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CONSTITUTIONAL LAW I - Professor Arrow OUTLINE - FALL 1993 A. The following as follows: 1. Article 2. Article 3. Article 1. 2. C. D. Articles of the U.S. Constitution define and grant powers I: the legislative branch (Congress) II: the executive branch (the President) III: the judiciary (the Courts)

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Article I, sec. 9: rights a person has against the federal government. Article I, sec. 10: rights a person has against state government.

Only individuals have rights; governments have powers. Name of the Game in Constitutional Law: 1. Figure out what the Constitutional issue is. 2. Figure out what standard of review applies. 3. Apply the standard of review to the facts and argue it. 4. Move on to the next issue. Standards of Review: There are two types 1. Issue-specific standards of review: will only apply to one issue (specific to one issue only). 2. Generic standards of review: applicable to many issues depending on when the court says they are applicable. a. Rational Basis Test (aka "Standard One", or "Minimal Scrutiny" or "Lower-Tier Scrutiny") [most lenient - easiest for government to pass]: in order to pass constitutional muster, the statute must be rationally related to a legitimate governmental goal (RB = R + L) b. Intermediate Standard (aka "Standard 1-1/2"): in order to pass constitutional muster, the statute must be substantially related to an important or significant governmental goal (IS = S + I/S) c. Strict Scrutiny (aka "Standard Two" or "Higher-Tier Scrutiny" or "The Compelling State Interest Test") [most difficult for government to meet]: in order to pass constitutional muster, the statute must be substantially related to a compelling governmental goal (or state interest) and there must be no less restrictive (or burdensome) alternative (SS = S + C & no LRA) GOVERNMENTAL POWERS FEDERAL JUDICIARY POWER (ARTICLE III):

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JUDICIAL REVIEW (the power of the Supreme Court to declare a law unconstitutional): A. Marbury v. Madison: There are 2 aspects to Marbury: 1. procedural: judicial review exists. 2. substantive: "that Congress, acting under its Article I powers, cannot expand the original jurisdiction of the U.S. Supreme Court beyond limits established by Article III of the Constitution." "Questions in their nature political, or which are, by the Constitution and laws, submitted to the executive, can never be made in this Court." Judicial review and democracy: Judicial review is countermajoritarian. The legislature acts for the people presumably. Assuming that to be the case, to hold an act of legislature unconstitutional has to be countermajoritarian (must be to fulfill its function).

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Footnote 4 of the Carolene Products case (p. 18): deals with the concept of democracy and distrust: If judicial review is too frequently and oppressively countermajoritarian, we have degenerated into a society of platonic guardians (U.S. Supreme Court under Marbury). Sometimes majoritarianism is good too - sometimes we want the democratic processes to prevail. The system cannot be too overbearing. We need a balance = democracy and distrust. Sometimes we trust the outcome of the democratic process; sometimes we do not. We must figure out when. The Court has done that through the adoption of a more and less rigorous (respectively) standards of review. The stuff we trust - more lenient standard of review. With a more rigorous standard of review may come a presumption of unconstitutionality that the state must overcome. Martin v. Hunter's Lessee: held that the state supreme court is the final interpreter of state law. 1. The U.S. Supreme Court may decide that the state law is in violation of the U.S. Constitution, but it is not the final interpreter of state law. 2. Judicial review extends not only to acts of Congress, but also to the highest courts of the states. (Constitutionality and supremecy can be reviewed). Deals with enforcing supremecy clause re: federal questions only. Cohens v. Virginia: USSC can review state criminal cases.

