Professional Documents
Culture Documents
a) Historical background
i) Articles of Confederation
(1) Approved 1781 by all 13 states
(2) Written like a treaty between sovereign states
(3) Unicameral, 9/13 votes passes laws that only affect states, not individuals within
states
(4) Congress sole power of war, peace, foreign relations
(5) Problems
(a) Too weak federal government didnt have enough power
(b) what happens if state disobeys congress? Ie, paying taxes.
(c) States start developing relations with other countries
(d) Economic state of nation terrible no power over commerce
(i) Each state had own currency, bankruptcy laws
(ii) Trade wards
(iii) Imposed tariffs on interstate trade
(iv) Lenders wary of doing business with new country
ii) Constitutional Convention
(1) Controversial tossing of Articles of Confederation radical solution to problem would
have had to get unanimous approval to amend Articles anyway
(a) Second Great Illegality Constitution legally inconsistent with Articles
provision for amendments
(b) First Great Illegality armed uprising against legitimate English government
couldnt change it by legal means, so resorted to illegal rebellion
(2) Plenty of people thought Articles were fine beginning of states-rights v. federalism
(a) Federalists pro-Constitution
(b) Anti-Federalists anti-Constitution theme: centralized government
dangerous to individual liberty called for Bill of Rights
b) Text
i) Preamble no legal effect, but noted for its contrast to language of Articles
(1) we the people, not we the states
ii) 7 articles
(1) I legislative
(2) II executive
(3) III judicial
(4) IV relations between states
(5) V how to amend constitution
(6) VI Supremacy Clause
(7) VII ratification
iii) Is the US actually a democracy? Where is this visible in the text of the Constitution?
(1) Democracy = rule by majority this is not provided for
(2) All sorts of qualifications for voting, running for office, etc.
(3) We have amended the Constitution to make it more democratic
iv) How important should the text of the Constitution be when times have changed and the
size of the nation has grown enormously?
(1) Could language be adjusted?
(2) Should interpretation just be adjusted, made more flexible?
c) Judicial Review
i) Chief Justice what does he do?
(1) Approves appointment of court administrative officials
(2) Presides at impeachment trials
(3) Real role in tradition, not in the law
(a) Rule of Four four justices vote yes and a certiorari case will be heard
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(b) Rule of Four not a rule of law can be changed
(c) Chief Justice also casts last vote in deciding cases can vote strategically
(i) If part of majority, he decides who writes opinion
(ii) If dissenting, most senior justice of majority will write opinion
(iii) Different justices write in varying degrees of broadness/narrowness and
this is what will make the law
iv) Later, Supreme Court decides that state laws may also be overturned.
(1) Federalism issue how much can federal government meddle in state affairs?
(2) Uniform rules throughout country desireable
v) Canon of Statutory Construction:
(1) Court wants to interpret statutes to uphold their constitutionality
(2) Only exercise extreme countermajoritartian power when absolutely necessary
vi) Reality: many rules deemed unconstitutional are still enforced all over the country
(1) Ie, pledge of allegiance in schools
(2) Who will sue in protest?
g) Congressional Limits
i) Constitution, expressly and impliedly, presumes Congress will supply most of design and
detail of the federal judiciary
(1) Congress may establish (or un-establish) lower federal courts
(2) May also set jurisdiction for these courts, including concurrent jurisdiction with
Supreme Court
(3) May change appellate jurisdictions of federal courts, but may not restrict or enlarge the
original jurisdiction of federal courts only regulate procedural matters (but that could
include when and if the Supreme Court meets)!
ii) Congress may NOT meddle with state court systems
iii) Leading case construing exceptions power: Ex Parte McCardle
(1) Supreme Court bound by the law, regardless of whether or not the law was politically
calculated
(a) Judicial Act of 1867 allows appeal of habeas corpus decision to Supreme
Court
(b) McCardle appeals accordingly
(c) But: Congress has power to restrict Supreme Court appellate jurisdiction, and
passes Act in 1868 to repeal part of 1867 act that allows appeal
(d) Case dismissed for lack of jurisdiction
(2) Evidence of traditional interpretation of exceptions clause: anything goes; plenary
power
ii) Standing
(1) Standing also not mentioned in constitution requires that litigant have a stake in the
outcome of the case
(2) 20th century concept requiring 3 things which plaintiff must bear burden of proof:
(a) Injury what constitutes injury? No set test, but must consider:
(i) Perceptible and recognized harm
(ii) Invasion of any right recognized under Constitution, statutes, or common
law as long as it is not too abstract
(iii) Present or threatened injury
(iv) Case example of no injury: Lujan v. Defenders of Wildlife
(b) Causation what illegal act has caused injury?
