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Constitutional Law II
West Virginia University School of Law
Bastress, Robert M.

 Con Law
Supreme Court Authority
 
Equal protection: you cannot treat them differently; the classification is invalid because it is invidious; you make the intrusion on the right more broad
 
Substantive due process: you cannot take away the liberty interest in the right to procreate without a compelling state interest; provides more protection to the right
 
Procedural due process: state must have due process before deprivation; if the state improved the due process, it could continue to sterilize
Article III
 
Judicial Review
Different portions of the Constitution will be interpreted by different branches.
Marbury v. Madison
Facts: Madison failed to deliver the commissions for judges; Marbury sought a writ of mandamus against the new Sec. of State
 
Holding: The Judiciary Act of 1789, which gave power to the S. Ct. to issue writs of mandamus against Sec. of State and other officers, was unconstitutional because the grant of jurisdiction was in conflict with Art. III § 2, which granted only enumerated original jurisdiction cases to the S. Ct. (the inclusion of one thing indicates the exclusion of others)
 
Syllogism: “The Courts say what the law is. The Constitution is Law. Therefore, the courts interpret the Constitution.”
 
The S. Ct. is the final authority on interpretation of the Constitution and the constitutionality of federal statutes.
 
Note: J. Marshall managed to have the outcome of the case such that the executive branch could not argue with the result (the writ of mandamus was not granted; had he issued the writ, the executive branch would not have had to enforce the writ), while at the same time expanding the effective power of the Judiciary Branch (finding a constitutional basis for Judicial Review of executive Branch activities and Congressional legislation)
Cooper v. Aaron
Facts: after Brown v. Bd. Of Education had ruled that segregated schools were unconstitutional, desegregation of Little Rock schools was blocked by the Governor of Arkansas; Gov. argued that because Arkansas was not a party to Brown they were not bound by it
 
Holding: S. Ct. decisions on the Constitution are the Supreme law of the land
Dickerson
Facts: Congress modified the Miranda warning requirements; S. Ct. held in Dickerson that the Miranda warnings were not simple a judicially created rule of evidence (which Congress can change by statute) but the Miranda warnings were Constitutional decisions (which Congress cannot change by statute, only by amendment)
 
Holding: Congress may not attempt to set aside a Constitutional ruling of the S. Ct.
Limitations
Justiciability
Political Question Doctrine
Factors to decide if there is a political question (if any are found, may be a political question):
1.       textually demonstrable constitutional commitment of the issue to other branches of government
2.       lacks judicially discoverable and manageable standards for resolving the issue
3.       impossibility of deciding the case without initial policy determination calling for non-judicial discretion
4.       Impossibility of deciding the case without expressing lack of respect due other branches of government
5.       Unusual need for unquestioning adherence to a political decision already made
6.       Potentiality of embarrassment from various pronouncements by various heads of departments on one question
 
Classic Political Question Cases:
1.       Foreign Affairs (Goldwater)
2.       Impeachment Proceedings (Nixon)
3.       Amendments Process ()
4.       Guarantee Clause (Baker)
5.       Membership in Congress (Powell)
Baker v. Carr – Guaranty Clause
Facts: Challenge to the apportionment of Tennessee
 
Rules Learned:
1.       Guaranty Clause is always a political question
2.       Apportionment[1] suits based on Equal Protection are justiciable
3.       Issues of political rights are not necessarily political questions
4.       Decision of whether something is a political question is usually based on separation of powers
 
Factors of a Political Question
7.       textually demonstrable constitutional commitment of the issue to other branches of government
8.       lacks judicially discoverable and manageable standards for resolving the issue
9.       impossibility of deciding the case without initial policy determination calling for non-judicial discretion
10.    Impossibility of deciding the case without expressing lack of respect due other branches of government
11.    Unusual need for unquestioning adherence to a political decision already made
12.    Potentiality of embarrassment from various pronouncements by various heads of departments on one question
Luther v. Gordon – Respect to Other Branches
Synopsis: rebellion in Rhode Island; Congress had recognized which faction wa

always meet the legal test for redressability
o         only equitable remedies, such as injunctions, writs, orders, will present issues of redressability
o         Lujan – other agencies were not before the court and the persons running the projects overseas
o         Warth – contractors were not before the court as defendants
 
Prudential Requirements
1.       third-party standing – generally not recognized
a.       Exceptions (person before the court must still show injury in fact to self before asserting the rights of the third-party)
                                                               i.      First Amendment Cases (not on exam)
                                                              ii.      Close or Special Relationships (Wolf v. Singleton – Dr. could assert the right of patient to get an abortion because of Dr/Patient relationship) (Craig v. Warren – beer distributors sued on behalf of 18 year old male consumers)
                                                            iii.      Significant obstacles to the third-party coming before the court (abortion/pregnancy)
2.       generalized grievances – injuries shared by the general public; court wants the political branches to resolve issues of general grievances
a.       Establishment Clause – Flast v. Cohen – excepted causes where there is a Spending Clause action of the government that violates the Establishment Clause
3.       “zones of interest” test – cannot bring a case under a statute or constitutional provision unless you are within the zone of interests for whom the statute or constitutional provision has been designed
4.       prosecutorial discretion – court will not review state prosecutor’s decision not to prosecute
5.       state court standing – court will not review standing decisions from state courts
[1] Apportionment – issues of how a state legislature apportions districts for the US House of Representatives