Constitutional Law Outline
Fall 2012
Professor Power
I. Governmental Powers
A. Judicial Review
1. Structure
1. Marbury v. Madison – The Constitution outweighs a statute.
2. The Power to Review State Court Judgments (Martin v. Hunter’s Lessee)– The Supreme Court has power, under Article 3, to review the final decisions of the highest state courts on matters of federal law.
i. States lose sovereignty because otherwise there would be too many interpretations of the Constitution.
ii. Supreme Court has appellate jurisdiction over all cases arising under federal law within the judiciary of the US, by the terms of the Constitution. The Supreme Court has also reviewed state matters as well.
iii. Historical facts:
1) In the ratification process, everyone knew the Constitution allowed federal oversight of state’s decisions
2) When the judiciary act was passed everyone knew its meaning that the Supreme Court could review the decisions of state courts.
3) Previous state courts have allowed Supreme Court review and no one ever said anything about it
2. Methods of Constitutional Interpretation
1. Interpretivists vs. Noninterpretivists: Two basic notions of what we do when we interpret the Constitution
a. Interpretivists – Interpret the meaning of the Constitution
i. The only job of the judge is to interpret the meaning of the words
b. Noninterpretivists – Will look to other things as well as the meaning of the Constitution
c. Calder v. Bull – Two views:
i. Justice Chase – Believed the vital principles (life, liberty, pursuit of happiness) supersede other sources of law (Constitution) (noninterpretivists) – Natural law
ii. Justice Iredell – Believed legislative power is given with restraints. The courts have a job to do (uphold the written words of the Constitution – interpret and apply (interpretivists))
2. To apply – begin with the textual method:
a. Textual Method – Drawn from a present sense of the words of the provision
b. Doctrinal Arguments – Precedence rules!
c. History (Originalism)
i. Comes from the meaning of the people at the time
ii. What did the people at the time think these words meant?
1. This difference is important because words change over time
d. History (Inferences & Trends (Vectors of History)) – History as trends is dynamic as opposed to static, this has to do with societal changes
e. Structure – Federalism questions
3. The Tiers or Standards of Review
1. Minimal Scrutiny (Rational Basis)
a. Minimal basis to determine the rational basis of what the court did.
b. Will only be struck down if not considered rationally related to a legitimate government objective
c. Ex. Voter ID Law – The purpose would be to eliminate voter fraud. Issue – Whether requiring ID’s is a rational means to lower voter fraud.
i. Arguments for why minimal scrutiny standard of review – Not a sufficiently compelling objective, because it is not a showing that there really is a fraud problem, and this is not necessary to get rid of any fraud
2. Strict Scrutiny
a. Narrowly tailored (necessary) to accomplish a compelling objective.
i. Means and objective must be necessary, not just rational; compelling not just
b. Will only be upheld if the State can meet the test.
c. The government action is presumed to be void; it will be upheld only if the government can prove that its action is necessary (narrowly tailored) to achieve a compelling government objective.
d. Ex. Laws that intrude on fundamental rights; race
3. Intermediate Scrutiny
a. This is mostly used in first amendment issues
b. The government action is presumed to be void, and will be upheld only if the government can prove, generally, that its action is substantially related to the accomplishment of an important actual state interest.
B. State Action – In order for there to be a constitutional issue, there must be state action. State action means ALL government (from President on down to the lowest paid, least important office in the smallest municipality anywhere)
C. Limitations on Federal Court Jurisdiction (Limitations on Judicial Review)
1. Congressional Power to Control the Courts
1. Checks and limitation – Power of Congress to control federal court jurisdiction
a. To what extent? Article III vests federal judicial power in one Supreme Court and “such inferior Courts as the Congress may from time to time ordain and establish.
i. Congress has the power to take away the jurisdiction of the inferior federal courts.
2. Congress’s power over the Supreme Court
a. Exceptions and Regulations Clause – Congress can trim the Supreme Court
i. Article III, Section 2 endows the Supreme Court with appellate jurisdiction of all cases within federal judicial power with such Exceptions, and under such Regulations as the Congress shall make.
3. McCardle
a. Facts: Congress imposed military government on many former Confederate States by authority of the Civil War Reconstruction Acts. McCardle (newspaper editor) held in military custody for publishing libelous and inflammatory articles. McCardle filed a habeas corpus writ claiming that Congress lacked authority under the Constitution to establish a system of military government. The Act authorized federal courts to grant habeas corpus to persons held in violation of their constitutional rights and granted the Supreme Court the authority to hear appeals. The circuit court denied McCardle’s habeas corpus writ but the Supreme Court sustained jurisdiction to hear an appeal on the merits. But, Congress passed an act on March 27, 1868, repealing the portion of the 1867 Act that allowed an appeal to the Supreme Court and the exercise by the Supreme Court of jurisdiction on any such appeals, past or present.
b. Issues:
i. Does Congress have the power to make exceptions to the Supreme Court’s appellate jurisdiction in cases in which it has already granted jurisdiction?
