CONSTITUTIONAL LAW I. Judicial Review A. What is the Constitution? 1. Possible conceptions a. Legal text i. Sets out a plan of government 1. Structure 2. Who serves 3. Powers 4. Limitations on power 5. Amendments more explicitly define some individual rights. Contain further elaboration on powers of gov t. ii. Specific in parts (e.g., age to serve as Senator), very-open ended in others (e.g. power to regulate commerce) iii. Issue: how is it that this written legal text has survived the generations and is still perceived as meaningful? b. Social contract i. Contract requires meeting of the minds perhaps means agreement among the people, or agreement among the ratifiers ii. Mutual responsibilities and obligations to one another, claims we can make against one another, etc. iii. Problems with this conception 1. Whose intent controls the meaning of the contract when it s unclear or does not specify an exact rule? 2. Dead hand problems: a. Legitimacy why should the dead hand of the past control the present day? b. Practicality why should challenges of today (e.g. terrorism) be guided by people long dead? 3. Leaves a lot unsaid/open contrary to an ordinary contract, this one contains very few details, and doesn t specify rules to settle future disputes 4. Parts of the Constitution seem like compromise c. Statement of public values i. Public doc addressed to all American people and citizens, and the world population. Not a document addressed to lawyers, and therefore not a legal text. ii. Represents some underlying values that are deeper, broader, and more innate than the text itself can adequately convey iii. Problems with this conception: 1. Seems to create further contestation about the importance of these values in the future
2. Counter: perhaps it is the indeterminacy of meaning that is most important, and that makes the text authoritative and legitimate over time 2. Contemporary controversies a. Health care reform i. Article 1, Section 7, cl. 3 (Commerce Clause): Congress has the power to regulate commerce among the several states ii. Individual mandate this reform is not regulating the individual transaction, but the absence of an individual transaction. This is a regulation of commercial inactivity. iii. Should we be bound by a historical conception of the phrase commerce, which was far more limited when the Constitution was written than it is now? b. Proposition 8 i. 14 th Amendment: Equal Protection (EP) Clause guarantees equal protection of the laws ii. Meaning of equality vs. meaning of equal in the EP clause iii. How do we determine who is covered by the EP clause? 1. Genesis of the EP clause was the emancipation of the slaves and guarantee of equality and freedom to blacks. 2. Good evidence that the equal status of women was not part of the 14 th Amendment 3. Arg is that same sex marriage and gay/lesbian rights are not covered by the EP clause c. Whether habeas corpus extends to enemy combatant detainees in Afghanistan Is it permissible for the US to hold people under its control in another country without any recourse? i. Article 1, Section 9, Cl. 2 Suspension Clause: writ of habeas corpus shall not be suspended except in time of rebellion or invasion where the public safety may require it ii. How far does habeas corpus extend? If never meant to extend to Afghanistan, then unnecessary to determine if it should be suspended. B. The Founding (Emma) 1. Origins of the Constitution a. Declaration of Independence i. To whom is it addressed? The people, the Crown, themselves? b. Articles of Confederation i. Not called a constitution, but it effectively was. ii. Addressed to themselves b/c meant to order the affairs of the States, once the colonies iii. Operated for about 6 years iv. Problems (from Madison s Federalist Papers Nos. 10 and 51) 1. Only a legislature, no executive or judiciary 2. Weak legislature no pwr to regulate commerce or tax 2
3. States had little respect for the central pwr, and erected trade deals among themselves and violated treaties entered into on behalf of the nation, etc 4. Core principle of the Articles = States had sovereignty 5. These papers propounded a theory of factions which could be controlled through a representative republic and proper checks and balances on each branch, such that factions were controlled by everyone acting in their own interest. c. Constitutional Convention i. Purpose: framers were to devise such further provisions as shall appear to them necessary to render the constitution of the federal gov t adequate to the exigencies of the Union (12) 1. Amendments supposed to be sent back to state legislators for their approval 2. Instead of amending the Articles, they threw them out and wrote something totally different ii. Nobody authorized the Constitution to be written iii. The process for ratifying it was not what the state legislatures had intended: the framers decided it should be ratified by the people, not by their representatives, at the Convention. 1. Gave the federal Constitution a stronger authority over and against the states. 2. Formalism vs. functionalism a. Formalism: focuses on the form of law ability to connect the dots up a chain of legitimacy i. Basic idea: judges should be confined to enforcing norms stated or clearly implicit in written Constitution ii. A right only exists if expressly stated in the text or clearly intended by framers. If silent, leave to legislature. iii. Constitution should evolve solely by amendment iv. To determine meaning of a phrase in the Constitution, look at what it meant at the time the text was written v. 2 arguments for this approach 1. The very nature of interpreting a document requires that its meaning be limited to its specific text and its framers intentions 2. This approach is desirable to constrain the power of unelected judges in a democratic society conceives of judicial review as a deviant institution in American democracy b/c it permits unelected judges to overturn decisions of popularly elected and accountable officials a. Counterargument: democracy, as defined by originalists, requires decisions by current majorities, but majority rule does not exist if 3
