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Constitutional Law II
Wayne State University Law School
Sedler, Robert A.

1.       Constitution: What does it do?
                                                   i.      States do not use constitution as the source of their power
1.       States have basic sovereignty given by the Dec. of Ind.
                                                  ii.      State can use their own power unless it conflicts w/constitution
2.       Declaration of Independence:
a.       Ratified by the people (con is said to emanate from the people of the U.S.)
                                                   i.      “People” defined:
1.       Originally only white-male property owners
2.       15th amendment gave males of color right to vote
3.       19th amendment gave women the right to vote
4.       26th amendment 18+ have right to vote
5.       24th amendment prohibits poll taxes & property requirements
3.       Bill of Rights: (passed in 1791) first 10 amendments to the constitution
a.       Protect the individual rights of the people
b.       Treated as part of original Con because it was created practically simultaneously
c.        14th amendment Due Process Clause binds states to the Bill of Rights
4.       How Lawyers Use the Constitution
a.       Needs to be a case or controversy
b.       Must have a ∏ that was/is being injured by the “unconstitutional” law à Standing
c.        When SC changes/clarifies/makes new doctrine, lawyers can make constitutional challenges that would not have been possible prior to changes
5.       Understanding/Interpreting Rulings of SC – Constitutional Doctrine & Precedent
a.       Supreme Court makes law through stare decisis
                                                   i.      Stare Decisis: precedent is binding from higher court (Common Law)
                                                 ii.      Constitutional doctrine develops in a line of growth
b.       If SC is split, interpretation is narrowest reading of concurring justices in majority.
c.        Three step process to interpretation of decisions:
                                                   i.      Constitutional Doctrine: lawyers look to the doctrine itself, not theory
                                                  ii.      Results: the results the court reaches in the application of that doctrine
                                                iii.      Reasons: why the court reached the decision/result that they did
d.       Must understand value judgments when interpreting decisions
6.       Expansion of Congressional Powers – Interstate Commerce
a.       Congress can regulate virtually any activity, no matter how local, under the interstate commerce power over states
b.       Allows overlap between state & fed authority, barring any conflict between
                                                   i.      Preclusion by Fed law
                                                  ii.      Due process and individual rights
7.       Nature and Scope of Judicial Review
a.       Principles set forth in Marbury
                                                   i.      Judicial review is consistent w/democracy
                                                  ii.      If a constitutional provision & a congressional statute conflict, the Ct has the authority & duty to declare the statute unconstitutional & refuse to enforce it.
                                                iii.      Power of gov’t must be limited to protect individual rights (Bill of Rights)
                                                iv.      The function of the Judiciary is not to make law but to say what the law is
                                                 v.      Constitution should have uniform meaning throughout the country
                                                vi.      SC may review state ct decisions, but only to the extent that the decision was based on federal law.
b.       Independent and Adequate State Grounds
                                                   i.      Even if there is a fed ? in a state ct case, the SC may not review the case if there was an “independent & adequate” state ground for the ct’s decision.
c.        Article III § 2
                                                   i.      Sets forth the Federal Judicial Power of the Constitution to include cases:
·         “arising under” the Constitution/under federal statutes (fed question)
·         of admiralty
·         between 2+ states/between citizens of diff states (diversity)
·         between a state/its citizens & a foreign country/foreign citizens (alien)
                                                  ii.      Implies power of Judicial review through Separation of Powers (Dred Scott)
                                                iii.      Congress may limit, but not expand, fed ct jurisdiction, despite any statute
d.       Marbury v. Madison establishes (1) the authority for the Judiciary to review the constitutionality of executive & legislative acts; & (2) that Congress may only limit the SC’s jurisdiction, not expand it.
e.        Principles of Constitutional Adjudication: Avoiding Questions of Constitutionality
                                                   i.      When there is a constitutional question presented which can be decided on a non-constitutional ground the court should decide the non-constitutional issue to avoid making a constitutional decision.
                                                  ii.      Wherever possible, the court should interpret a statute in such a way as to avoid the question of its constitutionality; the court should decided constitutional issues on the narrowest grounds possible.
