Constitutional Law - Constitutional Law

Constitutional Law

Major Outline

Spring 2015 – UVA Law

• Judicial Review/Supremacy

  • Marbury v. Madison (p.1, 1803) - Initiated Judicial Review

    • Facts: Judicial commission letter from Adams was not delivered until after Jefferson took office. Jefferson tried to withdraw the commission. SCOTUS granted mandamus compelling delivery and Madison (Jefferson’s SOS) ignored it.

    • Rule 1: Judicial supremacy. SCOTUS’s rulings are binding on the other branches of government.

    • Rule 2: Judiciary Act impermissibly expanded SCOTUS’s jurisdiction beyond the constitution (constitution is supreme, thus JA portion was struck down)

  • Legislative Supremacy: alternative viewpoint that legislature decides issues of constitutional law

    • If they pass something unconstitutional then the people will correct the process in their voting behaviors

    • Based in part on the idea that Congress also takes an oath to uphold the Constitution

    • See countermajoritarian difficulty

  • Martin v. Hunter’s Lessee (p. 24, 1816)

    • Issue: To what extent may SCOTUS review decisions of the states--both courts and legislatures?

      • Dual Federalism vs. Federalism

    • Argument for no judicial review of state laws:

      • States Rights: this would run against state sovereignty

      • Constitution only applies to federal government

        • Incorrect, places several restrictions on state

      • Departmentalism: states retain power to interpret Constitution for themselves

      • Slippery slope argument - too much power

        • See McCullugh v. MD: power to tax is power to destroy

        • But see Sorites Paradox: Heap of rice minus one grain is still a heap; even when you can’t draw a line it doesn’t mean things are necessarily going to spiral out of control.

    • Argument for judicial review of state laws:

      • Different interpretations of the constitution by separate states would interfere with the idea of a single federal constitution

        • See economic results of different rules

      • Pointed to the supremacy clause regarding supremacy of the constitution itself - ties into one interpretation

    • Rule: Constitution is both supreme and singular. SCOTUS has the ultimate power to make final interpretations of the document.

  • Article III, Section 2, Clause 3

    • Congress has power to regulate the appellate jurisdiction of SCOTUS and other federal courts.

      • Power is often threatened but has never been used

        • E.g. abortion--Congress post-Roe threatened to withdraw SCOTUS’ jurisdiction over abortion issues

      • Cannot alter jurisdiction for an individual case (United States v. Klein, p. 51, 1872: Congress may not use this power to compel the court to reach decisions that would violate another part of the Constitution)

    • Congress sets the number of Justices, sets rules of procedure, etc.

  • Judicial Interpretive Supremacy (see Cooper v. Aaron)

    • SCOTUS is supreme interpreter and its interpretations are binding on all the other branches and on the states.

    • Alternative theory: Departmentalism. Each of the branches of government is entitled to interpret for themselves because there are 3 co-equal branches of gov’t that have each sworn to uphold the Constitution.

      • Nothing in document gives SCOTUS explicit and exclusive power

      • Departmentalists refuse to comply with SCOTUS rulings unless they are directly directed to them--view the rulings as binding only on the parties.

        • Continue following their own interpretation unless SCOTUS directs a ruling at them.

      • Hollingsworth v. Perry (Supp 96, 2013) (see also same-sex marriage)

        • Rule: State officials are not bound to defend state laws they believe to be unconstitutional

        • Dissent: Politicians should make decisions on policy grounds and let courts make constitutional decisions

    • Non-Acquiescence: In the absence of a SCOTUS ruling other branches may interpret, but once SCOTUS has ruled its interpretation is final.

      • Example: IRS ignores lower court decisions until SCOTUS rules

    • Popular Constitutionalism: complicated, basically congress/POTUS has the ability to scoot around constitutional decisions by the court in cases of popular opinion, such as Lincoln emancipating slaves

  • Limits of Judicial Review:

    • Can review State Supreme Courts only when there is a federal question

• Powers of the Federal Government

  • General:

    • Issue: when can they usurp the states ubiquitous police power?

    • Answer: when they are authorized by the enumerated powers of constitution

      • Federal police power only extended to areas within enumerated powers

    • Constraint on the states: rights reserved to the people by the constitution

    • Federal courts generally lack jurisdiction over state supreme court rulings on state law.

      • SCOTUS may only hear appeals from state supreme courts when there is a federal question

    • Issue: are there implied powers for execution of enumerated powers?

