INTRODUCTION TO CONSTITUTIONAL LAW
Constitutionalism = Precommitment to countermajoritarian ideals and aspirational text of what the hopes of the country are.
Remember to look at:
-context in deriving the intent and the motivation of the provisions
-are there practical alternatives per circumstances, meaning is the provision prudent in light of the goals.
-precedence and history- the language, custom, tradition (values/ethics) can all be considered parole evidence
-structural goals behind dividing powers
Declaration of Indep.- was more aspirational in putting forth a list of rights w/o means of enforcement (ideals, principals)
-perhaps consider as parole evidence to Constitutional interpretation
Art. of Confed- source of power is the states (after being ruled by a monarchy) vs. the Cnst. which vests power in the people
-Cng. doesn’t have plenary power in either except in D.C.
-AF gives Cng. no power to tax or regulate; Cnst. gives Cng. interstate commerce power
-differences in selection of representatives
-no Exec. in AF
-AF had very limited judiciary (unicameral)
II. THE INSTITUTION OF JUDICIAL REVIEW
A. THE BASIC FRAMEWORK
Marbury v. Madison (p.23) (1803) Marshall- a Federalist- strong federal govt. (conflict of interest as he was a witness)
ESTABLISHED JUDICIAL REVIEW: CT. CAN REVIEW THE CONSTITUTIONALITY OF EXECUTIVE AND LEGISLATIVE ACTS.
*see outline p.1*
Marshall is appointed Chief Justice by outgoing Adams, yet he remains Sec. of State. Wanted to make sure a Republican justice wouldn’t be appointed as 1 justice was about to die.
The Federalist Congress also passed the Circuit Ct. Act which created new federal judgeships so as to pack the the cts. w/ Federalists.
Also, D.C. Judges Act- justices of peace appointed, including Marbury. But, he failed to receive it. The next day, Jefferson is sworn into office w. Madison as his Sec. of State. Marbury sues Madison for his commission based on a writ of mandamus (directed against a public official and asking the ct. to command a pub. official to go forth w/ a specific task); brings case directly to S.Ct.
Then, the Rep. Cng. repeals Cir.Ct.Act and suspend S.Ct’s term so that the Ct. wouldn’t overrule their repeal of the Act.
MATTER OF JURISDICTION:
S.Ct. has both personal jurisdiction (power over you) and subject matter jurisdiction. Ct. can be a trial ct. (original jurid.) or appelate jur.
*First question often answered by Ct.
Marbury says the Ct. can authorize mandamus in original jurisd. claim bc of the Judiciary Act of 1789.
But, Marshall wants to avoid the constitutional question. He looks at Art.III §2 cl.2 which does not allow Ct. to issue writs in original jurisdiction. Must only look at this issue in appellate jurisd. Since, Marbury sued under Justice of Peace Act, which is a federal statute, Ct. can’t hear this originally. Marshall reads the Art.III §2 cl.2 “exceptions” as being default rules where Cng. has made exceptions by passing statutes (e.g.) the Judiciary Act. But, Cng. cannot allow original juris. beyond those times enumerated in Art.III; therefore this provision of Judiciary Act was unconstitutional and invalid. (even though drafters of Cnst. wrote the Judic.Act???)
*S.Ct. does not have jurisdiction to hear Marbury’s suit.
More importantly, Marshall established Judicial Review- S.Ct. has power to declare statutes null and void when there is a Constitutional conflict w. the statute.
-we want limited govt.; don’t want Cng. to be able to do whatever they want.
-Art. VI = Cnst. is supreme law of land (The Supremacy Clause). Laws have to be pursuant to the Cnst.
-But, maybe there just has to be procedural accordance w/ the Cnst. and the statute.
-It’s the role of judges to interpret law. Judges are also safe from political maneuvering that affects Cng. They take an oath to uphold Cnst (But everyone takes an oath and when judges took an oath, there wasn’t any judicial review).
B. THE COUNTER-MAJORITARIAN DIFFICULTY & SOME POSSIBLE SOLUTIONS
1. INTERPRETIVE ROLES FOR OTHER GOVERNMENTAL ACTORS: JUDICAL REVIEW OF STATE COURTS
WHO SHOULD BE THE AUTHORITATIVE INTERPRETER OF THE CNST:
1) One approach is for no branch to be regarded as authoritative, each branch would have equal authority to determine the meaning of constitutional provisions and conflicts would be resolved through political power and compromise.
2) A second approach is that each branch is authoritative in certain areas- example is how the judiciary has decided that certain parts of he const. pose political questions and are matters to be decided by other branches of govt.