society is governed by decisions of past majorities that cannot be overruled by a majority of the current population b. Functionalism: looks at the function of how law is interpreted and evolves. Lets the results speak for themselves. i. Permissible for Ct to interpret the Constitution to protect rights that are not expressly stated or clearly intended ii. Meaning can evolve by interpretation and by amendment iii. Allows constitutional interpretation to include norms and values not expressly intended by the framers iv. Basic arguments of non-originalism 1. Desirable to have the Constitution evolve by interpretation and not only by amendment b/c amending is a cumbersome process and review is necessary to meet the needs of a changing society 2. There is not an unambiguous, knowable framers intent that can be found to resolve constitutional questions, but rather determining the framers intent is a process that is affected by contemporary values. Further, even if there were a determinate group whose intent governed, text is too incomplete to draw authoritative conclusions 3. Framers intended nonorginalism approach 3. Terminology a. Republicanism premised on civic virtue. Politics and public decision-making should be driven by the public good, and the public good would be effectuated by citizens subordinating their own private interests to a conception of the public good that would be determined through debate and public deliberation. i. Thomas Jefferson ii. Model of gov t = town hall meting iii. Must have sufficient smallness and homogeneity in the members of the decision-making group iv. Direct democracy citizenry itself would be making decisions v. Representation = threat to direct democracy b/c put a layer of people between the citizenry and the decision-making process vi. Generally followed by citizens at lower end of the social ladder b. Federalism Generally refers to the vertical separation of powers between the federal and state governments i. Exemplified by the Federalist Papers, written by John Jay, Alexander Hamilton, James Madison 1. Responded to anti-federalists attack on Constitution ii. Purpose: to demonstrate how bigger and more powerful central gov t than in Articles could mesh with Jefferson s republicanism without using features that Jefferson proposed 4
iii. Conception of human nature in reality, people are not as virtuous as we would like them to be and often act out of selfish desires 1. Instead of trying to change human nature, we should challenge it and influence it so that it is most likely to achieve the public good iv. Central problem we face with self-interest are factions 1. Faction = a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community. 2. Worried about a faction-less majority, exemplified most clearly by the property-less class. 3. Solution: increase diversity and size of the gov t so no faction can take control. a. Mechanisms in the Constitution: deliberative process legislature, representation v. Federalism and the Constitution 1. Bicameralism very Federalist. Madison acknowledges that the legislature is the predominant power can t make men into angels 2. Little to no mention of judges in FP Nos. 10 and 51 odd b/c of the problem of factions in factious majorities 3. Separation of powers a. Horizontal separation between House of Representatives and Senate; Executive check; judiciary b. Vertical separation dual sovereignty where power is vertically allocated between national and state governments c. Anti-federalism opposed to the Constitution i. Hostile to dramatic expansion of powers of national gov t ii. Favored decentralized society could achieve homogeneity and dedication to public good that would prevent gov t from degenerating into tyranny from center, or clash of private interests iii. Wanted to avoid extreme disparities in wealth, education and power iv. Anti commercial development saw commerce as a threat to the principles underlying the Revolution since it gave rise to ambition and thus to the dissolution of communal bonds v. Essentially said that the Constitution was inconsistent with republican principles of gov t 5
4. Application of federalism, republicanism, and anti-federalism to contemporary issues a. Health care in passing health care reform, Congress did exactly what Madison envisioned in FPs 10 and 51 (federalism at its essence) b. Prop 8 passed by an up-or-down vote of the citizenry present on a particular day i. No official process ii. Madison feared (FP 10) that pure democracy in which people assemble and administer gov t can admit no cure for the mischiefs of faction, i.e. lends itself to factions dominating a particular debate C. Judicial review, judicial supremacy, judicial sovereignty 1. Article III of the Constitution only the Supreme Court is required by the Constitution. The inferior courts (circuit and district) are statutorily created and could be taken away. 2. Marbury v. Madison (1803) a. Court holds that Marbury has a right to his appointment but Supreme Court is without jurisdiction on this issue; Court could not constitutionally hear the case as a matter of original jurisdiction. i. Congress, under the Judiciary Act of 1789, cannot allow original jurisdiction beyond the situations enumerated in the Constitution. ii. Was this holding even proper? When deciding a case, Court should ask: 1. Standing whether the plaintiff is the proper party for bringing the matter to court for adjudication. 2. In Marbury, Court held that it lacked jurisdiction, yet it continued with its holding. This is arguably improper. 3. Rightness whether the federal court may grant preenforcement review of a statute or regulation. 4. Mootness plaintiff must present live controversy, ongoing injury. 5. Political question doctrine Court won t deal with political issues. b. Issues: i. Has the applicant the right to the commission he demands? Yes. ii. When a commission has been signed by the president, the appointment has been made, conferring on Marbury the legal right to the office. Delivery is just a formality. iii. If he has that right, and that right has been violated, do the laws of his country afford him a remedy? 1. Where there is a right, there is a remedy. Here, however, Marbury has a right and gets no remedy. 6
