Constitutional Law I – LaCroix 2007
I. Themes and Origins of the Constitution
A. Bindingness: text of C can stand in way of contemporary majorities in a way that is in tension w/ principles of democracy
1. Solutions
a. Formal amendment process
b. Interpretation of text that seems inconsistent w/ text, but consistent w/ majority preference
c. Accepting but minimizing consequences
d. Political theory – questionable supremacy of the constitution
B. Origins
1. Articles of confederation – derives sovereignty from the states
a. Understanding: states would remain sovereign
b. Gaps it had
i. No power to tax – fed government had to ask states for money
ii. No power to regulate commerce
iii. No executive authority
iv. No general national judiciary
v. Fed government had no power to interact with individuals directly, just through states
c. Madison’s complaints about articles
i. People weren’t anywhere in it
ii. Need something more coherent than a league
iii. No ability to enforce anything
2. Constitutional Convention – unlawfully went beyond limited task of improving the article of confederation
a. Madison’s republican theory relied on civic republicanism/virtue
b. Jefferson thought constitution should be amended every generation
c. Antifederalists were opposed to dramatic expansion of power of fed government
i. Didn’t like representatives – removed the people from the process
ii. New emphasis on commerce
iii. Wanted a weaker Supreme Court
3. Madison, Federalist No 10
a. Can’t control source of factions so control effects by
i. Representative government with large election districts, long length of service, so wise men who will filter the majority faction’s will – saw many heterogeneous views as a good since limited power of factions
b. Bicameralism designed to have some representatives in touch with people, some removed – Art I, § 7
4. Madison, Federalist No 51
a. Branches should have little to do with selection of those in other branches – separation of powers
b. Need to have opposite and rival interests to balance power, legislature by nature the strongest
c. The division of state fed power also ensures rights
5. Checks and balances
a. Maximizes power of the people by fragmenting government’s power
i. Vertical: states v federal government
ii. Horizontal: allocation of power between branches
b. But also maintains status quo, insulates existing practices, including distribution of wealth, from democratic process
c. Court intended to keep things out of political sphere, boundaries unrevisable by temporary majorities
6. Parts of the constitution – source of authority is the people
a. Art I – creates bicameral congress
i. This is the longest part, all the hopes were with congress
b. Art 2 – creates executive
c. Art 3 – creates judiciary
d. Art 4 – full faith and credit
e. Art 5 – Amendments and process of amending
f. Art 6 – supremacy clause
g. Art 7 – how to get government up and running
II. Judicial Power
A. Judicial Function and Review
1. Foundations
a. Marbury v Madison: it is the duty of the court to say what the law is, the court is authorized to enforce its interpretation of C on other branches
i. Narrow: SCOTUS cannot command the executive to grant the commission b/c law enabling it to do so is unconstitutional
ii. Broad: SCOTUS has power of judicial review; authorizes judicial interpretation of the C as the supreme interpretation
a. Reasoning: authorizes courts to interpret the law against all other branches of gov’t; establishes judicial review by holding that SCOTUS can declare acts of Congress unconstitutional
b. Political Actors: where branches act as political agents or where executive possesses a constitutional or legal discretion, the acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend on performance of duty, individual who is injured has a right to resort to law for remedy
b. Hamilton, Federalist No 78
i. Courts decide on constitutionality of legislative acts because constitution is will of people and legislation is will of congress
a. Court to act as buffer / check between legislature and people
b. But – legislature is closer to people than court, so maybe easier for them to interpret the will of the people manifest in the constitution
2. Judicial Review of State Laws
a. Fletcher v Peck: states sovereign only to the point that they are members of a larger union, thus state law can be invalidated if it is in conflict w/ the C
b. Martin v Hunter’s Lessee: appellate power to review state court decisions of federal law lodged in SCOTUS by Judiciary Act of 1789
i. Reasoning: the appellate power extends to “all cases and controversies” which implied jurisdiction is tied to the case, not the court