3) The third approach would be to assign to one branch final authority for const. interpretation.
Cooper v. Aaron (p.53) 1958
CTS ARE ULTIMATE GUARDIANS OF THE MEANING OF THE CNST. AND OTHER GOVT.OFFICIALS MUST NOT INTERPRET THE CONST. FOR THEMSELVES, BUT INSTEAD MUST LOOK TO THE CT’S INTERPRETATION AND TAKE IT AS AUTHORITATIVE
Ark. Govt. doesn’t want to comply w/ a Fed. Dst. Ct. order to desegregate (relies on Brown)
S.Ct: strong interpretation of Marbury- S.Ct. gets to make decisions on all cases, no just those arising about 2 parties
-Marbury has a general holding. But, this language in Marbury was dicta (supreme law of land).
*How then will the law ever change if it’s always generally construed?
If Ct. says something is const. (Plessy) and Congress passes statute upholding this, but Pres. disagrees, he can veto it. This is his right and duty as a check and balance.
Thayer Handout: thinks that judicial review should only be exercied when there is clear error (i.e.) when Cng. has gotten something wrong. Maintains a deference to Cng. based on popular soverignty; “we the people” make the decisions by electing a Cng. If wanted S.Ct. to have this power, would’ve given it to them.
-But there are very few clear cases of this.
2. TRADITIONAL MODES OF CONSTITUTIONAL INTERPRETATION: JUDICIAL ROLE IN FEDERALISM
McCulloch v. Maryland (p.57) 1819- Marshall
BROADLY DEFINED SCOPE OF FEDERAL LEG. POWER IN IT’S RELATIONSHIP TO STATE GOVT. AUTHORITY
-MUST FILL IN BROAD BRUSHES OF THE CNST. BC IT IS A DOCUMENT THAT MUST ENDURE ALL TIME
-CREATING NATIONAL BANK IS CONSTITUTIONAL
Does Cng. have the power to set up National Bank?
Can a state (MD) tax the bank?
After war of 1812, state banks in bad shape; fed govt. has big debt. So, Cng. thought this bank may help where states are made to repay debts. Some states (MD), then, tax banks.
P is the cashier of a Bank of U.S. branch who sues govt. for payment of back taxes?
Marshall concedes that Cnst. does not enumerate this power of Cng. to create the bank. But, there are implicit powers of Cng. under the Necessary and Proper Clause Art.I §8 (like the 18th power). A textual arguement: Cng. has power to do things beyond the plain letter of the law. MD challenges this and Marshall looks to the 10th Am. in comparason w/ the AF.
-It is a constitution we are expounding…
MD uses a contextual argument: this is not fundamental/ absolutely necessary in common usage.
Prudent argument: entrust the govt. to use its powers wisely as the representatives of the people.
Tradition argument: 1st bank worked; Marshall defers to the intent of the 1st Cng. in drafting the Constitution (even though he didn’t do this in Marbury; he’s changed since then when he advocated a statute based interpretation (textual) of the Cnst.)
Marshall: if interpret like MD wants to, nat. govt. would be weakened.
-But, what are the checks on the fed. govt.?
He sets limits (p.64): Cng. can’t act in pretext in which they’re not really acting under one of their enumerated powers. In this case, Ct. can step in and strike down law.
But, here there is a rational basis: if the end is legitimate and no prohibited by Cnst., then Cng. may choose necessary means to achieve that end. This is valid bc it bears reas.relationship to Cng’s enumerated powers.
HOLDS RE: STATE POWER TO TAX:
NO, power to tax is the power to destroy. Also, could lead to states taxing all instruments which could become a system of oppressive and rival taxations. Don’t want the cts. to have to set all these limits. Prefer, instead a bright line rule.
Calder v. Bull (p.71) 1798
DEFERENCE TO STATES IN PASSING LAWS.
Is statute an ex post facto law violating Art.I §10 cl.1?
Conn. passes law about probate cts’ ability to decide wills.
P got property by intestate secession bc a probate ct. decided that will was no good which gave property to D. This was the rule that Conn changed.
No, bc that’s about criminalizing conduct that wasn’t criminal at time of prosecution. And since this is civil, it’s not applicable.
Chase: Natural law: somethings are endowed by human nature and protected by natural rts. A law violating this would be void.
-Irrelevant argument to his final opinion…
-Though crazy sounding, this ends up being a valid argument in that many decisions have been based on natural law grounds.
Iridell: Positivist/ natural law: law is good unless there is something in a higher, positivist law that would make it no good.
