27
Marina Bezrukova
American Constitutional Law Summary by Marina Bezrukova
Sheppard Winter 2001
Marbury v. Madison (1803)
(1) establishes the legitimacy of the judicial review in deciding what's constitutional.
(2) represents the strict, text based reading of the Constitution.
╚> judges must assume the role of interpreters and guardians of the Constitution. Americans have a right to an established Constitution and the Framers contemplated that any law 'repugnant' to the Constitution is Void. It is the Judiciary's duty to strike down 'unconstitutional' legislative acts by not enforcing legislation when in conflict w/the Constitution.
╚> Marshall's key justifications for the legitimacy of Judicial review:
1. Constitution as Supreme Law - Based on article 6 that Constitution. takes precedence. Marshall concludes that if legislatures (Congress) can act repugnant to the Constitution., then what's the point of having a Constitution?
2. Written Constitution - The power of the legislature is defined and cannot be forgotten b/c it is a written document (easier for judges to interpret) and is absolutely clear, so there is no inconsistency. (but in fact, not so clear)
3. Judicial Role - Judges are specifically well placed and it is their role to say what the law is (i.e. judges have a particular role to place in interpreting and upholding the constitution, and they take an oath = role of overseers/guardian of the Constitution).
McCullock v. Maryland (1819)
(1) established the tradition of the Expansive Interpretation of the Constitution, which would allow it to endure years, and to be adapted to the various crises of human affairs;
(2) states that Congressional powers are not limited to the express grants in Art. 1, but includes such power as is necessary and proper to the effectuation of the express powers.
╚> Judge Marshall is moving away from mechanical interpretation to a more expansive/fluid/purposive/living tree interpretation of the US constitution
╚> Necessary and proper - does not have a fixed meaning
╚> Implied Powers: Not all of the powers are described in the constitution, powers “not delegated to the United States, nor prohibited to the States, are reserved to the States or to the people” (10th Amendment). Maryland tried to argue that these powers belong to the States. Marshall responded: “any means adapted to the end, which tended directly to the execution of the constitutional powers of the government, were in themselves constitutional” (so first establish the right per the constitution, then the means flows from it)
╚> the Constitution is just an outline “its nature requires that only the great outlines should be marked, its important objects designated ...” And the “provisions made in the constitution were intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs. Thus the constitution is not the same thing as a common law statute, not all is set out in detail so that there is room to accommodate new circumstances
Dred Scott (1857): In holding that slaves are not citizens and hence can't have rights under the Constitution, the court (1) claimed that the ethics and law are separate and courts should not decide on justice of law; (2) engaged in strict, textual interpretation of the Constitution and framers' intent.
Cherokee Nation (1831): in holding that the Court did not have JD to hear Indians' claim against Georgia, the court again claimed that judges' feeling of sympathy, justice and fairness should not govern their strict textual interpretation of the Constitution.
Protection of Liberty with Due Process (14th Am): from Lochner Era to Substantive Equality
Lochner Era
Around 1900s, the US courts began to use due process to challenge state and federal economic regulations.
Demonstrates:
(1) Wrong type of judicial activism, because it was based on juridical abstraction divorced from social and economic realities of the era. Lead to the issue of formal v. substantive equality.
(2) There might be tension between Freedom v. Equality when an increase of freedom (Freedom of K) decreases equality (equality of bargaining power).
(3) Lack of judicial deference to the Legislature which lead to the application of strict scrutiny, rather than "minimum rationality", to the economic regulations.
(4) Expansive definition of "liberty" in the 14th Am which reads in values not explicitly entrenched in the Constitution -- good for subsequent development of the Modern Substantive Due Process.
Allgeyer v. Louisiana (1897): Interpreted liberty in the 14th Am as "liberty of contract"
╚> " The liberty…means not only the right of the citizen to be free from the mere physical restraints of his person, as by incarceration, but terms…embraces the right of the citizen to be free in the enjoyment of his facilities, to be free to use them in a lawful way, to live and work where he will, to each his livelihood, and for that purpose to enter into all contracts which may be property, necessary and essential to his carrying out" his life.