c. Cohens v VA: SCOTUS could exercise jurisdiction over decisions of state courts in criminal cases and in cases where state is a party
i. Reasoning: Art 3 allows SCOTUS to exercise jurisdiction over “all” cases arising under the C and federal law
3. Judicial Supremacy
a. Cooper v Aaron: SCOTUS is the ultimate interpreter of C and other branches should not interpret C themselves, but should look to SCOTUS’ interpretation as the correct interpretation
i. Reasoning: this is an extreme extension of judicial review in Marbury; courts serve as the ultimate guardian and buffer b/w Congress’s legislative power and the Constitution
ii. Problem: if the meaning of C is fixed after one case, than people don’t have a say b/c they’ve given it up to the court
4. Democracy and Judicial Review
a. Themes: tension b/w C drawing power from people, but at the same time binding them from moving in a different direction
i. Problem: this tension is heightened by judicial review b/c the courts are unelected officials vested w/ the ultimate power to interpret C, and their status makes them less accountable than elected representatives
b. Problem of Discretion: discretion of judges creates a problem b/c ambiguous nature of C allows judges to impose their own views in interpretation, not necessarily views of drafters
c. Solving Countermajoritarian Problem: proper role of SCOTUS is to promote democracy by enforcing values of majority during founding era which had heightened awareness of democracy
B. Judicial Interpretation
1. Sources of Judicial Decisions
a. 3 Sources of Constitutional Doctrine
i. Text/original understanding
ii. Reinforcement of the democratic process
iii. Natural law/rights
b. McCulloch v MD: states have no power to impede a constitutional law enacted by Congress
i. Federal government’s power not limited by enumerated powers, also have implied/incidental powers
ii. MD cannot tax bank b/c power to tax is power to destroy, and this does not square w/ the supremacy clause
iii. 10th Amendment doesn’t limit powers to those expressly delegated
a. Reasoning: this is a representation of broad Congressional power; the decision stems from the breakdown of the political process
c. Calder v Bull: legislative overruling of state court decision not in conflict w/ ex post facto clause of C
i. Chase: legislature shouldn’t be allowed to subvert judicial decisions b/c it violates principles of social compact (natural law)
ii. Iredell: the law is what the legislature says it is as long as it follows procedure in enactment (positivism)
C. Constraints on Supreme Court Power
1. External Forces
a. Amendment: people may respond to SCOTUS decision by amending C
i. Problem: procedurally difficult
b. Appointment: POTUS may appoint justices who share his views
i. Problem: nominee’s views not always clear b/f appointment, also subject to procedural approval of Senate
c. Impeachment: judges may be impeached for treason, bribery, and high crimes
i. Problem: no justice has ever been impeached
d. Informal Pressure: SCOTUS may be subject to informal pressure of the majority b/c of its limited “political capital”
e. Political Control of Jurisdiction
i. Ex parte McCardle: Congress may control the appellate jurisdiction of the court under C, b/c appellate jurisdiction is conferred by C with “such exceptions and under such regulations as Congress will make”
a. Broad: suggests a broad power of Congress to regulate the jurisdiction of the court (Plenary Power Argument)
b. Narrow: suggests Congress must leave some route to parties to reach SCOTUS
ii. US v Klein: Congress cannot manipulate appellate power to affect the outcome in a particular case b/c it violates “rules and decisions” power of SCOTUS
a. Reasoning: in conflict w/ the plenary power argument; suggests that McCardle allows manipulation of certain classes of appellate jurisdiction
2. Judicial Discretion
a. Certiorari: discretionary jurisdiction exercised by SCOTUS which requires votes of 4 justices; denial of cert may result from a number of reasons is seen as an exercise of the “passive virtue” when denied
i. Padilla v Hanft: petitioner’s suit for being held illegally denied cert by SCOTUS b/c his status had been changed and the issue was thus moot
3. Case or Controversy Requirements and Passive Virtues
a. Advisory Opinions: SCOTUS cannot issue “advisory opinions” concerning legislative of executive acts b/c they do not grow out of a “case or controversy” as required by C
i. Hayburn’s Case: hearings of petitions for pensions mandated by act and reviewable by legislature was not judicial in nature
a. Reasoning: allows court to maintain separation of powers balance, conserve resources, avoid political battles, avoid enforcement problems when no party exists, and preserve political capital; similar to the ruling in Marbury b/c the court is limiting itself; threat to independent judiciary b/c of legislative review process
