con law young 08

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Constitutional LawYoung, Fall 2008

FoundationsI.

Functions of Constitutions Constitute the Government set out general philosophy, set the tone for other

laws, spell out duties of elected officials Confer rights and duties on individuals Entrench certain structures, principles, and rights (codifies pre-existing rights) Differ from ordinary laws b/c lessspecific; more attention to structure,

protections, and proceduresII.

District of Columbia v. Heller, 128 S. Ct. 2783 (2008) [P27]A.

U.S. Const., 2ndAmend.:A well regulated Militia, being necessary to the

security of a free State, the right of the people to keep and bear Arms, shall notbe infringed.

B.

Contending Positions Individual Right: The Amendment guarantees an individual right to

keep and bear arms, not only for militia use but also for self-defenseand the possibility of resisting a tyrannical govt (Scalia)

Collective Right: The Amendment guarantees only the right toparticipate in a lawfully organized militia (and may shield suchmilitias, to some extent, from federal interference) (Stevens)

C.

Sources of Constitutional Meaning in Heller

constitutional text, Federalist Papers history (English common law; changes from Articles of

Confederation; constitutional drafting history; parallel stateprovisions; post-ratification interpretation and practice)

judicial precedent The Relevance of Policy:Dueling experts and studies contend that strict

handgun bans will increase/decrease gun crime and accidents. Thisevidence raises several questions, including: To what extent can policy gains justify incursions on constitutional

rights? Who decidesthe court or the legislaturehow to weigh conflicting

evidence about policy? (Breyer is most sophisticated with policydecisions)

The Dead Hand Problem:If adhering to the Second Amendmentrequires the Government to forego policies that would save significantnumbers of lives, why do it? Why do the wishes of the (very dead)Framers trump the wishes of contemporary elected officials, which


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presumably reflect not only contemporary political preferences but alsocontemporary policy realities? after all, Britain had a non-entrenched Constitution (til the 1970s)

and Jefferson didnt want to entrench a ConstitutionIII.

Three Kinds of Constitutional Theories

A.

Theories of obligationexplain why we obeythe Constitution. Somepossibilities:1. Divine right2.

Consent -- it had authority at the time, but all of those guys were rich,white men who are all now dead; is there implied, on-going ratification bythose not leaving the country?

3. Convention -- we need stability; it's easier to play by these rules than toconstantly reinvent the wheel; pre-commitment to long-term thinkingwith entrenchment, an agreement to see how things work out, know thatit takes time to figure out if a law works or not; lots of entrenched things

aren't in the constitution; effort to achieve self-gov't over time4. Morality -- Framers' values are appealing, we like it; but, if we ignore theparts that aren't appealing (e.g. slavery), then are we following theConstitution or our own morality

B.

Theories ofjudicial reviewexplain whyjudgesget to interpret it, as opposedto other governmental officials:1.

judicial job description -- "least dangerous branch" according to Hamilton[P67]; also, courts have to apply the highest law in cases before them, sohave to interpret

2. institutional capacity (Bickel)3. representation reinforcement (Ely)

4.

Note -- can have entrenched Constitution without JR, just one less layer ofprotection; how effective is JR? (judicial efficacy)

C.

Theories of interpretationtell us how to figure out what the Constitutionmeans. Some examples:1.

Textualism -- reliance on the plain meaning of the text2. Originalism -- reliance on "original understanding" of text3. common law development -- reliance on precedent-setting interpretations

of C over time4. moral theory -- choosing the most morally satisfactory meaning of C

Marburyand Judicial ReviewI.

Judicial ReviewA.

The Council of Revision Proposal:The Constitutional Conventionconsidered and rejected a proposal for a Council of Revision aninstitution within the federal legislative or executive branch that would reviewlaws for their constitutionality.


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B.

Review of State Laws:The Court was almost surely understood to have thepower to strike down unconstitutional statelaws.

C.

The Convention Debates:Statements at the Constitutional Conventiongenerally assumed that judicial review would exist.

D.

Federalist 78 (Hamilton) [P67]

No legislative act . . . contrary to the Constitution, can be valid. . . . If it be saidthat the legislative body are themselves the constitutional judges of their ownpowers, and that the construction they put upon them is conclusive upon theother departments, it may be answered, that this cannot be the naturalpresumption. . . . It is not otherwise to be supposed, that the Constitutionshould intend to enable the representatives to substitute their willto that oftheir constituents. It is far more rational to suppose, that the courts weredesigned to be an intermediate body between the people and the legislature, inorder . . . to keep the latter within the limits assigned to their authority.

II.

Chronology forMarbury v. Madison:

Nov. 1800: Adams and the Federalists lose the elections of 1800. Jefferson and Burrtie in electoral votes.Feb. 4, 1801: John Marshall takes office as Chief Justice after being appointed byAdams. Marshall continues to serve as Secretary of State.Feb. 13, 1801: Federalist Congress passes the Circuit Courts Act establishing six circuitcourts with 16 new judges, and reduces the Supreme Court from 6 to 5 justices.Feb. 17, 1801: House of Representatives breaks electoral deadlock in favor ofJefferson.Feb. 27, 1801: Federalist Congress passes Act creating 42 new Justices of the Peace inDC.March 3, 1801: Senate completes confirmation of the new Justices of the Peace, but

Marshall fails to deliver all the new Justices' commissions.March 4, 1801: Jefferson takes office and instructs Madison, the new Secretary ofState, not to deliver the commissions.Dec. 21, 1801: Marbury files suit.March 8, 1802: The new Republican Congress repeals the Circuit Courts Act andabolishes the Court's 1802 term.Feb. 1803: The Court hands down its decision inMarbury. Six days later, it upholdsthe repeal of the Circuit Courts Act against constitutional challenge. Stuart v. Laird,5 U.S. (1 Cranch) 299 (1803).

III.

Laws at Issue inMarbury

U.S. Constitution, Art. III, 2 Clause 1: The Judicial Power shall extend to all Cases, in Law and Equity,

arising under this Constitution, the laws of the United States, and Treatiesmade, or which shall be made, under their Authority; -- to all Cases affectingAmbassadors, other public Ministers (interpreted as foreign ministers) andConsuls; -- to all Cases of admiralty and maritime Jurisdiction; -- toControversies to which the United States shall be a Party; -- to Controversiesbetween two or more States; -- between a State and Citizens of another State; --


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between Citizens of different States; -- between Citizens of the same Stateclaiming Lands under Grants of different States, and betweena State, or theCitizens thereof, and foreign States, Citizens or Subjects.

Clause 2: In all Cases affecting Ambassadors, other public Ministers andConsuls, and those in which a State shall be a Party, the Supreme Court shall

have original Jurisdiction. In all the other Cases before mentioned, the supremeCourt shall have appellate Jurisdiction, both as to Law and Fact, with suchExceptions, and under such Regulations as the Congress shall make.

Section 13 of the Judiciary Act of 1789, 1 Stat. 73: The Supreme Court shallalso have appellate jurisdiction from the circuit courts and courts of the severalstates, in the cases herein after specially provided for; and shall have power toissue writs of prohibition to the district courts, when proceeding as courts ofadmiralty and maritime jurisdiction, and writs of mandamus, in caseswarranted by the principles and usages of law, to any courts appointed, orpersons holding office, under the authority of the United States.

Is this statute really unconstitutional? Marshall reads it in an unusual way tocreate a constitutional conflict to create precedent for JR in cases ofconstitutional conflict

IV.

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) [P75] -- Question of norms -- doyou try to undo your predecessor's work? Or do you respect it? Those norms weren'tyet established; original jurisdiction in SCT was probably Marbury's only option

Questions in cases are either substantive, judicial, or remedial -- problem in19th century was, can the Court order senior executives? Can it ignore or strikedown a statute it deems unconstitutional?

Three Questions1. Does Marbury have a right to the commission he demands?

2.

If he has a right, and that right has been violated, do the laws of hiscountry afford him a remedy?

3.

If they do afford him a remedy, is it a writ of mandamus issuing from thiscourt?

Marshalls Arguments for Judicial Review1. nature of a written C -- entrenchment, C has to be supreme when in

conflict with statutes2. nature of the judicial function -- judge's role in deciding the case in front

of him; "province of judicial department to say what the law is. Those whoapply the rule to particular cases, must of necessity expound and interpret

that rule. If two laws conflict with each other, the courts must decide onthe operation of each"3.

arising under jurisdiction4.

Constitutional restrictions on Congress -- only laws made in pursuance ofthe C are valid, Congress can't decide the meaning of a document thatlimits its powers

5. Judges oath -- legislators take that oath too6. Supremacy Clause


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Marshall has to rule that Madison and Jefferson did something illegal, whilemaking sure he doesn't issue an order that Madison and Jefferson can ignore;by doing this, he grabs power for the SCT and credibility for JR precedent

Marshall spent a lot of time deciding stuff he didn't have the power to say (b/cit was outside the scope of the case once he decided the SCT didn't have

jurisdiction), but Jefferson didn't have the power to ignore Marshall'sdeclarations b/c he used the dicta to say it, he establishes all sorts of power forthe SCT and there's nothing Jefferson can do about it

Implication -- all of the power comes from the courts' power to decide the casein front of it, the scope of the case is crucial -- has to have someone who wasinjured by the statute so the court can decide it, have to have standing

V.

