Constitutional Law II Outline

Constitutional Law

Beery

Fall 2012

Approaches on the Exam

v Three Approaches to Constitutional Law Analysis

1. Traditional/Interpretive: most judges fit into this category. Constitution is law so treat like any other statute. Look at:

a. Text – this is what the constitution says

b. History of Constitution – look at the history

c. Structure – structure of the document suggest separation of powers” and “federalism”

d. Precedent – what other courts said

2. Fundamental Rights/Natural Law: even though not in the constitution, it is there because understood as a fundamental right

3. Process Approach: anything congress does is fine, unless there is something goofy with the process used.

a. Idea behind theory – if a certain group of people are not represented in the process of making a law, then something is wrong with the process

Judicial Power – Supreme Court’s Authority

A. Source of Federal Judicial Power

1. Article III, § 1 states that the “judicial power of the US shall be vested in one supreme court and in such inferior courts as the congress many from time to time, ordain and establish”

2. Judicial review: is when the Supreme Court has been asked to decide whether certain government decisions of practices are invalid because they violate the Constitution. This process by which courts rule on the constitutionality of actions taken by federal and state officials is known as judicial review.

B. Scope of Federal Judicial Power – Article III

1. The federal gov’t is a gov’t of limited powers, which means that for federal action to be legitimate, it must be authorized. The constitution is the instrument that authorizes the federal government to act. Thus whenever a question involves action by an entity of the federal gov’t, the action will be valid only if it is authorized by the constitution.

The constitution authorizes a federal court system in Article III, § 2, limits the types of “cases and controversies” the Court can hear to:

i. Arising under the constitution, Laws of the US and treaties

ii. Of admiralty and maritime jurisdiction

iii. In which the US shall be a party

iv. Between two or more states

v. Between a state and citizens of another state

vi. Between citizens of different states

vii. Between citizens of the same state claiming lands under the grants of different states

viii. Between a state or citizens thereof and foreign states, citizens, or subjects

ix. Affecting ambassadors, public ministers and consuls

*The federal judicial power does not include cases where both parties are citizens (ex. residents) of the same state, and no federal question is raised.

C. Power of Judicial Review

1. Within federal system, three coequal branches

2. 3 Branches have both independent and overlapping authority

i. Article I: legislative power: To make laws and alter them. –(power vested in Congress- House of Reps & Senate)

ii. Article II: executive power: To enforce the laws (power vested in the President)

iii. Article III: judicial power – to say what the law is (Supreme Court)

*This division of authority is part of a structural separation of powers in a system of “checks and balances.

Nature and Scope of Judicial Review (Justiciability) (Chapter 1)

· Main concept: The federal judiciary has the power, under Article III, to decide what types of cases and controversies, the Supreme Court may here, so long as it does not expand or restrict the Court’s jurisdiction beyond the Federal judicial power summarized above. The scope of this power includes the power to:

– Declare the meaning of federal law

– Decide the constitutionality of federal and state laws and the acts of federal and state officials

· Congress may also decide what lower federal courts there should be, and what cases they may here.

· Congress may give parallel jurisdiction (authority) to lower federal courts and has done so regarding all case except those between states.

v Judicial Review of Federal Acts

Original Jurisdiction of the Supreme Court – The Constitution gives the Supreme Court (not Congress) the authority to review statutes passed by Congress (acts of Congress) and invalidate them if they violate the Constitution.

Review of Acts of Congress: Under Article III, §. 2 the Supreme Court has original jurisdiction “in all cases affecting ambassadors, other public ministers, and consuls and those in which a state shall be a party.”

· Ex. Marbury v. Maddison – What branch of the government shall have the final say in interpreting the Constitution? This case established that the Court has the authority (and the duty) to declare the statute unconstitutional and to effuse to enforce it.

– The Court (federal judiciary) has the power of judicial review. The Court may review the constitutionality of actions taken by the legislative and executive branches of the national government. The Court (not Congress) has the power to make the determination whether, in a particular case, an act of Congress is unconstitutional. If those actions are found to be in violation of the constitution, federal courts may refuse to honor or enforce them. Once the Court has spoken, the President and Congress are not entitled to their own opinion.

– Some matters – such as whether to veto a bill or who to appoint for office – are entirely within the president’s discretion and cannot be judicially reviewed. But where the executive has a legal duty to act or refrain from acting, the federal judiciary can provide a remedy, including a writ of mandamus.

– Criticism of Marbury: Critics argue that nowhere in the Constitution is it stated that the courts (not Congress), ought to decide whether a given statute does in fact conflict with the Constitution. This is because Congress generally responds to the majority’s will, and since one of the key functions of the Constitution is to protect the rights of minorities, the Court (judiciary) will interpret the Constitution in a way more sensitive to this minority-protection goal

v Appellate Jurisdiction of the Supreme Court: Article III, § 2 further states that “in all other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”

Review of State Court Decisions: When the Supreme Court reviews the judgment of a state court, it is exercising its appellate jurisdiction, rather than its original jurisdiction. Article III, §2, provides that the Supreme Court’s appellate jurisdiction may be regulated and limited. The appellate jurisdiction of the court extends to state courts on federal questions. Exam Tip: with state court issue write (under Martin v. Lessee) the court has the authority to rule on a state court issue.

· Ex. Martin v. Hunter’s Lessee – In dispute over land a Virginia court ruled in favor of the state’s authority to have taken and disposed of the land. US Supreme Court reversed this decision, but VA co