Constitutional Law - I
Final Exam Outline
I. Introduction: The U.S. Constitution and the Supreme Court of the United States
A. The Text and Origins of the Constitution
1. Bindingness
· Text of constitution can stand in way of contemporary majorities in way that is in tension with democratic self governance
· Process of creating constitution giving it binding force
· Forms of constraints on public power
o Judicial review
o Representation
o Citizen involvement in political process, ie regular elections
o Military force of the people, 2nd Amendment designed to let people check the government
2. Origins
· Articles of confederation – creation of wartime government
o Understanding: states would remain sovereign
o Gaps it had:
§ No power to tax – fed government had to ask states for money
§ No power to regulate commerce
§ No executive authority
§ No general national judiciary
§ Fed government had no power to interact with individuals directly, just through states
o Madison’s complaints about articles
§ People weren’t anywhere in it
§ Need something more coherent than a league
§ No ability to enforce anything
· Constitutional convention – unlawfully went beyond limited task of improving the articles of confederation
o Madison’s republican theory relied on civic republicanism/virtue
o Jefferson though constitution should be amended every generation
o Antifederalists were opposed to dramatic expansion of power of fed government
§ Didn’t like representatives – removed the people from the process
§ New emphasis on commerce
§ Wanted a weaker Supreme Court
· (Madison) Federalist No 10
o Can’t control source of factions so control effects by
§ 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
§ Bicamerialism designed to have some representatives in touch with people, some removed – Article I, § 7
· (Madison) Federalist No 51
o Branches should have little to do with selection of those in other branches – separation of powers
o Need to have opposite and rival interests to balance power, legislature by nature the strongest
o The division of state fed power also ensures rights
· Checks and balances
o Maximizes power of the people by fragmenting government’s power
§ Vertical: states vs federal government
§ Horizontal: allocation of power between branches
o But also maintains status quo, insulates existing practices, including distribution of wealth, from democratic process
o Court intended to keep things out of political sphere, boundaries unrevisable by temporary majorities
· When did government under constitution begin?
o Congress first convened in March 1789, April had a quorum, few weeks later Washington is appointed
o 1790 first session of SCOTUS – at this time all three branches operating
· Parts of the constitution – source of authority is the people
o Article I – creates bicameral congress
o Article 2 – creates executive
o Article 3 – creates judiciary
o Article 4 – full faith and credit
o Article 5 – Amendments and process of amending
o Article 6 – supremacy clause
o Article 7 – how to get government up and running
o Bill of rights ratified in 1791
II. The Judicial Power of the United States
B. The Judicial Function and Judicial Review
1. Foundations
· Marbury v. Madison (1803): President Jefferson’s Sec of State Madison refused to deliver a commission granted to Marbury by former Prez Adams.
o Court held that the Sup Ct has the power, implied from Article VI, § 2 of the Constitution, to review acts of Congress, and if they are found repugnant to the Constitution, to declare them void (judicial review!). It is the duty of the court to say what the law is – the courts are authorized to enforce their interpretations of the constitution against that of other branches
2. Judicial review of state laws and decisions,
· Not in constitution, but there are hints for judicial review: Madison proposed giving congress a veto on state laws, and agreement at constitutional convention that fed government had to keep states in line
· Fletcher v. Peck (1810): Ct is reviewing GA court rescinding earlier grant of land—has been sold to 3rd parties
o Court holds that the 3rd party land claimants have the good claim (even though the earlier act was passed by a corrupt legislature)
o Article I, § 10—here are things that states cannot do—Marshall says this is one of those
§ Marshall rules state is not really a sovereign, union is supreme so Sup Ct can strike down state laws when conflict with constitution
· Martin v. Hunter’s Lessee (1816): Dispute over land, Hunter granted land by Virginia in 1789, Martin was a British subject claim that land was his, couldn’t be confiscated under treaty between US and UK
o Court held that the Sup Ct does have appellate jurisdiction over issues of fed law in state courts
§ (in this case of a federal question because involved a treaty – supreme law of the land)
