
a. Sovereignty over Foreign affairs devolved on the Union of States that was waging the revolutionary war, and concluded the peace with Great Britain.
b. When the constitution came into being, that government got the foreign affairs power that became an inherent federal power.
c. States have the general regulatory and taxation power, and cover domestic matters. Except as a particular exercise where Federal system takes it away.
C. THE CREATION OF THE CONSTITUTION
1. 1787 “We the People” comes from the people
2.We thought the Articles of Confederation No good
a. Met to amend
i. Decided better to just start all over
3.White Male property owners
a. 13th Amendment prohibited Slavery
b. 14th Amendment due process, all are citizens
i. This was to be certain children of slaves became citizens
ii. Excludes diplomats and native American tribes with language subject to the jurisdiction of
c. Congress has the power to expand citizenship
d. 19th Amendment- Women able to vote
e. 26th Amendment- 18 and older vote
4.Constitutional theory and the states
a. Originally did not touch states, related to Federal Power
b. ARTVI§2 In the event of a conflict of federal and state power, federal power prevails.
i. There were limits on the states:
· Limits on the states
· Printing Money
· Entering treaties
c. In theory, Federal Government is one of enumerated powers
i. States don't need authorizing unless prohibited by Federal
· All powers not denied are reserved to the states
D. FUNCTIONS OF THE CONSTITUTION
1.Federalism- Allocation of Power
a. Federal Power
b. State power
2.Separation of Powers
a. Separation between the separate branches of government
3.Individual Rights Component
a. Limitations on the exercise of power designed to protect individual rights
i. Habeas Corpus
b. Bill of Rights
c. 14th Amednement
i. Due Process, guarantees of most things in the Bill of Rights
E. JUDICIAL REVIEW
1. Before a lawyer litigates a case, MUST HAVE STANDING
2.State Courts have the responsibility under the supremacy clause to supply the provisions of the constitution to the cases that come before them.
3.What emerges is a decision of the court.
a. Constitutional law is the method.
i. When court renders a decision, it becomes a precedent that is to be applied or distinguished, or could be extended.
· We want the holding, and the precedent, and that is where we get our doctrine.
4.What is the decision of the Court?
a. 4 affirmed broad grounds
b. 1 affirmed narrow grounds
c. 4 Reverse
i. YOU LOOK FOR THE NARROWEST POINT FOR THE HOLDING
5.The Court system in the United States
a. Dual Court system of state courts and federal courts
i. State Courts get power from state sovereignty which derives from the American Constitutional System
ii. Federal Courts set up by judiciary act, District Courts, Federal Courts, of Appeal, and at the top is the US Supreme Court.
· While the Supreme Court is the final word on Appeals, it can also hear issues form State Courts, that create constitutional questions.
¨ JURISDICTION: ART III, §2, cl. 2 In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
¨ Federal Courts have jurisdiction between Citizens of different states, and on Constitutional issues
MARBURY v. MADISON (p. 1) (whether the Court has power to invalidate action of Congress)
Lame duck Adams tried to reward federalists with judicial appointments. John Marshall failed to deliver the commission. Marbury seeks writ of mandamus in Supreme Court against Madison, now Secretary of State. Marshall presides (maybe he should have recused himself). Marbury is properly bringing his suit in Federal Court, but not the Supreme Court.
· STATUTE AT ISSUE: Judiciary Act of 1789 Supreme court Jurisdiction to issue writs of mandamus in cases warranted by the principles and usages of law. This clause directly conflicts with Art III, §2, cl 2.
o MARBURY: There are no negative or restrictive words in ART III, §2, cl 2. so legislature has the power to assign original jurisdiction to the court
HOLDING: It cannot be presumed that any clause in the Constitution is intended to be without effect; and therefore, such a construction is inadmissible, unless the words require it. (why else would Congress have enumerated).
· ISSUE: Can the court exercise the jurisdiction the Act confers, even though it is unconstitutional?
o MARBURY: Constitution does not provide judicial review (2) Violates separation of powers
HOLDING: The constitution is a superior paramount law, unchangeable by ordinary means, and an act of the legislature, repugnant to the constitution, is VOID.