-Maybe better bc would be too hard to get a bench to agree solely on a natural law basis.
But, wouldn’t want a positivist view to necessarily reign (Nazis)
*Textualists: are bound by original “meaning”- what did the framers mean? This isn’t the same thing as “intent” bc we know the framers didn’t intend for technology, changing circumstances. But, their “meaning” was such that we can infer certain things.
Provisions are applied to new circumstances, but the core remains until properly amended- this was the only way which the framers left to change the cnst. When judges interpret, they are imputing their own social character and are usurping the legislative power to change the cnst.
But, even when they define a word used by the framers, aren’t they still defining this subjectively (i.e) imputing their own meaning? And if all we needed were the black letter of the cnst, why do we need the judges at all?
*Non Textualists: recognized that judges depend on their own world views anyway, so this is why they should be interpreting the cnst. None of the 3 powers are demarcated in the first 3 Articles and put w/in bright line restrictions, so there isn’t a cnst. reason to keep them in certain limitations. As time changes, the cnst. changes; it is a “living thing.” We should be worried when a judge feels constrained not to put his own thinking of the law into his decision.
3. POLITICAL CONTROL OF THE COURT: JURISDICTION STRIPPING- JUSTICIABILITY DOCTRINES
External or political checks on judicial powers:
– An Amendment to the Cnst.
– Appointments Process (now about judges’ particular views on specific things)
– Impeachment- only for treason, bribery, high crimes; has never happened
– Self-policing- often a reluctance to move too far from majority views
Policies underlying justiciability doctrines
1) Closely tied to the separation of powers- define the judicial role and determine when it is appropriate for the federal cts. to review a matter and when it is necessary to defer to other branches of govt.
2) Permit the judiciary to expend its political capital only when necessary and not to squander it on matters inappropriate for judicial review
3) Improve judicial decision making by providing the federal cts. w/ concrete controversies best suited for judicial resolution
4) Promote fairness, especially to individuals who are not litigants before the ct.
*The ct. will avoid deciding const. issues where there are nonconstitutional grounds for a decision
JUDICIAL STRIPPING: can Cng. restrict s.ct. from hearing certain cases?
Art III §2- Cng. can take things out of App.Jurisdiction box and thus deprive s.ct. of some of its jurisdiction.
Ex Parte McCardle (p.81) 1869
Ct: Cng. has the authority to create or abolish exceptions to S.Ct’s appelate jurisdiction; Cng. has this plenary power.
McCardle brings suit bc wants to use the Jud. Act of 1867 which allows federal cts. to hear Habeas Corpus petitions. But Cng. passes a statute repealing the 1867 Act so that S.Ct. can’t hear his claim.
Ct: don’t care about the motives of the Leg. (contrast McCullogh where cared about bad faith pretext of Leg.)
United States v. Klein (p.86) 1872
Ct: Cng. can’t strip this jurisdiction away from S.Ct. bc there is an essential function = there is a reason for the powers of the S.Ct.
But, maybe Cng. check could actually enhance judicial review in that judges would be assured that Cng. could react if the people wanted something be done about ct. overstepping question.
C. THE “CASE OR CONTROVERSY” REQUIREMENT & THE “PASSIVE VIRTUES”
Is a particular case bf the Ct. o.k. for it to decide?
1. ADVISORY OPINIONS, STANDING, RIPENESS & MOOTNESS
Ripeness: about timing: is it too early, speculative, remote to warrant judicial intervention; might this go away bf it need come bf the ct.
Mootness: about timing: is it too late; have things in the real world settled themselves already. Exception: cases that are capable of repetition yet evasive for review, like abortion.
CTS. ARE ABOUT REMEDYING INDIVIDUAL GRIEVANCES
*Limit ct’s power in those cases where there is an actual harm and leave political battles to that arena.
-need an actual dispute between adverse litigants not a hypothetical legal question
Causation: is this P the right person to bring this kind of suit
Redressability: can the Ct. help this P.
*Opponent can raise lack of standing @ any time and Ct. itself can raise this issue and dismiss case.
*Art III talks about fed. standing though state standards are pretty similar. (this cannot be overridden by statute)
-has to be an injury in fact (concrete and particularized); the mere fact that the law has been violated is not enough
-has to be actual and immenent- a likelihood of future harm; not just a possibility
(e.g.) Lyons (p.110) he couldn’t show that the chokehold w ould happen to him again in an attempt to get the fed. ct. to enjoin the police. He could sue for damages though.
-But, S.Ct. hears cases where standing isn’t clear (Bowers).