Lochner v. New York (1905): Example of "judicial abstraction" and judicial activism
╚> The majority strikes down state leg-tion limiting working hours of bakers to 10 hours a day.
╚> while acknowledging that the state has police powers (to protect health, morals), the majority refused to see any justification for the state's intervention here (1) no labor issue: bakers are autonomous persons with equal bargaining power; (2) no health concern: factual evidence used by Harlan (dissent) did not meet stricter scrutiny of the majority.
╚> Criticisms of Majority:
(1) Institutional criticism: no deference to the legislature (judicial activism); used by Holmes (dissent)
(2) "Mechanical jurisprudence" and "judicial abstraction": failure to see reality of health and labor concerns. Court has a mythical image of an autonomous and equal employee.
(3) "Expansive view of "liberty" and "property' to include values not explicitly stated in the Constitution.
╚> BUT, if we accept this criticism, it is hard to use "liberty" in protections of noneconomic right like civil liberties, abortions.
(4) "Unjustified stricter scrutiny": the conferral of an especially high value on liberty of K without adequate justification for stricter scrutiny. Instead, should have accepted a "mere rationality" standard (simply show a rational connection between the ends and means"). Stricter scrutiny should be used where the rights are fundamental.)
╚> Note: the retreat of the modern courts from interventionism in the economic area had taken the form of extremely deferential scrutiny of a " minimum rationality" and not via a shrinking of meaning of "liberty."
Muller v. Oregon (1908) Lochner court accepts substantive equality b/c women are "weak"
╚> the court upheld law limiting work hours for females in factories and laundries because there is "difference between the two sexes", "women's physical structure" puts her at disadvantage.
Adkins v. Children's Hospital (1923) Civil inferiority of women is a "vanishing point"
╚> court strikes down minimum wage for women because it violated due process: "liberty of K could not be subjected to greater restriction in the case of women than of men."
Demise of the Lochner Era:
· Beginning with 1930, courts began to retreat from judicial activism toward extremely deference scrutiny of "minimum rationality" standard in testing whether alleged infringements of economic liberties were justifiable.
· While withdrawing from careful scrutiny in most economic areas, it has increased intervention regarding a range of non-economic personal interest not explicitly protected by the Constitution.
Nebbia v. New York (1934) Judicial deference is a must provided there is a "reasonable relation"
╚> court upheld minimum price of milk to ensure that production of milk is covered by its cost
╚> Property and K rights are not absolute;
╚> a state is fee to adopt whatever economic policy may reasonable be deemed to promote public welfare..
╚> TEST: The courts are without authority to override it. If the law passed are seen to have a reasonable relation to a proper legislative purposes, and are neither arbitrary, not discriminatory, the requirements of due process are satisfied.
West Coast Hotel (1937) Judicial deference and substantive equality based on social reality
╚> court upheld a state minimum wage law for women, based on social reality of weak bargaining powers and necessitous circumstances of women (overruled Adkins and rejected biological justification)
╚> Court uses "minimum rationality" standard to justify state's power: "Legislative response…cannot be regarded as arbitrary…and that is all we have to decide. There is a compelling consideration which recent economic experience has brought into light… the exploitation of a class of worker" with unequal bargaining power."
US v. Carolene Products (1938) Presumption of Constitutionality
╚> "even in the absence of evidence, the existence of facts supporting the legislative judgment is to be presumed."
Federalism in the Context of Commerce Clause
Using the broad interpretive approach to implied powers adopted by McCulloch, it can be said that the commerce power encompasses federal regulation of local activity when such regulation is reasonably appropriate to the effective regulation of interstate commerce. Such power however is not absolute.
Regulation of local activity:
(1) is valid under the CC if meets the Lopez/Morrison test:
A. The regulated activity must fall within one of 3 categories of activities. (1) channels of interstate commerce
(IC) (2) instrumentalities of IC (3) activity that has substantial effect on IC.