2. Distinction between political acts and acts governed by law. a. Question of whether a right has vested or not, is in nature, governed by law, and must be tried by judicial authority. b. Judiciary could provide remedies against the executive when there is a specific duty to a particular person, not when it is a political matter left to executive discretion. c. There are only political checks on political acts. iv. Is he entitled to the remedy for which he applies? This depends on the power of the court. 1. Some executive actions, such as whether to veto a bill or who to appoint for an office, are entirely within the president s discretion and cannot be judicially reviewed. 2. 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. 3. Sec 13 of Judiciary Act of 1789 authorizes the Supreme Court to issue writs of Mandamus to any person holding office under the authority of the US. So, this mandamus is authorized. But the Judiciary Act is unconstitutional, thus establishing judicial review. a. Supreme Court (maybe incorrectly) reads Judiciary Act to grant original jurisdiction over issuing mandamus. This is unconstitutional because Art III enumerated the Court s original jurisdiction and Congress cannot enlarge it. b. Thus, Art III is the ceiling of federal jurisdiction and federal courts are courts of limited jurisdiction. v. Judicial duty - If a law be in opposition to the constitution, if both the law and constitution apply to a particular case, so that the court must either decide that the case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. 3. Judicial review the particular phraseology of the constitution of the US confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is voidable by the Supreme Court. a. In order to interpret statutes, Court must decide if they are constitutional. b. Various bases for the power of judicial review: 7
i. Written constitution judicial review is a necessary inference from the fact of a written Constitution 1. There is a certain method to edit the Constitution and so we must tread carefully when making Constitutionchanging decisions. This shows the supremacy of the Constitution to an act of Congress. ii. Notions of judicial role Chief Justice Marshall claims that the ordinary role of the courts is to interpret the law. ( It is emphatically the province and the duty of the judicial department to say what the law is. ) iii. Supremacy Clause provides that the Constitution and the Laws of the US shall be the supreme Law of the Land. 1. There must be a check on the legislature (the Court); what is the check on the Court? Art V of the Constitution (amending the Constitution), but this is rarely used. iv. Grant of jurisdiction Constitution extends the judicial power of the US to all cases arising under the Constitution v. Judges oath Marshall relies on the fact that judges take an oath to uphold the Constitution. But consider that many other government offices require people to take an oath to the Constitution and they do not have the power to deem laws unconstitutional. vi. Federalist 78 mentions judicial review c. Originalism view that the meaning of the Constitution is determined by eliciting the original meaning of the relevant provision, as it was ratified. i. Makes interpretation more disciplined ii. Problems with originalism: 1. Whose understanding? Drafters of the Constitution or the people in the various states who ratified it? a. Possible response: original public meaning, rather than subjective intent, is what is controlling. It is hoped that judges can ask a relatively objective question about the meaning of words at a certain time. 2. What level of generality? Many constitutional provisions seem vague and ambiguous a. Those provisions might be read to enact either a particular conception fixed for all time or a general concept to be filled in over time. b. Ex: Equal protection clause applies only to discrimination of blacks the principal historical concern or is it a general prohibition 8
of unjustifiable distinction between classes of people? 3. Traditional precedent scope of provision is sometimes determined in part by reference to social traditions and Court s precedents. If tradition is not good, less reason to follow them. d. One view is that judges are better at interpretation because of their insulation from political pressures; that insulation allows them to follow the ways of the scholar e. What is the systemic effect of judicial review? i. Judicial parity departmentalism. Supreme Court, no less than the other branches of the government, has the prerogative to interpret the Constitution. : Marbury is something like that. ii. Judicial supremacy Supreme Court has final interpretive authority over Constitution, despite sharing interpretive authority with other branches. iii. Judicial sovereignty only the Supreme Court has interpretive authority over the Constitution. The other branches do not. iv. Our legal culture today has it between the supremacy and sovereignty view. The US started on the other side of the spectrum, where the Supreme Court was trying to make a bid for equal, not superior power, with the rest of the government. 4. Martin v. Hunter s Lessee (1816) a. SCOTUS has authority to review state court judgments with a federal question; appellate power extends to cases pending in the state courts; reasons: b. Objectivity States have attachments and prejudices to their own positions; these must be reviewed in cases of federal law/issues i. Federal judges are insulated from majoritarian pressures, whereas states judges are generally elected ii. Federal judges have greater expertise on federal questions. c. Necessity of uniformity of interpretation of federal law d. Federal courts have jurisdiction when there is discordance over the interpretation of the Constitution in different states e. SCOTUS review is essential to ensure uniformity of interpretation of federal law f. Importance: Expands judicial review from Congressional laws to state decisions. 5. McCulloch v Maryland (1819) a. Importance: i. Enumerated and implied powers ii. Federal supremacy iii. Constitutional ends justify the means 9