Allen v. Wright (p.91): P class action claim that they were harmed by the existence of the schools which resulted in their children being denied an integrated school.
REDRESSABILITY: EVEN IF ENFORCE REGULATION, WON’T GET TO THE CAUSE OF THE PROBLEM
Linda R.S. (p.105): didn’t prosecute deadbeat dads who weren’t married to moms and thus child isn’t getting child support.
REDRESSABILITY: CRIMINALLY PROSECUTING DADS WOULDN’T NECESSARILY HELP CHILD
*often dependant on how ct. characterizes injury (e.g.) Bakke- even though P couldn’t show he was personaly affected, Ct. characterized his injury differently.
1) no 3rd party standing: don’t want to be estopped form bringin a a claim bc a 3rd party intermeddler brought it already.
2) no generalized grievances (e.g.) no taxpayer/ citizen standing bc you’re not hurt in any way that other taxpayers aren’t hurt.
*Exception: the Establishment Clause: your taxes support religion in an unconstitutional way (Flast v. Cohen)
But, property transfers don’t count under this- it’s only when your money is being taken (Valley Forge v. Christian Church)- o.k. for govt. to give old base to a church bc it was property.
*solely ct. imposed restriction, so statutory override o.k.
3) has to be kind of person that fed. statute was designed to help
2. THE POLITICAL QUESTION DOCTRINE (p.12 of outline)
What matters are appropriate; what kinds of cases?
CERTAIN SUBJECT MATTERS SHOULD NOT BE RULED ON BY FEDERAL CTS, BUT RATHER SHOULD BE LEFT TO POLITICALLY ACOUNTABLE BRANCHES OF GOVT- PRES. AND CNG.
*Foreign policies and treaties are usually non-justiciable, but not always, under the Political Question Doctrine.
SUMMARY OF CONTOVERSY:
-PQD is too arbitrary- a judiciary that ducks controversial issues to perserve its credibiltiy is likely to avoid judicial review whre it is needed most, to restrain highl
o another. And lottery tickets in themselves aren’t harmful.
Ct: the power to regulate competition (Shreveport Rate) is too attenuated and really only a pretext by Cng. to outlaw child labor practices.
-will look at the pretext of the statute to overturn.
Stafford v. Wallace (p.197) 1922
CNG. CAN REGULATE STOCKYARDS BC IT’S IN THE STREAM OF COMMERCE
formalist argument of temporal limits- stockyards are @ beginning of the transport (unlike child labor practices in Hammer)??
Coronado Coal v. United Mine Workers (p.198) 1925
CNG. CAN REGULATE THE STRIKING MINERS BC THEIR INTENT IS TO AFFECT INTERSTATE COMMERCE; APPLY SHERMAN ACT AGAINST THEM
*but, isn’t this the same as E.C. Knight where didn’t care that they were acquiring a sugar monopoly.
Schecter Poultry Corp v. U.S. (p.206) 1935
NO CNG. REGULATION ALLOWED BC INTRASTATE COMMERCE ONLY AND NO INTERSTATE COMMERCE; NOT PART OF THE STREAM OF COMMERCE.
P is a slaughter house in NY which sells to butchers and consumers in violation of fed. code
Govt. says this will lead to the race to the bottom by states (like Hammer) and this is part of the stream (Stafford), or like transportation (Shreveport Rate), etc.
Cardozo concurrence: don’t look at how great the effect is; measure commerce like causation.
Carter v. Carter Coal (p.209) 1936
LABOR AND PRICE FIXING PROVISIONS OF THE FED. STATUTE AREN’T SEVERABLE SO ALL ARE INVALIDATED AND UNCONSTITUTIONAL BASED ON THE FACT THAT THE LABOR PROVISIONS AREN’T REGULABLE BC MINING IS NOT COMMERCE. (don’t look at price fixing provision)
-the effect on interstate com. is too indirect; this is intrastate:
-can’t look at all the coalmines in aggregate
-Cng. can only regulate in the middle of stream.
-question of Cng. intent: why did they join these 2 provisions
-narrow def. of commerce to protect the states.
HOW TO RECONCILE: *Very conflictive in an expanding economy
1) Cng. can prohibit movement of goods but they have to be
a) inherently dangerous products (lottery tickets??)
b) will look at motives if it wants to (didn’t in Champion)
2) Intrastate activities w/ direct effect on interstate commerce are regulable (Gibbons, Coronado, Shreveport)
3) Can regulate w/in the stream of commerce
a) if bf or after, then NO
b) if intermediary, then OK
4) Can regulate instrumentalities
5) Cannot regulate bf commerce (e.g.) manuf. except if there is intent to affect interstate commerce.
