Con Law 1
Prof. Sedler
Spring 2010
Exam structure:
– first state doctrine or law and then how that applies to this case
I. INTRODUCTION TO CONSTITUTIONAL LAW
A. FUNCTIONS OF CONSTITUTION
1. allocates power to fed gov’t (not states)
2. provides for a separation of power (3 branches)
3. imposes limitations on exercise of power
4. restricts reserve powers of states
5. set up a new system of power (state vs. federal)
B. HISTORY OF CON FORMATION
1. Dec of Indep: 13 colonies became free and independent (sovereign) states
2. states do not depend on Con for their power but rather Dec of Indep
3. Articles of Confederation: attempt of states to cooperate but keep them still sovereign (tariffs on imports) –didn’t work very well so needed to be improved – Con formed
4. Con drafted by framers and then ratified by people in state conventions
5. Bill of Rights (1791): not in original Con, amendments made because worried about individual rights – purpose was to put limits of Congress’ power
JUDICIAL REVIEW
II. NATURE AND SCOPE OF JUDICIAL REVIEW
A. ORIGINS AND CONTINUING CONTROVERSIES
1. Marbury v. Madison (1)
o Adams wanted to appoint federal judges before left office but not enough time to deliver commissions before Jefferson entered office (Adams wanted them to be federalists)
o Madison was new Secretary of State and refused to deliver commissions under order of Jefferson
o Marbury wants writ of mandamus to compel Madison to deliver commissions
o usually S Ct doesn’t have original jurisdiction in suits between states or between ambassadors
o here there is S Ct jurisdiction because of Judiciary Act of 1789 (§13 said S Ct can issue writs of mandamus to any persons holding office under authority of US)
o court first decides merits and says Marbury entitled to writ and it’s appropriate remedy and then decides if writ can be issued from this court à but this is backwards from the way courts usually decide cases
o court should not decide Con question if case can be disposed of on non-Con grounds (ex: maybe there’s a statute you can use to argue your case)
o wherever possible court should only decide cases that cannot be disposed of on non-Con grounds (that’s why here they decided on merits first)
o Marbury argued that Congress can give court original jsdn but this failed because not intended by legislature
o conflict between Judiciary Act and Constitution
o When Congress has enacted a law that they think is constitutional, do courts have power to declare an act of congress unconstitutional? Who decides?
o inconsistent with Const structure for courts to be able to exercise this power
o courts job is to decide if laws made by Congress are constitutional
o Congress can restrict S Ct jsdn but can’t add to it so §13 was unconst so courts can’t avoid const question (have to look at it but instead they looked at merits first)
o this case could have been decided either way
2. Cooper v. Aaron (16)
o after Brown v. Board, state court wanted to say they didn’t have to follow that
o court’s interpretation is the law of the land (decides whether leg is consistent with the const) and state must follow
3. Martin v. Hunter’s Lessee (21)
o Virginia confiscated land from Martin and gave to Hunter
o Martin is asserting federal question that treaty with Great Britain trumps VA confiscation laws
o state had perfected title to land before treatise was signed so court said treaty not applicable
o S Ct reverses because appellate court made a factual review
o lower court then said S Ct did not have jsdn so suit was dismissed
o federal question is when an issue in the case involves the interpretation or application of the constitution, federal law or treaty
o S Ct has jsdn to rule on state court ruling of state laws
o states are sovereign in some way but subject to fed in other ways as a means to uniformity across the land
B. PRESIDENT’S POWER
1. Extent to which president is bound by constitutional decisions
o fact that order cannot be enforced against pres doesn’t mean that president is not bound by it
o when president refuses to enforce law that congress says is constitutional, only remedy is impeachment
o president can say a law is unconst but Congress can overrule that and president cannot say that that is unconst
o Article 2, section 4, among power and duties of president is to take care that laws be faithfully executed
III. INDIVIDUAL RIGHTS: DUE PROCESS
A. THE RIGHT OF PRIVACY
1. Roe v. Wade debate (394)
o claim that law prohibiting women of abortion deprives her of liberty without due process of law (5th and 14th amendments)
o interpretivism: in enforcing cases, judges should confine themselves to enforcing only norms that are stated or clearly implicit in the Const (look to the text specifically and say those values in the text must be the framework for any Const determination that is to take place)