Critiques of Judicial Review [P87]A.

The Counter-majoritarian Difficulty:Professor Bickel argues that thepresumption in a democracy is that the majority of the people rules, and anydepartures from that principle like judicial review have to be specially

justified. This is called the counter-majoritarian difficulty. Some possible answers:

Hamilton, Federalist 78: Courts exercise judgment, not will Bickel: Courts have a unique capacity to decide issues of principle. Important for judicial credibility that they are seen to be doing

something largely apoliticallyB.

Diminished Capacity: Does judicial review weaken the capacities of otheractors Presidents, Members of Congress, the People in general to considerand act on constitutional principle?

C.

Main Problems with JR: should judges be impeachable for bad decisions onthe bench?

Courts aren't in touch with the people Not accountable to the people (appointed, tenured for life) Will see them stand in the way of progress (though they also promote it)

D.

Arguments for JR(not Marshall's, from notes) Separation of Powers forces each branch to be more careful with their

decisions b/c they don't know what will happen once it leaves their hands Specially trained in law -- "no will, only judgment" -- depends on law

being different from politics (is it?); may be political to get judgeships,doesn't mean the decisions have to be self-interested

Long View -- lack of accountability enables the role to be different from

legislators b/c they can take a longer view (elitist argument) C made a system where lots of things get in the way of quick changes,

prevents accumulation of power (for better and for worse) Courts deal with facts of injuries; legislatures decide on statutes in the

abstract whereas courts deal with their consequences in fact, moreconcrete decision about the value of the statute when someone's beeninjured by it


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Outside Authority -- justices are supposed to point to something outsideof themselves on which they based their decision; not much of a check,but have to write opinions with justifications

E.

Checks on JR (notes) Congress has power over the jurisdiction and budgets of lower federal

courts -- they can't hear abortion, flag-burning, terrorism detainee cases;Congress can make it hard for courts to function with budget control

Rights and Remedies -- Congress has control over what courts can do; cancreate immunity doctrines, can amend the C (though only 4 amendmentshave overturned SCT decisions), most Constitutional change comes fromJR b/c decisions are easier to overturn than creating amendments

Power of judicial appointment keeps SCT roughly in line with publicopinion (on average there's a new appointment every 22 months);politicization of appointments safeguards against out-of-touch judges

Jurisdictional Stuff inMarburyI.

Federal Jurisdiction BasicsA.

The Federal Courts are courts of limitedjurisdiction. State courts are courts ofgeneraljurisdiction; can hear any sort of case,

unless either state or federal law specifically forbids it Federal courts are courts of limitedjurisdiction; presumptively they cant

hear a case, unless some specific ground for federal jurisdiction is present Federal and state court jurisdiction often overlaps, so that the plaintiff can

choosewhere to file

Two most important grounds of federal jurisdiction are federal questionand diversity of citizenship.B.

Article III sets a ceilingon federal jurisdiction. Congress has the power to determine how much jurisdiction the federal

courts will have, up to the maximum limits set forth in Art. III Federal courts do not have jurisdiction unless (1) a federal statute so

provides, and (2) that statute falls within the bounds of Art. III Congress has never chosen to implement the full scope of jurisdiction

allowed by Art. III, although by the 20thcentury mostof it had beenauthorized by statute.

Federal courts have also claimed authority to narrow their own

jurisdiction by creating prudential rules of justiciability1.

Can't assert third parties' rights (need concreteness and a party whowas injured to fully assert the rights, to have some strong stake inthe outcome so they litigate well enough)

2. No generalized grievances, political checks fix that (don't liketaxpayer claims)


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3.

Zone of interest standing (are you the type of party this law wasdesigned to help?)

II.

Ingredients of Constitutional CasesA.

Scope:The Constitution binds the Governmentnot private parties;constitutional litigation will always involve some governmental action and the

Government (either local, state, or federal) will generally be a partyB.

Posture:Generally, constitutional cases will arise in one of two ways:1. Government acts to enforce a law or policy against a private person, and

the private person defends by arguing that the governments action isunconstitutional (e.g. Texas prosecutes Gregory Johnson for flag-burning)

2.

A private person initiates litigation to challenge a law or othergovernmental action (e.g. Marbury sues to establish his right to acommission as justice of the peace)

C.

Always Two Laws at Issue1. The statute or other governmental action being challenged; and

2.

The constitutional provision that the governments action is said toinfringe.D.

Facial vs. As-Applied Challenges Some government actions are always unconstitutional. (e.g., a statute

barring criticism of the government); such statutes are unconstitutionalon their face

Some government actions are OK in some circumstances, but not inothers (e.g. its not unconstitutional to ban trespass on governmentproperty generally, but it isunconstitutional to use such a ban to preventanti-government protests); these statutes are unconstitutional only asappliedto certain individual acts that are constitutionally protected

III.

Judicial Order of OperationsA.

Jurisdictional Issues First:A court that lacks jurisdiction cant consider themerits of a case.

B.

Statutory Grounds before Constitutional Grounds:A court should avoiddeciding a constitutional question if it can resolve the case on statutorygrounds.

C.

Constitutional Avoidance (related principle):If a statute is ambiguous, itshould be interpreted in such a way as to avoid doubts as to itsconstitutionality if at all possible.

JusticiabilityI.

Introduction [P103]A.

Advisory Opinions:Federal courts may only rule on legal issues when theyare necessary to the decision of an actual dispute; reasons why:1. Branches might look too cozy to be performing checks and balances

properly


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2.

Need to limit courts' workloads3.

Hurts court's credibility if opinion ignored (b/c President not bound byadvisory opinion)

4. People get used to ignoring courts5. Basis for JR comes from having to settle a case in front of the court

6.

Harder to make a quality decision in the abstractB.

Standing:Standing essentially asks whether the lawsuit is being brought bythe right plaintiff; requires an individual injury to create a case; ask, "if notthem, then who can challenge this law?"; factors:1.

Concreteness -- How concrete and particular to this plaintiff is this injury?2.

Traceability -- Is it traceable to the law directly?3. Redressability -- Will a court be able to solve this problem with money or

a court order?C.

Ripeness:Ripeness asks whether the lawsuit has been brought too soon,before the dispute has ripened into a real case (part of prohibition on

advisory opinions)D.

Mootness:Mootness asks whether the suit has been brought too late, after thedispute between the parties has ceased to exist (part of prohibition on advisoryopinions)

E.

Legal Basis:These doctrines rest on both constitutional and prudentialgrounds:1.

Constitutional:Article III limits the judicial power to "cases andcontroversies."

2. Prudential:Limitations on judicial power that the courts have imposed onthemselves for policy reasons

Note -- prudential rules, unlike the ones that are derived from Art. III, can

be overridden by CongressII.

Advisory OpinionsA.

Early Practice:Court rejects request from President Washington for legaladvice concerning legal questions arising from U.S. neutrality in the warbetween England and France.

B.

State Practice:State courts arent bound by Art. III; many are authorized toissue advisory opinions.

C.

Implications for the Federal Courts source of the other justiciability doctrines source of the general disapproval of judicial dictum

III.

StandingA.

Constitutional Standing:The core requirement is that the plaintiff musthimself have suffered some threatened or actual injury resulting from theputatively illegal action. Three requirements:1.

concrete injury:Is the injury too abstract, or otherwise not appropriate,to be considered judicially cognizable?


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The Court defines cognizable 'injury in fact' as an invasion of alegally-protected interest which is (a) concrete and particularized,and (b) 'actual or imminent, not conjectural or hypothetical.'

2.

causation or traceability:Is the line of causation between the illegalconduct and injury too attenuated?

3.

redressability:Is the prospect of obtaining relief from the injury as aresult of a favorable ruling too speculative?

Traceability Redressabilitychallenged act -------- Injury -------- judicial order

B.

Prudential Standing1.

no third party standing: the "general prohibition on a litigant's raisinganother person's legal rights,"

2.

no generalized grievances:"the rule barring adjudication of generalizedgrievances more appropriately addressed in the representative branches,"and

3.

zone of interests:"the requirement that a plaintiff's complaint fall withinthe zone of interests protected by the law invoked."C.

Organizational Standing: Organizations can have standing if:1.

its members would otherwise have standing in their own right;2.

the interests it seeks to protect are germane to the organizations purpose;and

3.

neither the claim asserted nor the relief requested requires the participationof individual members in the lawsuit; Hunt v. Washington Apple

Advertising Commn, 432 U.S. 333 (1977)IV.