1. Yes, The Constitution gives the Supreme Court appellate jurisdiction, but it gives Congress the express power to make exceptions to that appellate jurisdiction.
ii. Must the Court always first determine if it is has jurisdiction to review a case?
1. Yes. The Court must always determine first if it is has jurisdiction to review a case.
2. In this case, the repeal of the act necessarily removed jurisdiction. Without jurisdiction, the Court cannot proceed; the only thing it can do is announce that fact and dismiss the cause of action. When a legislative act is repealed, it is as if it had never existed except in transactions past and closed. Thus, no judgment can be rendered in a suit after repeal of the act under which it was brought.
c. Case dismissed for lack of jurisdiction
2. Justiciability – The ability of the court to resolve a particular case
1. The Jurisdiction of the federal courts is limited by Article III, Section 2 to “cases” or “controversies.”
a. Under Article III, Section 2, The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
b. Precludes federal courts from providing advisory opinions (advice).
2. Standing – Courts may not hear a case unless the plaintiff has “standing” to bring the claim.
a. The irreducible constitutional minimum of standing contains three elements:
i. The party who invokes the court’s authority to show that he personally has suffered has some actual or threatened injury.
1. Imminent
ii. As a result of the putatively illegal conduct of the defendant that the injury fairly can be traced to the challenged action and
1. Looks like two separate requirements but we put them together
2. They are both causation – One is actual (but for), the other is proximate
iii. Is likely, as opposed to speculatively, to be redressed by a favorable decision
iv. *Party invoking federal jurisdiction has the burden to establish these elements.
b. Valley Forge Christian College
i. Statute – allows government to sell off surplus property (property that is no longer needed). Suppose to sell it off for public interest uses. Price will be discounted based on the value of the public interest that it will be used for.
ii. Property – VFCC Hospital building
iii. Problem – Government shouldn’t be giving state resources to the church.
iv. Standing (two attempts to satisfy standing requirement)?
1. Taxpayer’s Standing – It could sell the hospital instead of giving it away. This doesn’t work because the injury is not individualized. The injury effects everyone.
a. If it did work, analysis of standing would look like this:
e a federal grand jury. Refuses to resign so Congress commences impeachment proceedings. House votes to impeach him, then goes to Senate. In Senate proceedings, Nixon is convicted. Nixon challenges that he wasn’t properly tried in the Senate.
b. Lower courts refuse to review saying this is a political question because the Constitution gave Congress the ability to impeach.
c. Issue: Whether Senate Rule XI is nonjusticiable because it involves a political question.
d. Holding: Yes, fits both categories of political questions:
i. Textually demonstrable constitutional commitment – The Constitution says it does something. Here there was a little more evidence of the menaing of the Constitution as precluding judges from being involved. Framer’s intent – When resolving who wouldresolve impeachment, they settled for Congress stating that the judges branch should not be responsible for deciding whether a judge is impeached.
ii. Lack of judicially discoverable and manageable standards – Nixon wanted the entire Senate to hear this case, not just a select committee but that wasn’t in the rules.
D. National Legislative Powers
1. Enumerated Powers & The Necessary and Proper Clause
1. Under Article 1, Section 8, The Congress shall have Power to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
2. McCulloch v. Maryland – Whether Congress had power to create a national bank
a. Ends & Means
i. Ends – Great powers, enumerated powers
ii. Means – The things government does to achieve the great powers; incidental power to bring about the great powers
b. Test – Necessary & Proper Clause
i. Let the end be legitimate
1. The great powers must be legitimate
ii. Let it be within the scope of the Constitution
1. The end must be permitted by the Constitution
iii. All means which are appropriate
1. All implied powers or exercises of authority which are permitted by the necessary and proper clause must be appropriate
2. Which are plainly adapted to that end
iv. Which are not prohibited
1. Can’t be a “shall not”
v. But consist with the letter and Spirit of the Constitution, are constitutional
1. Can’t blatantly violate the “outline” of the Constitution
c. The bank is necessary and proper to carry out the great powers because they require money so it’s helpful to have a bank through which to do those things
2. Commerce Power
1. Under Article 1: Section 8, the Congress shall have power to regulate Commerce with foreign nations, and among the several States, and with the Indian Tribes.
2. Standard of Review –
3. Lopez
a. Means and End
i. Means – Regulate activities that affect interstate commerce
ii. Ends – Better commerce
b. Lopez’s 3 broad prongs (state them all in rule):
i. Congress may regulate the use of the channels of interstate commerce
ii. Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from interstate activities, and
iii. Congress’s commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e. those activities that substantially affect interstate commerce