3. Judicial supremacy?
· 3 approaches to who is the ultimate arbiter
o 1) No authoritative interpreter
§ Called departmentalism – each department has to interpret constitution for itself
§ Departmental idea comes from the fact that constitution itself puts the duty on each branch to comply with the constitution
§ Supported by Jackson (veto message) and Jefferson (republicanism)
o 2) Each branch authoritative in certain areas
§ Arguably best describes the current system of constitutional interpretation: ie, court has declared political questions to be decided by other branches
o 3) Judiciary is authoritative interpreter
§ Marbury v. Madison, US v. Nixon (because rejected claim that it was for the executive to determine scope of executive privilege)
· But you could read Marbury as only saying the court is final arbiter of Article III – so supporting approach (2)
· Or you could argue that Marbury only holds judiciary may interpret constitution in deciding cases, not that other branches have to comply, so supporting approach (1).
· Cooper v. Aaron (1958): Era of civil rights (4 yrs after Brown v. Board). In Arkansas, the governor says he refuses to apply with Brown and an actual order requiring desegregation of Little Rock. State govt. says they’re not bound by Brown
o Court agrees, but holds that “law and order are not here to be preserved by depriving Negro children of their constitutional rights”
o Cooper thought to go way beyond Marbury—says they’re the only one who has ultimate authority to interpret the const—other courts must look at their interpretation
4. Democracy and judicial review
· Many con law arguments are about the adequacy of measures to control judicial discretion, such as:
o Original meaning, understanding or intent of framers and ratifiers
o Text of the constitution
o Tradition, precedent
o Prevailing morality or social consensus – living constitution
o Conceptions of justice principle
C. Judicial Interpretation
1. Sources of judicial decisions I
· McCulloch v. Maryland (1819): McCulloch, the cashier of the Baltimore branch of the U.S. bank, issued bank notes in violation of a Maryland statute providing that no bank, without authority from the state, could issue bank notes except on stamped paper issued by the state.
o Court held that:
§ (1) Certain fed powers giving Congress the discretion and power to choose and enact the means to perform the duties imposed upon it are to be implied from the Necessary and Proper Clause (Article I, § 8).
§ (2) The Fed Const. and the laws made pursuant to it are supreme and control the Constitutions and the laws of the states (so MD can’t tax the bank).
· “The power to tax is the power to destroy”—the state could tax the bank out of existence—inconsistent with supremacy of fed govt over the states
o Broad holding: states have no power to retard, burden, impeded or in any manner control the operations of the constitutional law enacted by congress – doctrine of national authority
§ Constitution emanates from the hands of the people and has to be read broadly to meet future crises
§ Also seems to embrace departmentalism in that it says that congress can interpret the constitution to figure out what powers it has under the rubric of necessary and proper means to reach its constitutionally enumerated ends
2. Sources of judicial decisions II
· Calder v. Bull (1798): Connecticut legislature set aside a judicial decree in a will contest and ordered a second trial
o Chase: some acts are beyond legislative power because they are acts no reasonable people would give to legislature, so even if not expressly in the constitution, governed by natural law
§ Believes in natural law: that there is an unwritten constitution with principles of natural law, which is enforceable against the states
o Iredell: even if legislative acts are against natural justice, it is not in any court’s power to declare it so
§ The fact of the written constitution is proof against the existence of natural law – narrower view of judicial review
C. Potential Constraints on the Supreme Court’s Power
1. External forces
a. Amendment, appointment, impeachment,
informal pressure
· Constitutional amendment – most direct way for people to respond to Sup Ct decision they don’t like, but difficult to achieve – we may think:
· Appointment power
· Impeachment
· Informal and self imposed limits: Ct sees itself as having limited political capital and doesn’t want to spend it needlessly so it sensitive to views of elected officials and private citizens → Alexander Bickel
b. Congressional control of federal jurisdiction
· Ex parte McCardle (1869): Newspaper editor in Mississippi jailed for publishing articles critical to Reconstruction. Seeks habeas corpus relief under the Federal Act of 1867. While the case is pending, Congress repeals statute—what do we do now?
o Question: May Congress withdraw jurisdiction from Sup. Ct. after they’ve granted it?