Ripeness:Has the plaintiff sued too soon? Ripeness generally concerns theavailability ofpre-enforcementreview that is, the right of a plaintiff to challenge a

law or policy before that law has been enforced against him.A.

The Two-Part Test1.

Are the issues fit for judicial resolution?2.

Will the parties suffer hardship if judicial resolution is delayed?B.

Fitness for Judicial Resolution:Some considerations: Are the issues purely legal? Is factual context important to the resolution of the issues? Is the challenged action, if by an administrative agency, final under the

APA?Hardship:Some considerations:

Does the challenged government action govern primary conduct? Are there severe civil or criminal penalties for violations of the challenged

rule?V.

Mootness:Has the plaintiff sued too late? Or have the issues in controversy goneaway due to events occurring after the plaintiff filed suit?

A.

Reasons a Claim Might Become Moot: Changes in the underlying legal framework The challenged government action is of limited duration


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The opponent provides full reliefB.

The Capable of Repetition Exception:An issue is not moot if it is capableof repetition, yet evading review. e.g., Roe v. Wade. The plaintiff must showthat: the challenged action is too short in duration to be fully litigated prior to

its cessation or expiration; and reasonable expectation that the same complaining party will be subjected

to the same action again.VI.

Warth v. Seldin(1975)[P89] -- three different kinds of plaintiffs:A.

Low-income and minority individuals -- claim to have been excluded fromliving there; trouble establishing traceability and redressability b/c extra linkb/t zoning ordinance and plaintiffs, can't be certain that third parties notbound by this judgment (e.g. builder) will provide low-income housing if thecourt rules for them

B. Rochester Home Builder's Assoc.; organizational standing requires:

1.

Members must have standing individually2. Claim must be germane to the purpose of the association3. Can't require the participation of individual members not bound by the

judgment (have to make it concrete, that someone's trying to build thereand has been denied b/c of this law)

C.

Taxpayers in Rochester -- no direct causation or proof of redressability,requires the action of third parties not bound by the judgment (statelegislators), very speculative and a general grievance

D. Brennan's dissent argues SCT is making the access to the courts too narrow,that this is the type of claim that Fair Housing Codes were instituted to get ridof; says SCT is using its views about the merits to get rid of the claim before

hearing it

Political Questions--political outcomes do not make politicalquestions

I.

Baker v. Carr, 369 U.S. 186 (1962) -- hadn't been willing to intervene in thelegislative branch before this, but b/c the legislature wasn't willing to take away itsown power and no one else could make them, the Court assigned the District Courtsto redraw the lines, aggressive judicial involvement; was controversial b/c a majorintrusion into state gov't brought federalism questions; was the beginning of a more

narrow political questions doctrineA.

Main argument over which branches of gov't the political question doctrinewas meant to protect1.

Brennan says it's about separation of powers at the federal level; the Courtonly needs to make sure it's doing judicial things and not worry aboutwhat it intrudes into, lays out 3 sets of criteria for deciding if the Courtshould take the case: textual, functional, and prudential (see B)


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2.

Frankfurter says federalism and separation of powers b/t state and feds,protection of state powers; dissent stresses importance on voluntarysubmission by Court to protect its credibility and that this decisionthreatens the Court's impartiality

3. Final rules were:

a.

One man, one vote -- wasn't controversial b/c seemed fair andreasonable, go by population

b. Equal Protection was the textual hook on which the Court supportedthe new standard

B.

Factors favoring Non-justiciability (from Brennan's majority opinion)1.

"textually demonstrable constitutional commitment of the issue to acoordinate political department"

2.

"lack of judicially discoverable and manageable standards for resolving it"3. "the impossibility of deciding without an initial policy determination of a

kind clearly for non-judicial discretion"

4.

"impossibility of a court's undertaking independent resolution withoutexpressing lack of the respect due coordinate branches of government"5. "unusual need for unquestioning adherence to a political decision already

made"6.

"potentiality of embarrassment from multifarious pronouncements byvarious departments on one question" (i.e. need for judicially-manageablestandards, can courts do this?)

C.

Examples of Non-justiciable Issues (mostly discretionary things that can'tbe unconstitutional)

Foreign relations: Often no judicial standards; discretion committed toexecutive or legislature; necessary to speak with one voice. But not every

foreign affairs case is non-justiciable Dates of duration of hostilities: Need for finality; where clear criteria are

available, courts can decide Validity of enactments: Respect for coequal branches; need for finality

The BakerCriteria:You could divide the six criteria into three categories:1.

The Textual Criterion:a. Whether the issue is committed to another branch of governmentb. Most important of any criteria (if it's committed textually, they won't

hear it)2.

Functional Criteria:

a.

Lack of judicially manageable standardsb.

necessity of an initial policy determinationc.

go to the institutional capacityof the courts to decide the case3.

Prudential Criteria:a.

Respect for coequal branchesb. need to adhere to a political decision already madec. embarrassment from different branches reaching different

conclusions


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d.

go to the institutional consequencesof an adjudication (are leastimportant of three types)

II.

Strong vs. Weak Theories of Political Question DoctrineA.

Strong:A strong theoryof the political question doctrine would say that eventhough there might be a constitutional violation, the Court is powerless to do

anything about it because the question is committed to another branch (i.e.this might be a violation of the C, but it's not up to the Courts to decide)

B.

Weak:A weak theorywould simply use "political question" as a way ofexplaining that there is no substantive violation (i.e. the other branch hasbroad discretion in a particular area under the C, so can't violate C in this area)

III.

Nixon v. United States, 506 U.S. 224 (1993)A. The Court holds that Judge Nixons challenge to the procedures by which the

Senate considered his impeachment is a non-justiciable political questionB. The Court focuses exclusively on two of the Bakerfactors:

1. Textual commitment (Senate has "sole" power to try impeachments)

2.

Judicially-manageable standardsC. Nixonsuggests that it is the nature of the constitutional challenge, not thenature of the constitutionalpowerbeing exercised, that matters

IV.

Is There A Political Question Doctrine?influential article by Louis Henkinquestions whether there really is a "political question" doctrine at all. SeeHenkin, IsThere a Political Question Doctrine?85 Yale L.J. 597 (1976). Henkin says the non-justiciable cases all fall into one of three categories:A. The Constitution commits the act at issue to the discretion of Congress or the

Executive, and that branch's decision is final; no constitutional violation on themerits because the other branch has acted within its authority; not possible toviolate C if act within discretion (e.g. which country to recognize)

B.

The act at issue is reviewable by the Courts, but the Congress or Executive hasbroad enough discretion that almost can't violate the C. Again, this is adecision on the merits

C.

The Court applies traditional limits on the equitable powers of courts. Theselimitations give the courts broad discretion to deny injunctive relief wherethere is no workable way to fashion a remedy or where there is no pressingneed for equitable relief; not a special exception to judicial review

These three categories represent decisions on the merits and traditional limitationson judicial behavior, thus Henkin's argument that the Court doesn't really have apolitical question doctrine b/c it couldn't find violations of the C in these situations

even if that doctrine didn't exist

V.

What You Need to Know1.

Federal courts sometimes declare cases non-justiciable on the ground that theypresent "political questions"

2.

The six factors listed by Justice Brennan in Baker v. Carr, and the fact that thetwo most important are: textual commitment to another branch of governmentand lack of manageable judicial standards for deciding the case


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3.

The political question doctrine is primarily a function of separation of powers,not federalism

4.

The application of the political question doctrine is (a) very rare, and (b) highlydependent upon the circumstances of the case -- in particular on theinstitutional consequences of judicial review

5.

In many -- if not all -- cases, application of the "political question" doctrine willeither be (a) a finding that there is no constitutional violation on the merits, or(b) an exercise of the court's equitable discretion not to issue an injunction

6.

The political-ness of a question turns on the nature of the plaintiffs claim, noton the governmentfunctionthats being exercised; so you cant saycategorically that impeachment cases are never justiciable, etc

Federalism and the Marshall Court-- remember,Marshall's project is to build a space for the federal gov't as separate from the stategov'ts, a newly powerful gov't from that of the Articles of Confederation, so Marshall

is highly in favor of federal authority b/c he has to overcompensate to carve outauthority vis-a-vis the states

I.

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819)A.

Two Issues1. Does Congress have power to incorporate a bank?2. Can Maryland tax a branch of that bank? ("the power to tax is the power

to destroy")B.

The 10th Amendment:1. The powers not delegated to the United States by the Constitution, nor

prohibited by it to the States, are reserved to the States respectively, or tothe people2.

Doesn't say "expressly delegated" as Articles of Confederation did,Framers specifically omitted that word to allow implied powers, that'swhat drives Marshall's argument

C.

The Necessary and Proper Clause, Art. I, 8: Congress is given the power tomake all laws which shall be necessary and proper for carrying into executionthe foregoing powers, and all other powers vested by this constitution, in thegovernment of the United States, or in any department thereof

D.