b. Problem: allows branches to make mistakes, and advisory opinions are not explicitly prohibited by the case/controversy clause
b. Ripeness & Mootness: SCOTUS cannot review cases that are premature, speculative, or too remote to warrant judicial intervention; case is not ripe when brought too soon & is moot when brought too late
i. Laird v Tatum: claim that executive surveillance created a “chilling effect” to parties seeking to bring action dismissed on grounds of lack of ripeness
a. Reasoning: claim was premised on the fear that the executive might take some other action in the future; would result in enforcement of the executive, which is the role of legislature
ii. DeFunis v Odegaard: voluntary cessation of unlawful activity in and of itself does not result in mootness, but the present case is moot b/c the circumstances which presented the case have been resolved
c. Standing
i. In General
a. Allen v Wright: a claim that the executive must abide by the law is not sufficient to confer standing; also no standing b/c D did not allege enforcement of the tax provision in question would redress the harm of desegregation
i. Art 3 Standing Requirements
a. Injury in fact: concrete and individual and actual/imminent
b. Causation: fairly traceable to unlawful conduct
c. Redressability: relief must follow from favorable decision
ii. Prudential Standing
a. No third party standing: P must assert his own rights
b. W/in Zone of Interests: protected by statute
c. Generalized Grievances: not cognizable if shared by all citizens
ii. Particularized Injury Model
a. Lujan v Defenders of Wildlife: no standing to sue under “citizen suit” provision of Endangered Species Act
i. Injury – not imminent b/c D didn’t have plans to revisit wildlife
ii. Causal Connection – theory that destroyed wildlife will hurt livelihood of scientists/photographers is too attenuated
iii. Redressability: ruling would only be enforceable against agency, not the groups doing the harm to the wildlife
iv. Particular Injury: citizen suit provision is unconstitutional b/c it conflicts w/ case/controversy requirement and would violate enforcement power of executive by making the court the enforcer of law; injury must be particularized for standing and Congress can’t change that
iii. Legal Rights Model
a. MA v EPA: MA has standing to sue the EPA for lack of enforcement of certain provisions regulating automobile emissions in the Clean Air Act
i. Injury – rising sea level as a result of global warming is injuring MA b/c it is destroying substantial coastal property owned by the state
ii. Causation – e/t emissions aren’t sole cause of the problem, they are at least part of the problem
iii. Redressability – simply b/c remedy wont reverse global warming doesn’t mean court can’t act to reduce/slow global warming
b. FEC v Akins: Congress can create an injury in fact by granting standing to “any person” to bring suit to compel compliance w/ law
i. Reasoning: the relevant factor is that the injury be concrete, and generalized grievances that result in concrete injury aren’t necessarily beyond the reach of the court
ii. Problem: contradicts Lujan by allowing Congress to create rights
c. Regents v Bakke: loss of opportunity can qualify as injury in fact for standing purposes
d. Elk Grove v Newdow: b/c D didn’t have custody of the child, it was a family issue, and federal courts don’t get involved in family law
i. Reasoning: court distinguishes Art 3 standing (case/controversy) and prudential standing (judicially self-imposed limit), and refuses to find standing here on prudential grounds
d. Political Constraints
i. In General
a. Political Question Factors
i. Textual commitment to coordinate political department
ii. Lack of standards
iii. Requires non-judicial policy decision
iv. Lack of respect to another branch of government by issuing decision
v. Unusual need for adhering to already existing political decision
vi. Potential for embarrassment for having different pronouncements from different branches of government
ii. Lack of Standards
a. Baker v Carr: Guaranty Clause claims are non-justiciable b/c the clause provides no standard for the courts, but the apportionment claim at issue was based on equal protection standards and thus is justiciable
i. Reasoning: Guaranty Clause guarantees the states will provide a republican form of government, but provides no standard
iii. Commitment of Coordinate Political Branch
a. Nixon v US: judicial review of an impeachment would be inconsistent w/ C b/c Senate has “sole” power to try impeachments; thus court cannot review on justiciability grounds