  • Necessary and Proper Clause

    • “We must never forget that it is a Constitution on which we are expounding”

      • Constitution is not a legal code or exhaustive list of powers

      • Enumerated powers gives the ends, and necessary and proper lets the government determine the means

    • Implied Powers (Penumbras)

      • Certain powers necessarily entail other powers

        • E.g. power to coin money means power to build a mint, power to raise a navy means power to build a shipyard

    • Legislative Deference

      • SCOTUS defers to Congress on determining the extent of each enumerated power

    • Definition of Necessary:

      • Sort of necessary, necessary, very necessary, absolutely necessary, indispensably necessary? Where is the line?

      • Constitution uses “absolutely necessary” elsewhere so there is reason to believe that this is a more expansive definition

      • Marshall in McCulloch takes an expansive view interpreting it as closer to facilitative or useful, not absolutely necessary

      • Within Section 8 Defining power rather than section 9 limiting powers, thus it’s reasonable to consider it expansively, rather than in a limiting sense

    • McCulloch v. Marlyland (p. 68, 1819)

      • Issue: Does Congress have power to establish a bank?

      • Rule: Yes, a necessary and proper extension of Congress’ power to coin money, regulate commerce, borrow money, and raise an army.

        • SCOTUS will generally defer to Congress’ judgment on what is necessary and proper

    • Recent Cases:

      • Summary:

        • Must construct a chain showing necessary powers reaching back to an enumerated power

        • Necessary and proper is not a power on its own

      • US vs. Comstock: (p. 73, 2010) - Necessary/Proper + Relation to Powers

        • Facts: guy was in prison for a valid federal crime and detained post release for mental health reasons

        • Issue: is this a necessary and proper exercise of federal power?

        • Rule: Yes. If Congress has power to create prisons, it has the power to do what is necessary and proper to make them operational including dealing with people’s mental issues.

      • U.S. v. Kebodeaux (supp. 3, 2013) - Necessary/Proper doesn’t stand alone

        • Same holding as Comstock; court rejects necessary and proper as independent source of power but accepts long chain of links.

  • Impeachment Powers of Congress

    • Walter Nixon v. United States (p. 29, 1993) - Textually Demonstrative Commitment to Coordinate Branch

      • Facts: Nixon took a bribe, house impeached, senate began proceedings. Constitution grants the Senate the power to try all impeachments. The Senate conducted part of the trial in a committee.

      • Issue: How do you conduct the trial? Can SCOTUS review the senate’s decision on how to try?

      • Ruling: non-justiciable question - try means what the senate says it means

      • Reasoning: textually demonstrative commitment to the senate for deciding this procedure

    • Issues:

      • What does high crimes and misdemeanors mean?

      • Ford: it meant whatever the house said it meant

      • Schauer: nope, not limited to the criminal law, i.e. can be discharged for failure to fulfill duties of the office

      • Other school of thought: may not include things that are part of the criminal law

        • Ejusdem Generis: Of the same kind. Interpret high crimes and misdemeanors as similar to treason and bribery, the words listed next to them.

  • Commerce Clause

    • Current synthesis: May regulate intrastate activities for moral reason if they have an effect on interstate commerce.

      • See Champion and Darby

      • Post-Morrison: Higher burden on Congress to demonstrate connection to interstate commerce if the motives are social and moral rather than business or economic.

        • Economic motives create high deference to the legislature. Moral motives are more subject to the other factors of the Morris

      • Jurisdictional hooks limiting to instances of interstate commerce can save an otherwise unacceptable statute (e.g. mail for RICO)

      • Motive: Post Wallace v. Jaffrey (school prayer), SCOTUS will throw out a facially valid statute if it is motivated by unconstitutional intentions.

    • Prior rule: (pre Darby) you needed instrumentalities of interstate commerce or economic-based regulation of goods in the stream of commerce

    • Gibbons v. Ogden (p. 78, 1824) - Commerce = (navigation, …)

      • Facts: P had right to operate in waters from federal government, D got the right to operate from someone who got it from the state.

      • Issue: Does the word “commerce” grant this power to the federal government and if so what does that say about state’s right to do the same?

      • Rule 1: Commerce clause gives Congress the power to regulate the movement of goods and navigation.

      • Rule 2: the fact that congress had acted on this waterway preempts similar action by the states...