Marshalls Test:"Let the end be legitimate, let it be within the scope of theconstitution, and all means which are appropriate, which are plainly adapted to

that end, which are not prohibited, but consist with the letter and spirit of theconstitution, are constitutional."

Three key elements:1. Is the endwithin the enumerated scope of the Constitution?2. Is there some minimal degree of fit between the meansand the endthat

is, is this means appropriate to the end?


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3.

Is there no other part of the Constitution thatprohibitswhat Congress istrying to do?

b/c it's short there are implied powers; says if C had all of the possiblemeans enumerated it would have the "prolixity of a legal code" andwouldn't be flexible enough nor understandable enough to legitimately

function in perpetuity, relies partly on the nature of an entrenched C tojustify the implied powers

Maryland can't tax b/c that only benefits MD and hurts everyone else notrepresented in MD; is a "representative reinforcement" argument -- courtshould step in to protect everyone b/c MD will not change that whichbenefits it for the common good

E.

A Possible Limiting Principle: [S]hould Congress, under the pretext ofexecuting its powers, pass laws for the accomplishment of objects not entrustedto the government; it would become the painful duty of this tribunal, should acase requiring such a decision come before it, to say that such an act was not

the law of the landII.

The Commerce ClauseA.

Text:All Art. I, 8 actually sayson the subject of commerce is that Congressshall have power [t]o regulate Commerce with foreign Nations, and among theseveral States, and with the Indian Tribes

B.

History: Madison said that, under the Articles of Confederation, want of ageneral power over Commerce led to an exercise of this power separately, bythe States, which not only proved abortive, but engendered rival, conflicting,and angry regulations The Commerce Clause is usually viewed as an attempt to promote

two kinds of unity:

1.

Economic Unity: The Framers aimed to achieve economicprosperity by creating a national market free of internal tradebarriers

2.

Political Unity:The Framers also thought that economicbarriers went hand in hand with political barriers, and thatinterstate trade wars would lead inevitably to political conflictthat might threaten the Union

C.

Two Models of Federalism Dual Federalism: The national and state governments each enjoy exclusive

spheres of authority; court must enforce boundary between them

Concurrent Power: The national and state spheres of regulatory authoritylargely overlap; courts must resolve conflicts between national and statelegislation dealing with the same subject

D.

Gibbons v. Ogden, 9 Wheat. (22 U.S.) 1 (1824): Two issues: What is the scope of Congresss affirmativepower over commerce?

commerce clause regulates commerce amongstates, but there waseconomic interrelationship b/t trade within a state too, all commerceaffects all commerce, but need a limiting principle on federal gov't and


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constitution drew it there; have to draw the line so there's meaningfulstuff on both sides

1.

Marshall acknowledges that the line is pretty broad, but thereare other limits from Congress' overreaching, main check iselection/political unpopularity: Congress wont overreach b/c

that would make their constituents unhappy, one of the"political safeguards of federalism"

To what extent does Congresss authority supplant state regulatoryauthority over the same subject matter?Whenever Congress actsunder the Commerce Clause, they supplant any state regulation on thatmatter and possibly in that entire field (see Federalism/DormantCommerce Clause)

E.

The Dormant Commerce Clause in the Nineteenth Century-- Congresshas two Commerce powers, which have become more powerful since 19thcentury: affirmative power to legislate/regulate and dormant power that

prevents state laws from placing an undue burden on interstate commerce(based on Congress' ability to regulate the entire field if it so chooses --preemption of state law by federal action)

3 "dual federalism" line-drawing attempts by SCT in 19th century:1.

Commerce vs. Police Regulation:The Marshall Court suggestedthat Congresss power over commerce regulation might be exclusive, seeGibbons v. Ogden, but that the States retained authority to engage inpolice regulation, seeWillson v. Black Bird Creek Marsh Co.(concurrentpowers)

2.

Local vs. National:The Taney Court holds that federal and statepowers are concurrent with respect to local issues, but federal power is

exclusive over "[w]hatever subjects of this power are in their naturenational, or admit only of one uniform system [may] justly be said to be ofsuch a nature as to require exclusive legislation by Congress" Cooley v.Board of Wardens

3.

Direct or Indirect: Between the late 19th century and the New Deal, theCourt applied a direct/indirect distinction, much as it did in determiningthe scope of Congress's power to regulate intrastate commerce. The Courtstruggled to draw a determinate line between direct and indirect

III. Methodological IssuesA.

Sources of Authority-- judges need to point to something outside of

themselves for justification Text Structure

B.

Types of Tests Means/Ends Fit Classification Motive

C.

The Frankfurter Constraint:


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Successful legal doctrine must be relatively determinatein order to protectthe Court from accusations that extra-legal factors influence its decisions;

need to deliver consistent rulings in cases that appear to be the same.Avoid the appearance of "judicial policy-making"

Crucial federalism question is whether any formula is sufficiently

determinate to provide a principled basis for judges to restrict the exerciseof national power (Court will try again with Lopez) -- remember, thejustification for JR is that judges are enforcing law, not their own policyviews

Slavery and the Taney Court

I.

Slavery in the Constitution-- conflict b/t law and morality; also federalism andseparation of powers dimensions -- how much should the court review?; to whatextent should Court be obligated by Framers' intent?

A.

The Slave Trade Clause,Art. I, 9, cl.1.The Migration or Importation of such Persons as any of the States nowexisting shall think proper to admit, shall not be prohibited by the Congressprior to the Year one thousand eight hundred and eight, but a Tax or duty maybe imposed on such Importation, not exceeding ten dollars for each Person.

B.

The Fugitive Slave Clause, Art. IV, 2, cl. 3.No Person held to Service or Labour in one State, under the Laws thereof,escaping into another, shall, in Consequence of any Law or Regulation therein,be discharged from such Service or Labour, but shall be delivered up on Claimof the Party to whom such Service or Labour may be due.

Was a compromise with slave states to get them to accept Constitution;trying to prevent escape b/c there's nowhere to go, no "town air makesfree" idea; controlling an externality, preventing one state's law frommaking it hard to enforce another state's law

C.

The Three-Fifths Clause, Art. I, 2, cl. 3.Representatives and direct Taxes shall be apportioned among the severalStates . . . according to their respective Numbers, which shall be determined byadding to the whole Number of free Persons, including those bound to Servicefor a Term of Years, and excluding Indians not taxed, three fifths of all otherPersons.

Gave Southern states advantage in representation b/c they were givencredit for more population even though that population couldn't vote

II.

Prigg v. Pennsylvania, 41 U.S. 539 (1842) -- same test as McCulloch, which isenumerated here, the ends or the means? Dissent says states should be able to gofurther in process requirements, at least make sure the slave-catchers have the rightperson, majority doesn't want states to be able to limit federal power by imposingridiculous procedure

A.

Three Questions


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1.

Do feds have exclusive power to regulate fugitive slaves and the process oftheir apprehension?

2.

If not, is PAs statute providing procedural safeguards for alleged fugitiveslaves preempted by the federal fugitive slave law?

3. Can PA state officials be required to participate in the enforcement of the

federal statute?B.

Two Kinds of Threats to State Autonomy Vertical Aggrandizement: national government seeks to impose its own

will on the state gov'ts Horizontal Aggrandizement: powerful group of states uses the national

gov't as an instrument to impose its preferences on another group ofstates

in Prigg, the Southern states used a horizontal threat to the North to gettheir policy enforced; South not just protecting slavery, trying to co-optfederal government's authority, not using states' rights (despite the

traditional wisdom that the south wanted states' rights to protect slavery);with Prigg, Northern states wanted to use states' rights against slavery --complicated use of federal authority and states' rights on both sides

Why Story, the abolitionist, read the clause so broadly and strike down thePA law?1.

Maybe he thinks it's the correct reading and it's the Framers' intent; saidthe country needs to amend the C to get rid of slavery or allow restrictionsby states

2. Maybe he's more concerned about the Union than about abolition despitehis personal morality -- knows the Southern states won't trust proceduresimposed by anti-slavery states to be fair and a ruling that allowed them

might precipitate secession3.

Wants to read the law, not his own judgment, shows real restraint b/c theambiguous clause could have been read the other way with littlejustification required

4.

Thought he had struck a victory for abolitionism b/c of anti-commandeering, didn't think the feds would be able to enforce the slave-capturing b/c didn't really have federal officials

III.

Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857)A.

The Missouri Compromise:The Missouri Compromise of 1820 barred slavery inthe Louisiana Territory north of 3630, except for the state of Missouri which

was admitted as a slave state -- trying to pacify slave states and abolitionists toprevent/postpone secession and/or war Dred Scott says he became free when his master, Dr. Emerson, took him

into the Louisiana Territory north of the dividing line Had to be a citizen of a state other than NY to bring this case into the

federal courts on diversity jurisdictionB.

