Constitutional Law – Colby

I. Introduction

1. Con Law I= Structure and the nature of the federal government. It is about the relationship between the federal government and the states. It introduces and explores themes about the nature of constitutionalism and our themes.

2. Where did the constitution come from and what was it designed to do?

a. History: According to the independence declaration, each of the colonies is an independent nation. In 1777, Articles of Confederation made and in 1781 put in place, but it was apparent in a year or two that the articles are a complete failure.

b. Problems with the Articles:

(1) Under the Articles, the national gov’t (legislature) is too weak and doesn’t have the power it needs to coordinate the activities of the states.

i. There is not judiciary or executive. There is only a Congress with a small number of limited powers (no taxation power).

ii. Each state makes their own currency and states work with foreign governments.

(2) It is impossible without a federal authority to get the states to work together.

i. The states start taxing and discriminating against each others goods. The American economy after the war was failing fast.

ii. “States are untied by nothing more than a rope of sand”

(3) Delegates were sent to a Constitutional Convention and empowered to propose amendments to the articles of confederation, but they produce a new constitution.

i. Constitution is unconstitutional because the articles could only be abolished by all state legislature & framers used conventions.

3. Nature of the Constitution

  1. When the framers met in Philadelphia, they had one goal—to make a real effective and functional national government. They still had serious reservations about doing it b/c as the declaration points out, governments do not always protect your liberties. The framers were also concerned about protecting state sovereignty. Wanted to create a central government for people afraid of central government.
  2. Federalist 45 (Madison)

(1) Federalism

1) People not states

a. States rights are irrelevant except that they preserve the rights of individuals

2) States are still very powerful

a. states role in federal elections

b. federal government has limited powers

  1. Federalist 51 (Madison)

(1)Separation of Powers (authored by Madison)

1) Essential for Liberty

  1. If all three brought together there will be tyranny.
  2. Localized government presents a danger that self-interested factions will take over. He says that central government will be too large to be taken over by a faction.
  3. True end of government is justice meaning liberty for all

2) Complete S.O.P unnecessary

3) Checks and Balances

a. You institute a government that will put a check on any one institution that tries to usurp the power of one branch. Each one will protect its own turf from the others.

4. Constitutional Interpretation

A. Textualism –Typically, we start by reading the language of the statute. Sometimes you can find your answer in the text (ie-how old do you have to be to run for president).

  1. Where do we turn when the constitution doesn’t answer the question? On this issue there is a fundamental divide btw legal scholars.

B. Originalist: Constitution means today what it has meant from day one.

  1. The same question should always produce the same answer without amendment. (doesn’t mean originalists won’t overturn cases).
  2. Pro-Originalism

(1)consistency /predictability

(2)objective/democracy: This protects democracy because it keeps unelected judges are striking down the will of a legislature (and the people).

(3)Contract: Constitution is a social contract among our society. When you vote to ratify it, you can’t vote to change the meaning.

c. Originalism tends to produce politically conservative results (originalists=political conservatives)

C. Non-originalist: Framers intended to paint with a broad brush and it should be read to evolve.

  1. View Constitutional law like common-law, interpreting the constitution in the same way to protect broad principles and values.
  2. Con-Originalism

(1) Impossible: Originalism is impossible in practice. We don’t know what freedom of speech, due process originally meant. The non-originalists will say you can’t get an accurate view and people take the historical sources they want and act as though they are tied by them.

(2)Legitimacy: Non-originalists say the consitutiton is binding because we choose to accept that it. If tomorrow enough of us rose up to draft a new constitution, we would be bound by that. People accept the constitution because it keeps up with our changing notions of liberty and equality.

(3)Protect Minorities: Non-originalism protects minorities better. Non-originalists are less concerned about democracy because they believe the danger of democracy is the tyranny of the majority. We need judges to mitigate the tyranny of the majority and stand up for the weak, the unpopular, and the oppressed.

c. Non-originalism tends to produce politically liberal results (non-originalists=liberals). Is this all about politics? Ideology not non-originalism?

D. Summary of Different types of Constiution Interpretation

a. Originalist

  1. Determining what the terms meant to the Framers
  2. the framers were the framers
  3. claims not to be activist.

problematic

  1. some argue originalists simply make up their mind and pick and choose historical argument
  2. the framers quarrlled—there were always too sides to a debate
  3. many did not write

b. Textualist

  1. taking inferences from the text.

c. Structuralist

  1. many facets of Con law are not in the constitutional text
  2. separation of powers
  3. Federalism
  4. Judicial Review.

d. Formalism

  1. looks at the text and form of the constitution.
  2. dispises functionalism because it is impossible to apply in a judicially neutral manner.

e. Functionalism

  1. looks at the function consequences of the action
  2. looking at the real world consequences and matching with the basics of the constitution.
  3. applies often to Seperation of powers
  4. Does this tip the scales of the balance
  5. Does this undermine one branches ability to do its job.
  6. Problems
  7. The real world effect is never quite predictable
  8. The court is very removed form the real world
  9. Hard to apply in a neutral manner

d. Bad functionalism has real problems Morrison, and Clinton

II. Judicial Review

A. Marbury and Supreme Court Power of Judicial Review

1. Marbury v. Madison establishes Supreme Court’s power of judicial review over federal laws and executive actions (review the constitutionality of actions).