2. THE NEW DEAL AND THE MODERN WELFARE STATE
1) Cng. can regulate the use of channels of interstate commerce (highways, waterways, air traffic)
2) Cng. can regulate and protect the instrumentalities of interstate commerce, including poer to regulate persons, machines, and things used to carry out commerce. (e.g.) Cng. could require trucks to have specific device, even if particular truck was made and used only w/in single state.
3) Cng. can regulate those activities that substantially affect interstate commerce. Mean-end relationship may not be too tangetial or uncertain. Uses the rational basis test.
1937-1995: New Deal to Lopez- almost always defer to Cng.
1) No longer distinguished bw commerce and other stages of business, but allowed Cng. to exercise control over all phases of business.
2) No longer distinguished bw direct and indirect commerce
3) No longer enforced 10th A. limit on Cng’s power, but allowed Cng. to regulate so lang as it was w/in broad scope of Cng’s power.
NLRB v. Jones & Laughlin Steel Corp (p.216) 1937
NO LONGER PAYS ATTN. TO STREAM METAPHOR- CNG. CAN REGULATE ALL THINGS THAT ARE COMMERCE. ANY STRIKES, LOCAL PRACTICES STILL
HAVE DIRECT EFFECT ON INT.COMM. BC THERE ARE INTERESTS, PLANTS ALL OVER THE NATION.
-overturned E.C. Knight and Carter Coal- no distinctions bw production and commerce
-don’t care about aggregate- just ind.company.
-don’t care if Cng. had a pretext to get at the local working conditions.
D says that employer regulation is not commerce, but only manufacturing, and not regulable by Cng’s NLRA which created a rt. of employees to bargain and prohibited discrim. practices against union members.
U.S. v. Darby (p.222) 1941
1) SHIPMENT IS COMMERCE BC TRANSPORTATION AND TRAFFIC
2) PROHIBITION OF SUBSTANDARD LABOR IS CONSISTENT W/ GOALS OF REGULATING COMMERCE; THE STATUTE IS A LEGIT. MEANS OF REGULATING
Statue prohibited employment of workers for less than minimum wage if they were manufacturing for interstate commerce.
-overruled Hammer (don’t look at motive of statute- rejects pretext argument)
-the 10th A. is to be viewed externally from the def. of commerce; “the 10th A is but a truism”
Wickard v. Filburn (p.220) 1942
CNG. CAN REGULATE HOMEGROWERS BC THIS HAS AN EFFECT ON THE DEMAND AT LARGE
-looks at the aggregate effect of individual actions
-activity doesn’t have to be non-commercial; could be local activity.
-abandonded the direct/ indirect effect
Farmer Filburn grew more wheat for his own personal consumption.
*individuals still have other cnst. rights even though commerce has been expanded.
Heart of Atlanta Motel v. U.S. (p.229) 1964
CNG. CAN REGULATE BC HAS AN EFFECT ON INT.COM. BC THE STATUTE PROTECTS INTERSTATE TRAVEL
Civil Rights Act of 1964 is thus upheld.
*First time that Ct. uses rational basis test: as long as Ct. thinks Cng. could have thought there’s a rational basis for distinguishing the regulation as int.commerce, will be upheld.
-Ct. doesn’t care about Cng’s motive of prohibiting racial discrimination
-Cng. may use any means necessary to serve a legit. end
Katzenbach v. McClung (Ollies BBQ) (p.230) 1964
CNG CAN REGULATE SMALL BUSINESS THAT REFUSED TO SERVE BLACKS BC THIS PROTECTS INTERSTATE TRAVELERS; THEY SERVED GOODS PURCHASED THROUGH INTERSTATE COMMERCE, AND IT HAMPERED NEW BUSINESSES FROM BEING ESTABLISHED NEAR IT
-Ct. looks at aggregate effect of behavior to see if there’s a substantial effect
*is there a rational basis
3. THE LATEST WORD
U.S. v. Lopez (p.154) 1995 (Rehnquist)
END OF CNG’S POWER TO REGULATE EVERYTHING
-the GFZA of 1990 is unconstitutional bc this was too far of a reach to deem it an effect on interstate commerce.
-does it relate in any way to the “cash register principle”- does money change hands at any point? Wickard is the most far-reaching and even there, there was some economic activity.
-rational basis review, but has to be something economic or commercial
Ct: wants to prevent “parade of horribles”- if say this is regulable, everything would