· Does he have the right to writ? Yes
· Does it have jurisdiction to issue the writ? No
1.THE TEXT IS ALWAYS THE STARTING POINT FOR CONSTITUTIONAL LITIGATION
2.JUDCIAL REVIEW IS REALLY SUPREMACY
a. This is contrary to separation of powers, which proceeds the branches are co-equal.
i. If Congress enacts a law that is unconstitutional, fault is attributable to the legislature, and on it the responsibility rests.
ii. Court is superior to the other two branches.
· Jefferson says the opinion in Marbury, makes the Judiciary a despotic branch..
b. How to justify judicial review?
i. It would defeat the purpose of the constitution if the Congress could simply pass unconstitutional acts
· Every branch has the duty to say what the law is: Statement is often repeated. (think about oath of office)
¨ Court says they can declare what the law is.
3.Marshall talks about the essence of judicial duty, the written constitution must be superior to an ordinary law.
a. If they both conflict, then the court has to follow the constitution and not the law.
i. Argument for flaw: It assumes that the court has power to declare act unconstitutional. No necessary correlation between written constitution, and power of judicial review.
· Some other countries have no judicial review.
4.Why didn’t they just throw this case out, rather than deciding the Constitutional Question?
a. There is a policy of avoiding unnecessary constitutional adjudication.
i. SO, where there is a non-constitutional question and a constitutional question in the same case, they should decide the non-constitutional question first, and then constitutional question.
· Thus, if Marbury was not entitled to the writ, the constitutional issue would not be decided
5.Where a statute is seemingly in conflict with the constitution, is it possible to give an interpretation of the statute that avoids the constitutional question.
a. How could you avoid this question: You could say this is an appeal……an appellate court can issue a writ of mandamus
i. The court could have avoided the constitutional question by interpreting the statute as not authorizing Marbury’s mandamus action.
· If that was the case, Marbury’s case would have been dismissed for want of jurisdiction under the statute.
b. Make 2 arguments:
i. 1.) the statute does not apply
ii. 2.) IF the statute does apply, it violates the constitution
c. Where there is a constitutional question, the court should decide it on the narrowest constitutional grounds. Roe v. Wade did not have to go as far as it did.
i. All racial segregation in education is uncon
ii. All racial segregation in higher ed is uncon.
iii. All racial segrefation in law schools is uncon.
6.THREE FACES OF MARBURY
a. The Private Rights Face
i. Judicial review gives federal judges, who are not directly accountable to the electorate, a power that is potentially threatening to more representative branches of the government, and to political democracy
ii. Justice claim no general authority to resolve constitutional issue that might arise in American politics
· Rather, Marbury’s reasoning grounds the exercise of judicial review in its need to decide the case before it
iii. The Private Rights Model of Constitutional Adjudication- Courts have no warrant to decide constitutional issues except as necessary to adjudicate a concrete dispute
b. The Special Functions Face (Public Rights Model)
i. It is emphatically the province and duty of the judicial department to say what the law is
ii. Courts should provide safeguards against constitutional violation by other branches, even in cases that do not involve the kinds of private rights and material injuries that typically underlie suits at common law
· There is a public interest, appropriately enforced through public rights- litigation, in ensuring official conformity to legal and especially constitutional norms
c. The Political or Prudential Face
i. Courts must sometimes recede from the conflict with the political branches or with aroused public opinion in order to maintain its prestige and thus its power
7.Marshall never deals with the fundamental question of why the court should have the power to declare a law of Congress unconstitutional.
a. It would not be inconsistent for the court to have held the constitution does not recognize judicial review.