Two Citizenship Clauses


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Art. III, 2: The judicial Power shall extend . . . to Controversies . . .between Citizens of different States

Art. IV, 2: The Citizens of each State shall be entitled to all Privileges andImmunities of Citizens in the several States

C.

The Citizenship Holding:We think [black people] . . . are not included, and

were not intended to be included, under the word citizens in the Constitution,and can therefore claim none of the rights and privileges that that instrument

provides for and secures to citizens of the United StatesD.

Historical Evidence -- used original intent of Framers and originalunderstanding of late 18th century Evidence of English practices toward blacks pre-dating the Revolution State legislation forbidding racial intermarriage or the education of

blacks, in both the slaveholding states and more enlightened states likeMassachusetts and Connecticut

Early acts of Congress restricting the right of becoming citizens to aliens

being free white persons The Declaration of Independence (??!) Constitutional Text

E.

The Missouri Compromise Holding:The Court also strikes down theMissouri Compromise (after all, whats a lack of jurisdiction between friends?) Chief Justice Taney says an act of Congress which deprives a citizen of

the United States of his liberty or property, merely because he camehimself or brought his property into a particular Territory of the UnitedStates, and who had committed no offence against the laws, could hardlybe dignified with the name of due process of law; thought he was helpingthe Union, but in fact the Compromises were the only things preventing

civil war; everyone was begging for a judicial resolution This is an important precursor for the economic substantive due process

holdings of the Lochner era as well as for substantive due process inGriswold and Roe v. Wade

2 kinds of due process:1. Substantive -- some things the gov't just can't do to you2. Procedural -- they have to go through certain processes to be able to

do some thingsIV.

Slavery and Federalism a Dissenting View"Between the slave power and states' rights there was no necessary connection. The

slave power, when in control, was a centralizing influence, and all the mostconsiderable encroachments on states' rights were its acts. . . . Whenever a questionarose of extending or protecting slavery, the slaveholders became friends ofcentralized power . . .Slavery in fact required centralization in order to maintain andprotect itself . . .Thus, in truth, states' rights were the protection of the free states,and as a matter of fact, during the domination of the slave power, Massachusettsappealed to this protecting principle as often and almost as loudly as SouthCarolina."


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Henry Adams, John Randolph (1882)V.

Overruling Dred ScottAmendment XIV, 1 (1868):All persons born or naturalized in the UnitedStates and subject to the jurisdiction thereof, are citizens of the United Statesand of the State wherein they reside; note that:

Dred Scotts holding that individual states cannot determine qualificationsfor citizenship remains good law

The Courts embrace of substantive due process continues throughLochnerand modern privacy cases

Following Dred Scott, the Court focuses more on individual rights and less onstructure

The Reconstruction Amendments

I.

The Bill of Rights and the StatesA.

Barron v. Mayor and City Council of Baltimore(1833):Bill of Rights bindsonly the Federal Government that is, it does not apply to the States; historicalpurpose of Bill of Rights was against an overly powerful national gov't, notafraid of states in 1791

B.

The Question of Incorporation To what extent does the 14thAmendment incorporate the Bill of Rights

and apply it to the States? Does it include unenumerated rights that hadbeen protected vs. federal gov't?

Does the Due Process Clause of the Fifth Amendment incorporateconstitutional rights that apply only to the States (e.g., the Equal

Protection Clause of the 14th

Amendment, or the Contract Clause of theoriginal Constitution) and apply them to the Federal Government?

II.

The Reconstruction AmendmentsA.

The Thirteenth Amendment Section 1: "Neither slavery nor involuntary servitude, except as a

punishment for crime whereof the party shall have been duly convicted,shall exist within the United States, or any place subject to theirjurisdiction"

Section 2: "Congress shall have power to enforce this article byappropriate legislation"

B.

The Fourteenth Amendment Section 1: "All persons born or naturalized in the United States and subject

to the jurisdiction thereof, are citizens of the United States and of theState wherein they reside. No State shall make or enforce any law whichshall abridge the privileges or immunities of citizens of the United States;nor shall any State deprive any person of life, liberty, or property, withoutdue process of law; nor deny to any person within its jurisdiction theequal protection of the laws"


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Section 5: "Congress shall have power to enforce, by appropriatelegislation, the provisions of this article"

C.

The Slaughterhouse Cases(1873) Privileges and Immunities of StateCitizenship

a. Art. IV, 2 provides that The Citizens of eachState shall be entitled

to all Privileges and Immunities of Citizens in the several States.b. These are held, in Corfield v. Coryell, to include:

1. protection by the government2.

the right to acquire and possess property3.

the right to pursue and obtain happiness and safety Privileges and Immunities ofNational Citizenship

P&I recognized in Slaughterhouse:a.

the right to come to the seat of government to assert any claimagainst the government

b. free access to seaports

c.

right of access to the institutions of state government, such as thestate courtsd. protection by the federal government when on the high seas or in a

foreign countrye.

the right to peaceably assemble and petition for the redress ofgrievances

f.

the right to use navigable watersg. all rights secured under U.S. treatiesh. rights secured by the 13th and 15th amendments, as well as other

articles of the 14th Not that great, not the rights we traditionally think of as the important

ones we get from citizenship; 2 reasons:a.

argument of breadth vs. depth, that extending the amendment tocover groups other than former slaves would make it less effective inprotecting former slaves

b.

Structural -- if construe it more broadly, Court would give federalgov't lots of room to interfere in state gov't b/c 14th amendmentgives Congress the right to enforce these P&I against states; everyexpansion of individual rights would give Congress more power overstates and make federal gov't all-powerful

3.

The Due Process Argument: [A] law which prohibits a large class of

citizens from adopting a lawful employment, or from following a lawfulemployment previously adopted, does deprive them of liberty as well asproperty, without due process of law; Bradley's dissent; says it's a big dealto choose your profession, it's a basic economic right, Court should paymore attention to means/ends fit here, is the monopoly necessary orhelpful for the improvement of health in the city?

D.

The Civil Rights Cases(1883) Two issues:


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a.

Can Congress enforce the 14thAmendment against private actors?SCT says no, only limits gov't

b.

The 13thAmendment does apply to private actors, but isdiscrimination in public accommodations sufficiently connected toslavery?

1.

argue from 13th amendment, say it's inferior treatment and it'sthe "badges and incidents" of slavery, part of social system ofdiscrimination, argue that the 13th amendment should addressthat too, not just the chattel part; majority says there's afundamental difference b/t slavery and discrimination (part ofthat breadth vs. depth argument)

2. would have been a radical expansion of Congressional power toexpand 13th amendment to include all discrimination on thebasis of race; doesn't seem to be a middle ground b/t fullexpansion and narrow reading; it's partly Congress' fault for not

legislating vs. Jim Crow and enforcing 15th amendment(political rights of former slaves); Congress didn't have enoughnerve

c.

Civil war changes Constitutional structure:1.

Ended question of secession2.

Created nationalism in the North, consciousness of US asnation

3. Builds federal capacity and power (had money and power tofight war, kept it afterwards)

The LochnerEra and Freedom of ContractI.

Overview -- Three sets of challenges to government authority to regulate theeconomy:

A.

Economic Substantive Due Process:Court recognizes fundamental rightsunder the due process clause such as freedom of contract that inhibiteconomic regulation

B.

Commerce Clause:Court resistsfederaleconomic regulation by restrictivelyconstruing Congresss power under the Commerce Clause

C.

Nondelegation:The Court resists the establishment of the federal

administrative state by enforcing limits on Congresss ability to delegateauthority to administrative agencies (will deal with this in federalism)Between the 1890s and 1937, the Court strikes down a wide variety of state andfederal regulatory statutes. Then, perhaps in response to FDRs court-packingplan, the Court retreats.

Court strikes down some regulations and upholds others, seems arbitrary; usingjudicial activism to strike down the regulatory state


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II.

Due Process and Freedom of ContractA.

Substantive Due Process pre-Lochner1.

Early 19thCentury Calder v. Bull(1790): reference to natural law as first principle of law,

an independent check on gov't

Fletcher v. Peck(1810) Dred Scott Some cases in the state courts likewise use due process as a ground

for invalidating regulations that threaten property or contract rights.2.

Late 19thCentury Munn v. Illinois(1876): state legislatures can regulate grain storage

facilities even if it burdens interstate commerce, though regulationcan go too far

Minnesota Rate Cases(1913): state can't fix intrastate rates of aninterstate carrier to reduce their profits unreasonably

Allgeyer v. Louisiana(1897): first recognized the freedom of parties tocontract without state interference (see below)B.

Freedom of Contract: The liberty mentioned in [the 14th] amendment meansnot only the right of the citizen to be free from the mere physical restraint ofhis person...[but] the right of the citizen to be free in the enjoyment of all hisfaculties; to be free to use them in all lawful ways; to live and work where hewill; to earn his livelihood by any lawful calling; to pursue any livelihood oravocation, and for that purpose to enter into all contracts which may be proper,necessary and essential to his carrying out the purposes above mentioned

Allgeyer v. LouisianaC.