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Article III of the Constitution: (p. [18]) 1. sec. 1: was important political decision. Supreme Court itself is created by the Constitution. a. How many justices are on the Supreme Court is under the control of Congress b. All lower federal courts exist at the sufferance of Congress. c. To get rid of a justice, you must impeach him/her. 2. sec. 2: Judicial power extends to all cases, in law and equity, arising under . . . a. gives rise to "cases & controversy" requirement. b. Court has original jurisidiction over . . . and appellate jurisdiction over . . . . Original jurisidiction is defined in the Constitution; appellate is not. See Exceptions and Regulations Clause. 1. We could say that appellate jurisdiction is created by the Constitution, which also creates congressional power to diminish it, or 2. we would speak of Congress as creating the appellate jurisdiction (by the Judiciary Act of 1789). But what Congress is really doing is exercising its "exceptions and regulations" power. 3. Congress does have the power to deprive the U.S. Supreme Court of appellate jurisdiction over certain subjects. Limitations on Judicial Review. The two biggest structural limitations on federal judicial powers are: 1. the text of Article III: only certain things are subject to federal jurisdiction at all: a. specific limitations in Article III, sec. 2. b. more broadly, the "case & controversy" concept itself (because proceeding everything under 1(a) is "case or controversy") 2. constitutional structure: separation of powers - justiciability.

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A justiciable controversy is something in which judiciary has some input. a. political question doctrine: Holds that certain types of decisions ought to be able to be taken as a final matter by the political branches (President and Congress) and not by the judicial branch. Judiciary has no say in political questions - they are to be resolved by political branches and are nonjusticiable. Separation of powers produces concept of nonjusticiability. II. CONCEPT OF "CASES OR CONTROVERSIES": These doctrines are often used in an outcome-oriented fashion, for the court to duck things it doesn't like. ADVISORY OPINIONS: No real dispute - but an interesting question; generalized analysis. 1. Muskrat v. U.S. (p. 1575): Court can only decide the constitutionality of an act of the legislature when it is the subject of a case of controversy. "Judicial power is limited to `cases' or `controversies'." MOOTNESS: a moot case is one that has been resolved antecedent (prior) to judicial decision. 1. Exception to mootness: cases capable of repetition yet evading review (i.e., Roe v. Wade, takes 4 years to get to court, but no one will ever be pregnant for 4 years) MEMORIZE THIS. 2. De Funis v. Odegaard: Held to be moot. (case where law student was not let in because he was white). 3. Bahke (1978): same case as De Funis, but held that there was no mootness. COLLUSIVENESS: a friendly case between 2 parties; kind of a test case where there is no real controversy between the parties. Rule: The Court will not hear collusive cases. Applied principally in constitutional cases on the notion that "it was never the thought that by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of a legislative act." STANDING: who may assert certain contentions. This is antecedent [prior] to any question on the merits. The sine qua non (indispensible condition) of all standing is that there be some injury in fact (ultimate constitutional requirement per Article III - case or controversy) 1. There are subordinate types of standing: a. taxpayer standing b. citizen standing c. associational standing d. general statutory standing e. specific standing f. legislative standing g. 3rd party standing (which can be any of the above-described types) 2. Standing derives from either a. Article III case or controversy requirements or b. prudential rules of self restraint We care from which source standing derives because there is no discretion in applying the Constitution - courts are bound to it and it cannot be changed by statute. If, on the other hand, it is a prudential rule of self-restraint (imposed by the Courts), Congress can pass a statute to widen standing. 3. example of prudential rule of self-restraint: Sieler Doctrine

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(Sieler v. Louisville National RR) a. First principle: we don't reach out to decide Constitutional questions if we don't have to. If we can decide a case on the basis of a federal statute, we won't reach out to decide a constitutional question we don't really have to decide. b. Second principle: If we can decide a case based upon state law, we won't reach out to decide an unnecessary federal question, even on under federal statute. 4. Federal Taxpayer Standing: standing that an individual can assert based solely on the fact that he's a taxpayer. a. Frothingham v. Mellon (p. 1582): federal taxpayer standing does not exist where grievance is shared in an undifferentiated manner from the public at large. Taxpayer must suffer a particularized (direct) injury. If your injury is the same as everyone else, your remedy is political (you should go to Congress). (prudential selfrestraint). *****b. Flast v. Cohen (p. 1583): Both prongs of the logical nexus test must be satisfied (1st issue-specific standard of review): 1. Nexus between taxpayer status and type of legis. enactment attacked (must challenge the exercise of congressional power under the taxing and spending clause), and 2. Nexus between that status and the precise nature of the constitutional infringment alleged (must show that the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of taxing and spending power). This t