B. DISPUTE RESOLUTION OR PRIVATE RIGHTS MODEL
1.Function of courts is exclusively to resolve right of parties before the in context of traditionally structured lawsuits involving specifically injured plaintiffs seeking relief from specific wrongdoers
a. Marbury supports this because:
i. Found power of constitutional exposition to derive from “Case or controversy” before it
ii. Marshall declared proving of the Court is solely to decide on the rights of individuals
b. Benefits of the view:
i. Provides concrete factual framing that both narrows the issues presented for resolution and helps to make vivid their stakes
ii. It keeps the judicial role within historically accepted bounds and preserves separation of powers by preventing the judiciary from broadly interfering with the action of the legislative and executive branches
C. SPECIAL FUNCTIONS OR PUBLIC RIGHTS MODEL
1.It is the special function of the Court to make sure that other branches of government adhere to constitutional limitation on their power, to enforce frequently share rights of the public as a whole
a. Marbury supports this becase
i. It is emphatically the province and the duty of the judicial department to say what the law is
ii. Spoke of limited government
b. To a significant extent this view has been adopted
D. WHERE ARE WE TODAY?
1.IF YOU ARE A GOVERNMENT LAWYER, YOU DON'T WANT TO GET TO THE MERITS. YOU DON'T WANT THE COURT TO HEAR THE CASE.
a. This is identifying the justicability grounds
i. Judicial review is impacted by justicability issues.
2.Most Constitutional litigation follows the public rights model
a. The case is brought as a public action to resolve ideological concerns of a group rather than an individual
i. PUBLIC RIGHTS: Court has special function to interpret constitution……
· BUT special function or not, jurisdiction is limited by ART III §2 cl. 2 to cases and controversies
3.CASES OR CONTROVERSIES
a. This means 2 parties with adverse legal interests.
i. And that is the private rights model.
· Public rights model, but because of case or controversy provision, the process of constitutional litigation is more akin to the private rights model.
¨ EX: ACLU cant allege violation of Civil Liberties on the grounds it is an organization there to protect civil liberties.
4.YOU NEED A PLAINTIFF
a. Need to find someone whose rights have been violated.
i. Imagine drug addict wants welfare but there is random drug testing, Who is going to be your plaintiff?
E. ADVISORY OPINIONS AND EXECUTIVE REVISION
1.Federal courts cannot give advisory opinions because there is no case or controversy.
a. There are not two parties with adverse opinions.
b. Federal courts cannot give advisory opinions because the constitutional jurisdiction is limited to cases or controversies, an essential ingredient of which is 2 parties with adverse legal interests.
2.What does advisory opinion include?
a. Any judgment subject to review by a co-equal branch of government
b. Advice to a co-equal branch prior to other branch’s contemplated action (pre-enactment review)
c. Supreme Court review of any state judgment for which there is or may be an adequate and independent state ground of decision
d. Any opinion, or portion thereof, not truly necessary to the disposition of the case at bar (dicta)
e. Any decision on the merits of a case that is moot or unripe or in which one of the parties lacks standing
3.How about a declaratory judgment act?
a. No problem because it is making a judgment to resolve the controversy between the two parties with adverse legal interests.
F. EXECUTIVE AND LEGISLATIVE REVISION
1.Closes related to prohibition against advisory opinions is doctrine, often seen as barring judicial judgments that are subject to executive or legislative revision
2.Principal of finality of judgment: The function of the court under Article III is to decide cases.
a. If the decisions of the court is subject to executive revision, as in the HAYBURNS CASE, then it is not final, and cannot be made.
HAYBURNS CASE (p. 1549)(barring judicial judgments subject to legislative revision)
Federal pensions act charged federal circuits with determining whether applicants were qualified.
RULE: Judicial independence requires ART III court not be subject to enlistment by Congress or Executive to act as subordinates to two branches in the performance of their characteristic functions.
HOLDING: Business was not properly judicial; the possibility of executive and legislative revision derives the judicial determinations of the finality required by ART III.
PLAUT v. SPENDTHRIFT FARM, INC (p. 1549)(damages)
HOLDING: Invaldiated statute purporting to re-open final judgments that had dismissed suits for damages as time barred
MILLER v. FRENCH (p. 1549)(injunctive remedy)
HOLDING: Prospective relief IS subject to the continuing supervisory jurisdiction of the court, and therefore MAY be altered according to subsequent changes in the law.