Lochner v. New York(1905) [P261]

Court holds that a New York statute limiting bakery workers to sixtyhours per week, or ten hours per day, unconstitutionally interferes withthe freedom of contract b/t bakery workers and their employers

Court distinguishes b/t bakers and miners, saying the state can regulateespecially dangerous industries

Means/ends test: police power cited, but limiting hours isn't relatedenough to health of workers and doesn't affect public health according toCourt (bread not healthier or less healthy based on hours worked)

Not interested in equalizing bargaining power b/t laborer and employer,not a legitimate end for regulation

Holmes dissent: A constitution is not intended to embody a particulareconomic theory...It is made for people of fundamentally differingviews...I think that the word liberty in the Fourteenth Amendment isperverted when it is held to prevent the natural outcome of a dominantopinion, unless it can be said that a rational and fair man necessarilywould admit that the statute proposed would infringe fundamentalprinciples as they have been understood by the traditions of our peopleand our law


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Where Did the Court Go Wrong? Some possibilities: Liberty under the 14thAmendment doesnt include liberty of

contract Even if liberty includes liberty of contract, Due Process Clause

guarantees only fairprocedures

Even if there is substantive protection for liberty of contract, theCourt blew the means/ends analysis by applying too rigorous astandard

Court inappropriately held that the labor law justification was anillegitimate end

Harlan's dissent says should defer to legislature on close calls Meyer v. Nebraska, Pierce v. Society of Sistersdecided in 1920s; precursors

for rights of self-determination and privacy in education of children,based on same theories as freedom of contract [P292]

Skinner v. Oklahoma(1942): seemingly recognizes bodily integrity as

fundamental right; arbitrary sterilization of some recidivist criminals andnot others struck down under Equal Protection b/c line b/t embezzlementand armed robbery not reasonably related to end of preventing futurecrime (Buck v. Bell, 1927, upheld forced sterilization)

The LochnerHeyday1.

Kinds of Laws Struck Down maximum hours yellow-dog contract restrictions (required agreement to not join

union as part of job offer) minimum wages (Adkins v. Children's Hospital-- women's minimum

wage struck down)

price regulation business entry restrictions

2.

Inconsistent Results:Court upheld as many statutes as it struck downduring this period,

E.

The Public Interest Doctrine: In cases likeNebbia v. New York(filled milkcase), the Court upholdseconomic regulation against freedom of contractchallenges on the ground that the relevant industry is affected with a publicinterest. The problem, of course, is to trace the boundaries of this category[P280]

The Commerce Clause in the LochnerEraI.

OverviewA.

Dual Federalism and Concurrent Jurisdiction-- changing ideas of spheresof authority1.

Dual Federalism seeks to divide the world into two separate spheres ofregulatory jurisdiction, with state and federal authority exclusive within


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their respective spheres (e.g. Federal government has exclusive authorityover foreign affairs; the States have exclusive authority over family law)

2.

Concurrent Jurisdiction recognizes both state and federal authority toregulate most subjects. The question then is how to identify and resolveconflicts between federal and state activity (e.g. both the States and the

Federal government may regulate most commercial activity, but federallaw prevails under the Supremacy Clause in the event of a conflict)

B.

Formalism and Realism -- 2 ways of thinking about the doctrines for Court1.

Formalism:The Court examines the statute and the regulated activity todetermine whether certain objective criteria are met. Actual economiceffects or legislative motive are unimportant.

2. Realism:The Court focuses on actual economic impact of the regulationor the actual motivation of Congress.

C.

Two Sets of Cases1. Economic Regulationcases: Congress is trying to regulate somewhat more

broadly than strictly commercial transactions involving more than onestate; using unenumerated means for Commerce Clause as enumeratedend (E.C. Knight, Shreveport Rate Cases)

2. Social Regulationcases: Congress is trying to achieve certain social ormoral ends through banning interstate transportation of certain people orgoods; using Commerce Clause as means for unenumerated ends(Champion v. Ames; Hammer v. Dagenhart)

II.

The Economic Regulation CasesA.

The E.C. Knight Line (1895) [P293]: Two important limits on the commercepower:1. commerce is narrowly defined to exclude manufacturing, agriculture,

etc.2.

the effect of an activity on interstate commerce must be direct, notindirect

Also demonstrates the doctrine of "constitutional avoidance", construingthe statute narrowly to prevent a constitutional conflict

Test is somewhat amorphous b/c it's a characterization/definitional test,not means/ends fit

B.

The Shreveport Rate CaseLine: Congress canregulate where interstate andintrastate commerce are so intertwined that one cant regulate the formerwithout regulating the latter; also Congress can usually regulate the

instrumentalities of interstate commerce even on an intrastate scaleC.

The Stream of Commerce Line:Congress can regulate intrastate activitiesthat are part of the current of commerce between different states (Stafford v.Wallace)

III.

The Social Regulation CasesA.

The Early Cases:Congress may use its enumerated power to ban interstateshipment, regardless whether its motive is to regulate immoral activity,Champion v. Ames(ban on interstate shipment of lottery tickets)


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B.

Hammer v. Dagenhart(1918): child labor case; Court holds that Congressmay notban interstate shipment when the regulation of interstate commerceis simply a pretext to make life difficult for a business it cant regulate directly,and where the goods shipped interstate are not themselves harmful; had todistinguish from Championb/c the goods themselves were no different

IV.

The Challenge to the New DealA.

The Justices --note that some of these cases are not5-4. (e.g. Schechter)1. The Conservative Four Horsemen: Sutherland, McReynolds,Butler, and

Van Devanter2.

The Liberals: Chief Justice Charles Evans Hughes and Justices Cardozo,Stone, and Brandeis

3. The Swing Vote: Owen RobertsB.

A.L.A. Schechter Poultry Corp. v. United States(1935): Court strikes downthe National Industrial Recovery Act, which allowed boards of privatebusinesses to develop "codes of fair competition," which were then approved by

the President. codes were held unconstitutional as applied to wages and hours in the

chicken slaughterhouses of NYC, based on their indirect effect oninterstate commerce; outside limits of Commerce power

Cardozo, J., concurring: "[There] is a view of causation that wouldobliterate the distinction between what is national and what is local in theactivities of commerce. Motion at the outer rim is communicatedperceptibly, though minutely, to recording instruments at the center. Asociety such as ours 'is an elastic medium which transmits all tremorsthroughout its territory: the only question is of their size.'...The law is notindifferent to considerations of degree...To find immediacy or directness

here is to find it almost everywhere." Carter v. Carter Coal Co.(1936):Court strikes down the Bituminous

Coal Conservation Act of 1935, which permitted local coal boards to setminimum prices and administer collective bargaining agreements thatwould bind all mine operators in the area. The Court again relies on anindirect effectrationale.

The Social SecurityAct was poised to be struck down next and that wasthe centerpiece of the New Deal; Court was striking down all DueProcess and Commerce Clause expansions as beyond the power ofCongress


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The New Deal Crisis and the Revolution of1937

I.

The Court-Packing Plan followed FDR's landslide reelection and a hugedemocratic majority in Congress; claimed public mandate for New Deal and FDRwas determined to get it past the economically-conservative SCT

The Proposal:Add one additional justice for each justice over seventy years old,up to a total of 15 justices; was supposedly to help the older justices keep upwith their workload; by the time of the Fireside Chat, President accused SCT ofstanding in the way of recovery, of being out of touch with reality, needed newblood on SCT; FDR uses dissents saying these rulings were not mandated bythe Constitution, says Court is being political

Alternatives Proposed in Congress:Amend the Constitution to allow Congressto overrule Supreme Court decisions by supermajority vote

The Switch in Time:While the plan is under consideration in the Senate,Justice Owen Roberts defects from the conservative majority and votes touphold major new deal legislation in West Coast Hotel v. ParrishandNLRB v.

Jones & Laughlin Aftermath:The Four Horsemen (Sutherland, McReynolds, Butler, & Van

Devanter) retire shortly thereafter, producing solid pro-New Deal majorities inWickardand Darby

II.

The Court backs down-- evidence that vote on West Coast Hotelwas before court-packing plan revealed; these decisions are more realist and less formalist than theLochnerpath, more concerned with the actual effects on the economy than on

formal distinctionsA.

Federalism NLRB v. Jones & Laughlin Steel Corp.(1937) [P334]:1.

Court upholds protection of labor organization; cites the "intimaterelation" b/t manufacturing and interstate commerce; abandons thatdistinction, effectively overruling E.C. Knight

2. abandons direct/indirect distinction in favor of substantial effects testand notes massive national economic impact fromJones & Laughlinalone

3. create national/local distinction rather than interstate/intrastatedistinction

4. "the power to regulate commerce is the power to enact 'all appropriatelegislation' for 'its protection and advancement'; to adopt measures 'to

promote its growth and insure its safety'; to 'foster, protect, control andrestrain'. That power is plenary and may be exerted to protect interstatecommerce 'no matter what the source of the dangers which threaten it'"(Jones & Laughlin, majority opinion [P339])

B.