§ Ct. says Congress can withdraw jurisdiction because of the Exceptions Clause (Article III, Section 2): Congress can modify and make exceptions to appellate jurisdiction
· Congress has plenary power (full, unlimited power) over appellate jurisdiction of Sup. Ct.
· U.S. v. Klein (1872): guy proved was not part of rebellion during civil war by showing presidential pardon, then while on appeal, congress passed statute saying presidential pardon was to be evidence of rebellion and court should dismiss suits for lack of jurisdiction.
o Court invalidated this statute on grounds that congress cannot prescribe rules of decision of judiciary in pending cases, can only take away right to appeal in a particular class of cases, but not in a particular case.
o Court seems to retrench and say congress’ power over the judiciary is not plenary
· Squaring Klein with McCardle
o In Klein congress was trying to bind court to decide something in a particular way
o Klein would have been stripped of all possible remedy, somehow unconstitutional
2. Judicial discretion
· Padilla v. Hanft (2006): denial of cert, American citizen arrested in US and held by pres as enemy combatant
o After he sought cert, government obtained indictment charging him with crimes and transferred custody to AG, mooting his claim because he was transferred and got the relief he sought, being charged with a crime
o Court denies cert—don’t have 4 justices (“Rule of 4”)
§ Court says even if they ruled in his favor, he’d still be in prison, so they don’t have to decide this
§ Court is limiting its own power to hear the case = prudence
§ Problem: not only denying cert, but explaining why—like an advisory opinion (bad)
3. “Case or controversy” requirements and the “passive virtues”
a. Justiciability: Is the case something the court can decide?
· Different interrogatories the court is using:
o WHEN the courts can decide a given case (ripeness, mootness)
o WHO should the plaintiff be? (standing)
· Standing can be raised at any time (like subject matter jurisdiction)
b. Advisory opinions – must have case or controversy
· Article III, § 2 provides that “judicial power shall extend” to cases or controversies, so can’t invalidate legislative action for simply being unconstitutional
· Purpose of case or controversy requirement:
o Supports judicial restraint
o Eases friction with other branches
o Ensures constitutional disputes resolved in context of concrete disputes, not hypotheticals
o Promotes individual autonomy by ensuring those involved in litigation are actually injured, not just ideologically opposed
§ But, sometimes lack of litigation doesn’t show happiness with status quo just too poor or ignorant to sue
· Hayburn’s Case (1792): Act called for judges to hear petitioning pensioners, decide if valid and give amount of money, but could be overturned by sec of war or legislature
o 3 dist cts holding: (but case is only before PA, but NC and NY chime in) and all agree that this activity is not judicial in nature, and that courts can not be reviewable by non-judges so cannot do this
c. Ripeness and mootness
· Ripeness – bars court from deciding cases that are premature, too speculative or remote to warrant judicial intervention
o Laird v. Tatum: government surveillance, Ps charged would chill political activity, court said had not yet chilled so not ripe
· Mootness – courts can’t hear a case where subsequent to institution of lawsuit events have deprived P of stake – this is a discretionary doctrine, if law changes during case then court can decide to dismiss or not
o DeFunis v. Odegaard: challenge to preferential admissions program, by time reached court, guy was in third year of law school so court threw out case
o Roe v. Wade: went the other way—by time reached court she was no longer pregnant, court relied on exception to mootness for cases capable of repetition (pregnancy will never last longer than trial stage)
d. Standing
· Three requirements for standing, derived from Article III