o non-interpretivism: courts should go beyond text of Const
o nothing in the Const that mentions abortion or reproductive freedom
o abortion goes beyond any concept of judicial review
o “for court to find such a right is judicial usurpation of democratic prerogatives”
o abortion is a fundamental right – laws implicating those subject to strict scrutiny
o framers did not intend for due process laws to have any substantive meaning, only embodies process type values
o so if court wants to give them sub meaning, they will also have to infuse values into them
o in resolving Const questions, court not limited to analytical framework that’s premised on values that have been Const by framers
o Sedler: court has not hesitated to go beyond text of Const and says that due process clause has substantive meaning
o Const doctrine develops in a line of growth (notion of rights is changing)
o Const is intended to endure, so for it to operate and protect individual rights, gov’t power must be limited and courts can’t be constrained by values made by framers
o Court was correct in giving sub meaning to due process clause because needed to protect liberty interests from gov’t action
o In arguing for pregnant women: focus should be on liberty and protecting it because there is a serious interference with the right of women to control their bodies
o Court must give liberty a sub meaning in order to protect it
o Rep freedom is an important value – who says this should be fundamental?
o the way a court decides what values are fundamental are decided simply by voting
o Would have been inconsistent for court to hold that gov’t interest in protecting human life was constitutionally more important than woman’s interest in reproductive freedom
IV. LIMITATIONS ON JUDICIAL POWER AND REVIEW
A. JUSTICIABILITY – determines what cases can actually be litigated
o must deal with this before substance
o for a case to be heard by fed cts, П must get past a series of procedural obstacles:
1) case must not req
ol
o court said he didn’t have custody (divorced, non custodial parent) so no standing
D. TAXPAYER STANDING
1. Frothingham v. Mellon (1518)
o court said no taxpayer standing
o logically there should be no taxpayer standing to challenge municipal expense
o test for taxpayer standing: logical link btw status and type of leg enactment, and nexus btw status and precise nature of const infringement alleged (Art 3)
o still paying taxes no matter where they are going to
o example of high school football team saying prayers before night games, taxpayers could say they have standing to say prayer uncon because prayer uses up some that lights on field have to be on and that they are paying for this extra time with their taxes
2. Flast v. Cohen (1518)
o upheld standing of federal taxpayers to challenge federal expenditures for parochial schools
o different from Frothingham because there she failed to identify any specific limitation on spending that Congress had breached
o new nexus test in taxpayer standing: federal taxpayer does not have standing, state taxpayer does not have standing except for establishment clause standing, but municipal taxpayer does have standing
o establishment clause created right to prevent gov’t from aiding religion, if it did any citizen that was opposed to gov’t action aiding religion would have standing
3. Valley Forge Christian College v. Americans United for Separation of Church and State (1520)
o court says no standing because failed two prong test
o establishment clause creates substantive const right on part of every taxpayer not to have their money used to support religion
o wanted to overrule Flast but court is unlikely to do so, so got around it
4. Other Standing Rules
o voter standing – must show injury to your right to vote
o legislature standing if could show individualized injury to effectiveness of vote
o no legislature standing until president actually exercise line item veto and cuts out project you voted for (even leg in favor has standing b/c would affect strength of that legislature’s vote)
E. CONGRESSIONAL POWER TO CREATE STANDING
1. Lujan v. Defenders of Wildlife (1526)
o Endangered Species Act authorized citizen standing (anyone could sue on behalf of animals/environment)
o court said no standing b/c no redressibility and no injury in fact – anytime someone sues must be injury in fact that can be redressed
o court said that if EPA is doing something that violates Endangered Species Act, attorney general should sue
o individual could sue only if any involvement with endangered species which will be injured by gov’t action
o congress can’t expand standing beyond core minimum requirements (injury, causation, redressibility) – const is law and congress can’t change that