  1. The constitution give no express grant of judicial review or power to strike down laws.

(1) Congress must uphold the same laws as courts. So why shouldn’t Congress decide what is or is not constitutional?

2.Marbury v. Madison:Marbury is Adams appointee as a justice of peace for DC. Madison is the secretary of state for Jefferson. The appointees were last minute and they were signed and sealed but not delivered. Madison refuses to deliver the commissions and Marbury is mad because he is not getting his commission and he runs to the Supreme to get a writ of mandamus (court order  ordering somebody to do what they are legally obligated to do).H: In the political background is that the role of the Supreme Court, the fate of Marshall, and political parties are all in the balance. The issues are: (1) Right (to the commission);(2) Remedy (to protect that right); and (3) Mandamus (is it proper). Marshall says (1) Yes-delivery=formality; (2) Yes. where there is a right then there is a remedy; (3) No. Mandamus is the proper remedy but not from the Supreme Court. The Judiciary Act of 1789 § 13 specifically provides that he can sue in original jurisdiction under the Supreme Court. However, it is in conflict with Article III providing for original jurisdiction only in specific cases and the rest only appellate jurisdiction. Therefore, the statute conflicts with the constitution. Marshall says the Supreme must strike down such unconstitutional laws.

a. Judicial Review:"It is emphatically the province and duty of the judicial department to say what the law is." Textual Argument= (1) Article III: gives the judiciary jurisdiction over cases arising out of the constitution; (2) Constitution provides that judges must take an oath to uphold the constitution and therefore, since judges have sworn to uphold the constitution, they must strike down laws that conflict with the constitution; (3) Supremacy Clause: laws pursuant to the constitution are the supreme laws of the law. Non-textual: (1)Court’s role & expertise what we do and what we are good at because in Federalist 78 judges interpret using judgment whereas politicians use will (will what they want to happen and they make it happen). (2) No Omnipotent Congress : If the congress can pass whatever they want, they are only constrained if they feel like it. We can’t let the fox guard the hen house? Is there no check on the Congress?

B. Judicial Supremacy

1. How far does the Supreme Court’s power extend here? Strands of Marbury: (1) Marshall says we have to determine the constitutionality of statutes; (2) We are the experts so our opinion is the one that matters.

  1. In Cooper v. Aaron, where Governor of Arkansas claimed he didn’t have to follow Brown b/c he wasn’t a party, the Court held their rulings were the supreme law of the land (they had the power to say what the constitution means) & their decisions are binding on everyone (everybody has to follow it—State, Federal, Federal Officials)

(1)The broad interpretation of Cooper is not always followed to the letter by the President and Congress.

a. Congress often enacts similar laws to those struck down

b. President stops or continues enforcing similar laws

c. Even if the Court says something is constitutional, the Congress and the President may exercise their discretion not to enact a law.

i. Presidential refusal to may be is constitutional problem

1) It may also be discretionary (eg-porn)

(2)Ed Meese even suggested that Cooper is at war with the constitution. A particular government or party must follow it but they others don’t have to follow it.

(3)Ways of fighting back: 1. try to name and confirm new justices; 2. senators will try to interject things in a way they think something is illegitimate; 3. In extreme cases, the political branches overrule the court by amendment; 4. Congress can tinker with the law.

(4)Unless Congress, the President and the people agree, there is no judicial supremacy. The court can do nothing unless the president respects and enforces it. Somebody has to have the final say. Courts are experts and can protect against the tyranny of the majority.

a. Sometimes the court has to spend its capital, testing the public and the politicians’ capacity for deferring to the Court.

III. Limits on Judicial Review

-Know how these doctrines restrain the court

A. Political Question Doctrine

1. Political Question: the constitution entrusts some issues to the political branches of government and not the judiciary.

2. Baker v. Carr Multi-factor Test (Brennan)[i=argument that everything can pass test]

(1) Textual Commitment

  1. Is it given to a branch?

i. Powell (something said directly in the text) v. Nixon (nothing directly in the text on point)

(2) Lack of Standards

  1. If there is no guidance then it is non-justiciable and the political branches should figure it out

(3) Policy Determination

  1. Court cannot decide without making a policy determination

i. Frankfurter argues that Court is always called upon to make policy determinations in their decisions.

(4) Respect for other branches

  1. Court should defer to other branches

i. Is it disrespectful to disagree?

(5) Unquestioning adherence

  1. Is this a question presenting an unusual need for no questioning

i. Some would say when is there ever a case where the court should unquestioningly adhere to unconstitutional actions.

(6) Avoid Embarrassment

  1. Don’t want to second-guess US leaders in sensitive areas like foreign policy. One voice for the Country rationale.

i. Some would also argue same as above.