B. The activity, which in aggregate has substantial effect on IC, must of economic nature. The offensive
conduct must be directed at instrumentalities, channels, or goods involved in IC, as opposed to having an
attenuated indirect effect. No "cost of crime" and "national productivity" arguments when activity is not
economic.
C. While Congress has no obs show factual proof to the connection of the activity to IC, the existence of such
evidence would help the court to establish such connection, where it is not obvious to a naked eye.
(2) is not valid when it invades the province of state sovereignty reserved by the 10th Am by commandeering States (as opposed to giving incentive) to enact and enforce federal regulatory scheme: NY v. US, Printz v. US.
The court should not loosen judicial review of constitutionality (court's task as per Marbury) simply because
(1) states have ratified Federal law (reject cooperative federalism)
(2) there are "built-in restraints that out system provides through state participation in fed gov action (end run
around Garcia)
(3) cannot be justified on the 14th Am grounds which allows Congress to prohibit only state, as opposed to private, action: Morrison.
1. Article 1 Limits on CC
· Beginning in 1937, the Court has showed great deference to congressional action under the Commerce Power. Wickard was a heyday of judicial deference; allowed feds to regulate how much grain a farmer can grow; used "aggregate effect" test to say that if all farmer will overgrow above the limit, this will drive prices of wheat down. In Lopez and Morrison, the majority indirectly reject this test, by saying that the aggregate effect alone is not enough to justify legislation.
· CC was used by the Feds to justify civil liberties legislation: e.g. Heart Atlanta Hotel, where fed law prohibiting discrimination of black by hotels, was justified under CC
Lopez v. US (1995): End to Judicial Deference; Setting the Limits on Congressional Commerce Powers
Facts: Congress tries to justify under the CC legislation prohibition possession of guns in school zones.
Held: unconstitutional
1. gun possession at school is not an economic activity and as such has no nexus to IC.
2. No convincing factual findings (only inferences, built upon inferences)
3. "Slippery slope" -- if gov is allowed to regulate such local matter (education), it can regulate virtually anything.
4. Judges must not forget the written text of the constitution; since 1937 courts have began to expansion of CC which obliterates any distinction between what is national and what is local.
Dissent: Congress must only show a rational basis
1. judicial deference and the duty to assess the rationality, not soundness, of concluding that a jurisdictional basis exists.
2. accuses the majority of categorical formalism in separating economic v. non-economic activities.
3. rejects the slippery slope argument (it can be made in many cases)
4. the principle of stare decisis convinces judges to be deferent. Must learn the lesson of Lochner ear where such deference and principle were abandoned.
US v. Morrison (2000): Limits on Congress's Commerce Clause (Art 1, s. 8) and 14th (Section 5) Powers
Facts
Violence Against Women Act, which gives civil remedied to victims of gender-hate crimes, is challenged. The fed gov tries to justify it:
(1) under Commerce Clause (3rd point below): gender based violence has effect on employment in interstate business, diminishes national productivity and demand for interstate products, increase medical/other costs.
(2) under Congress's power to enforce 14th Am (i.e. person's life, liberty).
Held: Legislation is invalid
Commerce Clause
╚> generally, Congress has been given greater latitude in regulating conduct and transactions under the CC than in previous cases. However, this regulatory authority is not without effective bounds.
╚> modern CC jurisprudence has “identified three broad categories of activity that Congress may regulate under its commerce power":
1. Congress may regulate the use of the channels of interstate commerce.
2. 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 intrastate activities.
3. Congress’ 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.
╚> Court will sustain federal regulation of intrastate activity based upon the activity’s substantial effects on interstate commerce if the activity in question has been some sort of economic endeavor.
╚> The connection b/n interstate trade and the aimed activity should be more than attenuated. It is not enough to show the aggregate effect on interstate commerce. The offensive conduct must be directed at the instrumentalities, channels, or goods involved in the interstate commerce.