Due Process West Coast Hotel Co. v. Parrish(1937)[P326]:1. Court overrulesAdkins v. Childrens Hospitaland upholds a minimum

wage


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2.

uses dissents from Lochner, says regulating the economy is a legitimategov't function

3.

questions the very idea of freedom of contract Note: this is not a complete turnaround, merely choosingNebbiaover

Lochner; in some areas, the tide shifted before 1937

C.

Contracts Clause Home Bldg. & Loan Assn v. Blaisdell(1934):Courtapplies deferential review to state law changing rights of mortgage holders toforeclose From 1937 to 1995, SCT doesn't overrule a singe statute as beyond

Congress' Commerce powerIII.

The Elastic Commerce ClauseA.

Wickard v. Filburn(1942)[P344]was a unanimous decision b/c FourHorsemen already retired1. Substitutes aggregation principle consider economic effect of whole

regulated class of activity ("taken together with many others similarly

situated, is far from trivial"), not individual instance for "substantialeconomic effect" of acta. substantial enlargement of commerce powerb.

Test says, is it commercial/economic activity?, if so, aggregate itand defer to Congress

2.

"marketing quotas not only embrace all that my be sold without penaltybut also what may be consumed on the premises...penalties do notdepend upon whether any part of the wheat is sold or intended to be sold"

3. Court relies on the non-Lochner track of cases that expanded Commercepower (e.g. Shreveport Rate Cases)

4. "questions of federal power cannot be decided simply by finding the

activity in question to be 'production' nor can consideration of itseconomic effects be foreclosed by calling them 'indirect'" [P348]

B.

United States v. Darby, (1941): Two aspects of the statute:1.

prohibits interstate shipment of goods made by workers not complyingwith wage & hour requirements

2. imposes wage & hour requirements directly on workers engaged inmaking goods for interstate commerce

3. Interstate Shipment: Court overrules Hammer v. Dagenhart; returns toChampion v. Ames

4. Wage & Hour Regulation: Two alternative grounds:

a.

regulate wage & hours as necessary & proper means to facilitateinterstate shipment ban; andb.

wage & hours themselves have substantial effect on interstatecommerce

C.

Further Developments1.

Maryland v. Wirtz(1968): Congress amended the Fair Labor StandardsAct to directly regulate wages and hours for every employee "of anenterprise engaged in commerce;" Court upheld under Wickard


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2.

Perez v. United States(1971):Court upholds federal criminal statuteprohibiting loan-sharking; Court emphasizes findings that this class ofactivity in the aggregate has effects on interstate commerce

3.

Hodel v. Virginia Surface Mining Ass'n(1981):Court upholds federalregulation of strip mines; question is whether Congress could rationally

have found an effect on commerce4.

The 1964 Civil Rights Act Cases:In Heart of Atlanta Motel v. UnitedStates (1964) and Katzenbach v. McClung (1964), the Court upholdsCongresss Commerce Clause authority to ban private race discriminationin public accommodations (e.g. hotels and BBQ joints); Court rejectspretext arguments that the purpose is to achieve social justice, notregulate the national economy

Rationality Review and the Double Standard

I.

Types of Scrutiny [P379]A.

Rational Basis: the law will be upheld if it is rationally related to a legitimatestate interest; or, is thelegislature crazy to pass this? If not, defer to it (e.g. Lee Optical)

B.

Intermediate: the law will be upheld if it is closely related to an importantstate interest (e.g. genderdiscrimination; undue burden in Planned Parenthood v. Casey)

C.

Strict Scrutiny: the law will be upheld only if it is narrowly-tailored to acompelling state interest; or, isthere a less restrictive alternative to this law? If so, strike it down (e.g. laws

constraining free speech)II.

Rationality ReviewA.

A Typical Statement: On rational-basis review, a classification in astatute...comes to us bearing a strong presumption of validity and thoseattacking the rationality of the legislative classification have the burden "tonegative every conceivable basis which might support it." Moreover, becausewe never require a legislature to articulate its reasons for enacting a statute, itis entirely irrelevant for constitutional purposes whether the conceived reasonfor the challenged distinction actually motivated the legislature. Thus, theabsence of "legislative facts" explaining the distinction "on the record," has nosignificance in rational-basis analysis...a legislative choice is not subject to

courtroom fact-finding and may be based on rational speculation unsupportedby evidence or empirical data. "Only by faithful adherence to this guidingprinciple of judicial review of legislation is it possible to preserve to thelegislative branch its rightful independence and its ability to function." FCC v.Beach Communications, Inc.(1993)

B.

Characteristics (see, e.g., Williamson v. Lee Optical(1955)[P357])1. Presumption in Favor of Legislative Fact-finding


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2. Hypothetical Rationales and Facts acceptable as justification3. No Scrutiny at All?

See, e.g., Ferguson v. Skrupa, 372 U.S. 726 (1963): the Court says it hasabandoned the use of the vague contours of the Due Process Clause tonullify laws which a majority of the Court believed to be economically

unwise" In Lee Optical, the Court invented potential reasons why a statute in favor

of a lobbying group might be within the police power of the state; ignoredeconomic substantive Due Process"the day is gone when this Court used the Due Process Clause of the 14thAmendment to strike down state laws, regulatory of business andindustrial conditions, because they might be unwise, improvident, or outof harmony with a particular school of thought" [P358]

Economic substantive due process standard is now "plausibly related" topublic interest, lower than rational basis

III.

The Double Standard (from Ernie's "Federalism and the Double Standard"[P373]) footnote four's general deference to legislative pronouncements; rationalbasis as a test the gov't usually can't fail

A.

What We Dont Enforce Anymore (at least pre-1995):1.

economic substantive due process2.

other economic rights (Contracts Clause, much of Takings Clause)3.

limits on federal power4. limits on legislative delegation

B.

What We DoEnforce:1. racial and gender equality2. personal right to privacy

3.

free speech4.

anti-establishment of religion5.

separation of powers6.

limits on statepower (Dormant Commerce Clause)C.

Three Central Questions about Court's Double Standard1. Has the Court overreacted?2. What rights are in and what rights are out?3. If we can define this double standard, can we alsojustifyit?

D.

The Carolene Products Footnote [P355] There may be narrower scope for operation of the presumption of

constitutionality when legislation appears on its face to be within aspecific prohibition of the ConstitutionIt is unnecessary to consider nowwhether legislation which restricts those political processes which canordinarily be expected to bring about repeal of undesirable legislation, isto be subjected to more exacting judicial scrutiny...than are most othertypes of legislation...Nor need we enquire...whether prejudice againstdiscrete and insular minorities may be a special condition, which tendsseriously to curtail the operation of those political processes ordinarily to


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be relied upon to protect minorities, and which may call for acorrespondingly more searching judicial inquiry

closest we have to general criteria about what's fundamental under dueprocess and what classifications are suspect under equal protection

Start here as criteria to decide if something should be fundamental; with

Due Process, it's tradition (Griswold), then Roe build on that as right oncontrol over reproductive life

three categories where judicial review should be more strict:1.

specific constitutional prohibitions, particularly those in the Bill ofRights

2.

restrictions on the political process itself such as limits on freespeech or the right to vote

3.

prejudice against discrete and insular minoritiesProfessor Ely and Representation Reinforcement:

1. Based on Footnote 4, Ely argues that the Constitution is basically

proceduralin character, and that Courts should not interpret it tomandate particular value choices.2. Called the "antitrust theory" of constitutional law, JR should be used here

to break up political monopolies (structural impediments to the group'ssuccess); judicial intervention into the political process is appropriatewhen the market is malfunctioning and undeserving of trust [P372]1.

when government action restricts or undermines the operation ofthe ordinary political process (e.g. restrictions on political speech)

2. when particular groups are excluded from ordinary opportunities toform coalitions and be heard in the political process on account ofentrenched prejudice or some other inherent disadvantage (e.g.

racial discrimination)3.

Judicial intervention is necessary to ensure that the interests of those withpolitical power are tied to the interests of those without power [P366]

4.

Judges should focus on policing the mechanisms by which the systemseeks to ensure that our elected representatives will actually represent

Young's article says the Court's decisions often fail to adhere to the divide thatEly's theory suggests; not a simple division b/t economic and "other"regulation; not a distinction b/t structure and individual rights, three ways tothink about it (notes):

1. What are Courts good at thinking about? What types of problems are

they good at analyzing?2.

Who else would protect the rights if not the Courts? (political safeguardswork? Discrete and insular minority being singled out?)

3.

Which rights are more appealing? Economic rights are prettyfundamental to our lives; should the Courts be deciding which to enforceand which not to? Asserting the power not to enforce something is anassertion of judicial activism


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Plessy to Brown I

I.