Baker v. Carr: пs are a group of voters from Tennessee who are upset with the state assembly

y who has not updated its political boundaries since 1901. The city gets fewer votes in the legislature and they think it violates their equal protection rights under the 14th amendment.B: There are three areas where they have said are political questions: 1. Foreign Affairs (because the constitution clearly says that the president can do it; 2. Validity of enactments (Coleman v. Miller: what happens when a constitutional amendment is proposed and how long it can stay active); 3. Guarantee Clause (US guarantees to every state a republican form of government) court has held that this is non-judiciable. Comes from the Rhode Island case when they couldn’t decide who was the illegitimate government of Rhode Island. Does California’s ballot democracy violate the guarantee clause? Courts have said non-judiciable. H: Baker represented a sea change in the political question doctrine; it narrowed the doctrine allowing the court to get into various “political questions.” The instant case deals with separation of powers and equal protection –not what is a lawful state gov’t D: We cannot decide the ultimate constitutional question without making a policy determination about the best way to structure a state government (one person/one vote may not be the best system).

3. Congressional Activity & Political Question Doctrine

  1. Court forces the Congress to set Adam Clayton Powell because he met all of the qualifications of Art. II, § 2 and the Congress cannot make up new ones.

(1) After the Powell case looks like the political question doctrine is dead.

(2) Doesn’t matter if “Each House shall be the judge of the qualifications of its own members.

4. Impeachment & Political Question Doctrine

  1. In Nixon v. United States, where District judge who was impeached objected to only special committee hearing evidence not whole senate, Court held that senate impeachment procedures were non-justiciable because there is a textual commitment to the senate shall has the sole power to try all impeachments and “try” demonstrates a lack of standards.

5. Foreign Policy & Political Question Doctrine

a. In Vietnam, President put us into war but Congress never declared war. So a drafted soldier says this is illegal and unconstitutional. This is definitely a political question because, will the Court really say that everything we have done will be illegal and that citizens sons died for an illegal act?

6. Should there be a political question doctrine?

  1. The answer tends to turn on the role you see for the court. Should it be a strong institution that stands up for its interpretation against other branches? Or do we want the legislature making these decisions not unelected juges?
  2. Souter: Court should stay out of highly political questions unless Congress interprets it in a way that is inconsistent with the constitution that there is no valid legitimate role for their actions.
  3. Might believe that liberals hate political question doctrine and conservatives might love the political question doctrine. Today, the Rehnquist Court has a lot of liberals whining about the political question doctrine like the presidential election and a lot of conservatives defend the court.

B. Limits on Judicial Power: Advisory Opinions, Ripeness, Mootness, Standing

1. Art. III, §2 limits the Jurisdiction of all federal courts to "cases and controversies," requiring federal courts to deal only with real and substantial disputes that affect the legal rights and obligations of parties having adverse interests, and that allow specific relief through a conclusive judicial decree.

2. Supreme Court may not issue Advisory Opinions.

  1. Courts are not allowed to answer questions on the legality of executive or legislative actions without a specific case or controversy (some state courts do allow it).

(1)There is nothing specifically in the Constitution against advisory opinions just says judicial power extends to cases and controversies

  1. Pro: Efficiency, teamwork, expertise

c. Con: unconstitutional, respect for adversarial process and other rbanches, judicial independence, judicial restraint, context

3. Ripeness, Mootness, and Standing are all required to be in Federal Court

(1)Ripeness (Timing—When you can sue): File a lawsuit too soon before a case or controversy has developed; it is unripe.

  1. Bill is pending in Congress that will hurt your rights, you can’t challenge it until it is enacted.

(2)Mootness (Timing): There is no case or controversy between the parties. If you wait too long, the case becomes moot and the courts must dismiss it b/c there is no longer a vigorous adversarial process.

  1. Ex--If my neighbor is having 3am parties and I sue him to keep it down to 11pm and he then moves to Sweden during litigation, no longer a live issue

(3)Standing(Who can sue?): Does this п have standing to challenge this action.

  1. The court demands an action injury that could be remedied by a lawsuit. (need a real stake).

(1)Whether we want a narrow or broad standing doctrine turns on what we think of our judiciary in society. Some people the court should only decide what it has to. Other think a more robust doctrine b/c we don’t want unconstitutional government decision and we want to prevent rights being violated.

C. Judicial Review of State Court Judgments

1. Supreme Court can review state cases involving federal law and/or constitutional issues.

a. It was clear in the constitutional convention that the Supreme Court had the power to review state court judgments, but it does say so in the constitution.

2. Relevant Clauses:

  1. Art VI—“ The Constitution, and the laws of the United States…shall be the Supreme law of land; and the judges in every state shall be bound thereby.”
  2. We know under Marbury that judges need to follow the US Supreme Court’s decisions—might not mean that judges get to review decisions.

b. Art III, § 1—“The Judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the congress “may from time to time ordain and establish.”

i. There don’t have to be lower federal courts and that would be ok.