Constitutional Law I Outline

Constitutional Law Outline – Fall 2013
 
Judicial Review
 
Judicial Review – Article III – Can the court hear the case
 
Judicial Review: The power of the federal court to review legislation to determine whether it is consistent with the constitution [established by Marbury v. Madison]  
– The Doctrine of Judicial Review provides the Judicial Branch with the power to invalidate government laws and conduct that conflict with the Constitution
 
– The federal courts are courts of limited jurisdiction, with constitutional limits in Article III and prudential limits set by the courts themselves
 
– Article III gives the SCOUS original jurisdiction only in cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In other cases the court is only allowed to exercise appellate jurisdiction.
 
– Grants the federal courts jurisdiction over case arising under the constitution
 
Notes from Marbury
 
1. If executive doesn't have discretion ➞ Supreme Court can tell the executive what to do
 
➞  Subject to Judicial Review
 
2. If executive does have discretion or involves national interest ➞ it's a political question
 
➞ Not Subject to Judicial Review
 
3. The court may review legislation for constitutionality ➞ The Supreme Court of the United States defines the meaning of constitution when the constitution is not clear, including scope of Congress's power
 
➞ The SCOUS can declare an act of congress unconstitutional
 
➞ When a statute and the constitution conflict, the constitution prevails
 
Power to Review State Court Judgments
 
The Court has the power to review federal constitutional decisions of a state's highest court [Martin v. Hunter Lessee, Arose after the highest court in VA refused to follow the supreme Court]  
– Article III grants appellate jurisdiction over all cases arising under theConstitution – Not just those started in federal court
 
– The supremacy clause implies that the state courts must use federal law and any decision a state judge rendered that implicated the Constitution could trigger the Supreme Court's Jurisdiction under Article III to hear cases. 
– There is no state sovereignty over constitutional interpretations, it is imperative that the Constitution have a single final interpreter, so that there would be uniform federal law throughout the country. 
 
➞ Uniformity: If every state court could interpret the Constitution in it's own way, there would be 50 constitutions, not one ➞ Federal laws should not be subject to state prejudices and sate interests which might be perceived to obstruct the regular administration of justice
 
Fed Issue: Whether SCOUS can hear appeals from federal law issues from state courts?
 
– SCOUS argues that the constitution gives the federal govern’t power over states, that judicial branch has power over state courts ➞ AKA a larger power includes a smaller power
 
➞ Rebuttal: fed can abuse
➞ Re-rebuttal: not good argument b/c any power can be abused.
 
Who is the final interpreter of the Constitution?
 
– The judiciary ➞ The Supreme Court of the United States ➞ Unless, gives the power to        the President or Congress
 
** The Supreme Court has developed the political Question Doctrine to avoid interpreting certain constitutional provisions, where there is no authoritative interpreter or a different branch of the government is the authoritative interpreter
 
3 Views of Judicial Power ➞ The way you perceive a courts role and perceive how a judge should do their job will effect how you will interpret every provision of the Constitution.
 
1.    Mansfield v. Blackstone (Non Interpretivists) – Read the constitution to better society (create a better world)
 
            a. The idea is based on the concept that judges are morally elite
 
            b. Faith in wisdom of the judges because they are moral elite
 
            c. Ability to reason thru any problem or issue
 
            d. Judges can restrain themselves and check their own Values (Ultimate        check)
 
Arguments for judge of this mindset: Natural Law, Essential Justice, Morality, Social Necessity.
 
2.    Common Law:
 
A. Appropriate to interact critically w/ earlier arguments & authority
 
            1. Necessary to pay special attention to views & actions of lawyers displaying virtues of       the tradition. (Process of legal decision making) ➞ when you encounter an opinion from   a judge who was a really great judge you trust his opinion)
 
            2. Creative elements exists in proper interpretations of legal rules.
 
            3. To what degree may we consider political & moral interpretations.
 
            4. Can I solicit views outside court? – to what extent is it limited to the parties or        influences by 3rd parties who don't have a stake in the outcome
 
            5. Balancing btw. judicial self confidence v. awareness of my ability to be wrong?    (Whats going on in my brain)
 
B. Check on Judicial Power: Const. Amendments, Impeachment, Political Process, Jurisdiction
 
3.    Stare Decisis (Fixed approach) ➞ If you believe that judges need to be very deferential to the democratic process, Under the Commerce Clause you will opt for lots of deference
 
a. Judicial restrained doesn’t work: if you give people power they are going to abuse it, need to make sure institutional restraints prevent people from getting out of control
 
b. Judicial humility (recognition judges are people, are likely to get right        and wrong)
 
c. Respect for Democratic Values (political process): if peoples elected representatives think something is consistent with the constitution then that decision should be respected and defer to them to fix any problems
 
Arguments: text/ context (read as to what it means today, not to create a better world), Original Intent, Precedent
 
Ways of Interpreting the Constitution
 
Interpretivists: Only interpret the written text and the original intent of the drafters of the constitution at the time of its adoption.
 
– The meaning must be associated with the words of the document and is limited by the word of the constitution ➞ Looks to the elements
 
– The amendment process is the only way to change the constitution and       therefore do not want the supreme court to recognize rights that are not expressly enumerated in the Constitution
 
Non-Interpretivists: Do not try to figure out what the text of the constitution means, the constitution is a living document that evolves over time ➞ Use when no explicit in Constitution
 
➞ Makes room for unenumerated rights like the right of privacy
 
1. Natural Law: There are objective moral principles embedded in the nature of the un