Three Big-Picture Issues in the School Desegregation Cases [P382]A.

Principle:Are there neutral principles that justify a court putting an end to

racial segregation? (Wechsler)B.

Efficacy:Canjudicial review make a difference concerning such a pervasivesocial problem? (Rosenberg)

C.

Interpretive Supremacy:Which governmental actors interpretation controlsin case of conflict? (Cooper)

II.

The Pre-BrownLawA.

Plessy v. Ferguson(1896)[P383]1. Court upholds separate but equal rule in public accommodations; uses

means/ends test, say it's legitimate b/c of "public welfare" and within thepolice power of states

2. Narrow reading of 13th and 14th amendments: they're to enforce equality

before the law, but not to enforce social equality or force comingling3.

Say segregation does not necessarily imply inferiority4.

Formalist decision, allow a lot of discretion to state legislaturesTwo prophetic observations:

1. "What can more certainly arouse race hate...than state enactmentswhich...proceed on the ground that colored citizens are so inferior anddegraded that they cannot be allowed to sit in public coaches occupied bywhite citizens?" Harlan's dissent -- focused more on realities and intent ofamendments

2. "[The defendant's argument] assumes that social prejudices may be

overcome by legislation, and that equal rights cannot be secured to thenegro except by an enforced commingling of the two races. We cannotaccept this propositionIf one race be inferior to the other socially, theConstitution of the United States cannot put them upon the same plane."(Brown, J., for the Court)

B.

Two Central Questions1.What is the harm of segregation? Is it simply that the State is treating

people differently on account of their race, or that it generates damagingresults for black people? Does it inherently stigmatize? To what extentdoes society expect people to pull themselves up by their own bootstraps?

2.

What is the institutional capacity of courts to effect massive social change?

Pay attention to whether the Court can simply order segregation to end,or whether it must depend on a shift in the political winds before itsorders have any real effect on fundamental social interactions

C.

Browns Precursors: The Big 12 Tetralogy [P392]1.

Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938):Court strikes downMissouris law school system, which required segregated education forwhites and blacks; all-white University of Missouri provided a law school,


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while the black university, Lincoln University, did not; Missouri lawprovided for sending black residents to law schools in neighboring statesand paying their tuition there; SCT rules that the State must provide equalfacilities withinthe state

2.

Sipuel v. Board of Regents, 332 U.S. 631 (1948):relying on Gaines, SCT

orders the University of Oklahoma law school to admit a black studentwho had been excluded solely on the basis of race

3.

Sweatt v. Painter, 339 U.S. 629 (1950):Court requires the UT law school toadmit a black student, because the black law school was not in fact equal;Court takes into account intangible factorslike reputation andnetworking -- begins raising questions about what constitutes equality ineducation

argued by Thurgood Marshall and NAACP; started with legaleducation as the foundation of social and legal equality

4.

McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950): Court

strikes down program segregating a black student within the white school(grad school of education); he was forced to sit in a special seat, prohibitedfrom dining with other students in the cafeteria, and had to sit at a specialtable in the library; Court held that these restrictions "[impaired] and[inhibited] his ability to study, to engage in discussion and exchange viewswith other students, and, in general, to learn his profession" -- socialexchange benefits of the school experience -- after this, separate but equalcan't work

Also argued by Marshall and NAACPIII.

Brown v. Board of Education of Topeka (Brown I) (1954)1. NAACP starts with schools b/c it's the hardest place to maintain equality

and will do the most good for clients2.

SCT looks to the effects of segregation on public education; "must beavailable to all on equal terms" [P396]; "separate educational facilities areinherently unequalsuch segregation is a denial of the equal protection ofthe laws"

3. Hard to rely on intent of framers of amendment b/c of the changingimportance of public education from the 1860s to the 1950s; have somepsychological findings that help support the opinion

A.

Whats the Rationale?Some possibilities:1. Education is too important to permit segregation, maybe it's special

2.

Segregated education hurts the educational development of blackchildren3.

Segregation violates freedom of association (but, what about forcingassociation on whites?)

4.

Segregation stigmatizes black people, "generates a feeling ofinferioritythe impact is greater when it has the sanction of the law"; afterall, 14th amendment was intended to get the blacks out of the bad


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social/political position they were in, maybe it doesn't have to be neutralb/c of that intent

B.

Brown and Neutral Principles:1. Neutrality doesn't mean the C can't take sides, it means the judge has to

reason from something other than his own morality, no matter which side

he wants to win2. What makes judging different from politics is that:

a. it must be genuinely principled, resting with respect to every stepthat is involved in reaching judgment on analysis and reasons quitetranscending the immediate result. Wechsler [P401]

b.

Cannot function as a "naked power organ", but must be courts of lawc. Must reach judgment on analysis and reasons that transcend the

immediate result3. Note -- Charles Black wrote more realistic concerns for basis of Brown

decision [P407}

C.

What Does Brown Mean?At least two possibilities:1. State-enforced segregation is illegal (only invalidate that law)2. Educational equality can be achieved only if blacks and whites go to

school together (harder, seems to be what the Court intends)D.

Brown's Federal Cousin -- Bolling v. Sharpe (1954): Court uses the 5thAmendments Due Process Clause to extend Brown to federal segregation in theDistrict of Columbia1. Note that this is an instance of reverse incorporation of the 14th

Amendments Equal Protection Clause to bind the federal government(bind in the same way as states)

2. problem of anachronism and textual repetition; 14th amendment doesn't

apply to federal gov't, but only to states; had to make it apply to feds orwould have angered states

Brown II& Cooper:The Efficacy and Authorityof Judicial Review

I.

Brown v. Board of Education of Topeka (Brown II), 349 U.S. 294 (1955)A.

The Holding on Remedy Remedies are to be guided by equitable principles

Equity courts tended to be more flexible, tailor solutions toindividual school districts to achieve fairness in each individualsituation

Equity courts also specialized in "prospective" relief, relief for thefuture by requiring people to do things, declaring rights and issuinginjunctions (not after-the-fact like money damages)


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The Court will tolerate some delay b/c of administrative difficulty andindividual circumstances

JR being used as a sword rather than a shield to prosecution; using rightsto attack gov't practice

District courts become managers of school districts; how far should they

take it? Some discrimination was/is from residential patternsB.

The Results of Courts Acting Alone: Between 1956 and 1964, the results ofjudicial orders varies by region:

Border States: The number of black children in school with whites rose15.2% throughout the border, and 28.1% if we exclude D.C. (which was lesssegregated to start with).

Deep South: Ten years after Brown, only 1.2% are attending school withwhites. Leaving out Texas and Tennessee, the figure drops to less than0.5%.

C.

Criticisms of Brown II:Some possibilities:

1. If segregation is unconstitutional, then anycontinued segregation isintolerable2. Brown IIencouraged white resistance by failing to demand an immediateremedy

Southern Manifesto says SCT got it wrong, resist decision3. Brown II overstated the administrative difficulties of desegregation4. The Court should never have referred the task to the lower courts

II.

The Authoritativeness of Supreme Court DecisionsA.

Cooper v. Aaron(1958): unanimous decision1. Court rejects the Governor of Arkansass claim that he is not bound by the

Courts prior ruling in Brown; Court says that the interpretation of the

Fourteenth Amendment enunciated by this Court in the Brown case is thesupreme law of the land, and [the Supremacy Clause] of the Constitutionmakes it of binding effect on the States

2.

Court says order should not be maintained by denying black childrentheir constitutional rights

3. Court relies on Marbury to say the Courts say what the law is and thattheir decisions are binding on the States and state actors; they mustexercise their authority within the bounds of the C

B.

Two Questions:1. Does the effect of the Courts judgment in a constitutional case extend

beyond the parties to the litigation?2.

To what extent can other actors in the other branches of governmentimplement their own interpretations of the Constitution when theydisagree with the Court?

C.

Three Positions Judicial Supremacy: The judiciarys interpretation of the constitution

becomes obligatory and conclusive upon all the departments of thefederal government and upon the whole people, so far as their rights and


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duties are derived from, or affected by that constitution. Joseph Story,Commentaries on the Constitution of the United States (does that meaneven judges can't overrule precedents?)

Legislative Supremacy: Congress has the last word on the constitutionalityof its enactments (fox in charge of henhouse, not so great a check)

Departmentalism: Each department of the Government has the authorityto construe the Constitution for itself in the course of performing itsconstitutionally-appointed functions (but the Court usually has the lastword)

Presidents have other ways of challenging the SCT's "last word"; e.g.Jefferson pardoned violators of the Sedition Act, Rooseveltthreatened court-packing and kept encouraging economicregulation; Jackson vetoed the Nat'l Bank; Lincoln opposed DredScottwith political pressure

III.

The Efficacy of Supreme Court Decisions (Ros

con law young 08

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