                                                iii.      Wherever possible, the court should dispose of a case on statutory grounds instead of constitutional grounds
f.        Art. II §4: President must make sure that laws of country are properly executed
g.        President & Congress are bound by the SC even though they have their own power:
                                                   i.      President is bound by orders of SC
                                                  ii.      Congress must act on the people’s behalf; impeach Pres if he breaks the law
h.       President has a duty to enforce rulings of the court as the executive
                                                   i.      Pres can call the nat’l guard into active fed service as commander and chief, taking it away from state command & under federal command instead
8.       Non-interpretivist or Non-originalist Constitutional Decision-Making
a.       Interpretivism: “strict construction”; in deciding constitutional issues, Justices should confine themselves to enforcing norms that are stated/clearly implicit in the Con.
                                                   i.      Look to text and historic context…no further
                                                  ii.      Interpretivist historic context indicates that the framers didn’t intend for the due process clause to have any substantive meaning; If SC is going to give it substantive meaning, its going to have to decide w/o deciding which moral values deserve protection
b.       Non-interpretivism: in deciding constitutional issues, Justices should go beyond interpretivism & enforce norms that can’t be discovered w/in the 4 corners of the text
                                                   i.      Roe v Wade made abortion a constitutional issue: not allowing women to have abortions violates their rights to liberty w/o due process of law under A 14
                                                  ii.      Substantive issue: permits judiciary to decide moral issues under the rubric of due process w/o “abortion” itself being in the constitution
c.        Non-interpretive review is a Necessary Postulate for Constitutional Adjudication
                                                   i.      Due process clause has substantive meaning because con law develops in a line of growth
1.       Ct gave due process substantive meaning: protects liberty & property
                                                  ii.      The words in the constitution don’t change, but the doctrine develops in a line of growth. As our values & culture changes, so must the meaning of the con
                                                iii.      For the con to be fully operable as a protection of individual

nt injury w/o it
                                                iii.      Injunctive Relief:
1.       LA v. Lyons: LA police were using chokeholds. ∏ wants to induce an injunction but does not have standing because it is highly unlikely that he sill be subject to a choke hold again. He can recover damages in a tort action, but not on constitutional grounds. Standing cannot be granted on the threat of future injury. Injury in fact must be present or clearly threatened à must show ∏ will suffer injury again w/o the injunctive relief
                                                iv.      Citizen Suits: When a citizen alleges their general rights are violated by gov’t action just because they are a citizen they will not have standing. ∏ must be able to show (1) the statute/action is invalid (2) that he has sustained or is immediately in danger of sustaining some direct injury as a result of its enforcement & not merely that he suffers in some indefinite way in common w/people generally. 
1.       Allen v. Wright: No standing based on redressability. Injury: the diminished ability of ∏s’ children to receive a desegregated education. Causation: can only prove causation if they can prove redressability…does tax exemption increase the impact the schools have on defeating efforts to desegregate the public schools?   Redressability: injury is only fairly traceable to unlawful IRS grants of tax exemptions only if there were enough racially discriminatory private schools receiving tax exemptions in ∏s’ communities for withdrawal of those exemptions to make an appreciable difference in public school integration.
                                                 v.      Voters Standing: must show voting rights have actually been violated; ∏ must live in the district that’s allegedly subject to racially discriminatory acts
                                               vi.      Legislature Standing: A legislature whose vote would have been sufficient to defeat/enact a specific legislative act has standing to sue if the legislative action goes into effect/doesn’t go into effect because of a presidential veto that directly interferes w/their vote because their vote has been nullified. 
                                             vii.      Standing of State: When state is adversely affected by actions of fed gov’t
                                           viii.      Congressionally Created Standing: failure to obtain info, environmental suits
                                                ix.      Failure to obtain relevant info: concrete enough injury to satisfy standing
1.       Fec v. Akins upheld power of congress to confer standing on an aggrieved person who suffers the harm of inability to obtain info as a result of a decision by the FEC that reporting & disclosure requirements aren’t applicable to a private party
                                                 x.      Citizen Standing in Environmental suits: Congress can define injuries & articulate chains of causation that’ll give to rise to a case/controversy where none existed before if they can, at the very least, identify the injury they seek to vindicate and relate the injury to the class of persons entitled to bring suit
Lujan v. Defenders of Wildlife:∏ lacks standing because no injury-in-fact and no redressabilityàdoesn’t satisfy case & controversy. Allowing case would