(i) Injury must be fairly tracable and not conjecture
(ii) Odds of satisfying standing decrease as causation and claimed harm
together become less concrete
(c) Redressability how could a favorable decision alleviate the injury?
(i) Relief must not be dependent on absent third party
(ii) Nature of underlying injury must be clearly identified
(3) Is the plaintiff the proper party to bring an action?
(a) Representational standing
Bill Funk Constitutional Law Outline Fall 2005 6
(i) An organization on behalf of a party
(ii) Lawsuit must be consistent with organizations purpose
(iii) Member has standing as an individual
(iv) No damages may be awarded; just declaratory relief (no requirement of
participation of individual members in the lawsuit)
(4) Very difficult to have standing to bring suit against the government or an officer of that
government for unconstitutional behavior
(a) Actual injury requirement
(b) Generalized grievances of many persons does not equate injury
(i) Grievances are political issues to be brought up in a political forum
(ii) However, grievances are not generalized merely because they are widely
shared. Widely shared injury may be legitimate
(iii) Rule against g.g. is triggered only if plaintiffs sole claim of injury is a share
of a harm suffered by all citizens when the government does not act legally
(iv) Exception taxpayer may challenge taxpaying statutes
(c) Government officials are subentities of larger government. This larger
government must police itself
(5) Corporations are legal persons with standing
(6) Standing is a fundamental legal philosophy that the court can interpret in different
ways
(a) Conservative, narrow:
(i) Court is minimalist institution, because they are non-democratic
(ii) It is the job of the president to enforce laws
(b) Liberal, broad
(i) Many things qualify as injury
(ii) Including being made to feel like an outsider in society
(7) Who has standing to sue when laws declared unconstitutional are still enforced?
Standing is a real limitation to many actions.
3) Congressional Power
a) Three major powers over interstate commerce, taxation and spending, and foreign affairs
i) 17 separate paragraphs total, in Art. I Sec. 8
b) The major and more frequently examined grants of Congressional authority
c) Prelude the Necessary and Proper Clause because every exercise of national authority
must be linked to a constitutionally granted power
(f) Real issue of Lopez: court decides this case based on its potential to be
applied as precedent to future cases do not want Commerce Clause
expanded any further than this: denial of plenary police powers
(g) Why this legislation at all?
(i) passed because constituents want uniform legislation throughout the states
(ii) Could not have suspected that Commerce Clause wasnt the answer this
time, like it was for other public welfare laws
(iii) Should have written law (and later did) to read that possessing a gun that
has traveled in interstate commerce in a school zone is illegal.
(h) Should the court even be able to question the rationale behind a law like this?
(i) Concern is not the merits of the legislation, but its constitutionality
i) US v. Nixon
(1) Interbranch controversy can the president legally fail to respond to a subpoena?
Can parties within the executive branch sue another executive?
(2) Does separation of powers preclude judicial review? And does executive privilege
supercede a subpoena?
(3) Main idea: Executive privilege does exist, and it is implicit in the Constitution
(a) Privilege applies to state secrets (foreign affairs, national security, etc.)
(b) Also, to deliberative process privilege name case for this reason
(i) The need for advice provided to superior executives to be candid, honest,
with no fear of statements being made public
(4) Implied, inferred constitutional privilege derived from duty of president to see that
laws are executed
(5) What can overcome this privilege?
(a) Needs of criminal process the interest of the prosecutor
(b) Deliberate privilege could be harmed, but it is not often that candor required of
advisors will be headed off by the threat of a criminal proceeding in the future
(c) Materials to be examined in camera, in secret chambers. Only relevant
information has potential to be made public.
(6) Balancing test
(a) Military or diplomatic secrets or general interest in confidentiality?
(b) Pending criminal trial or a civil action?
(7) The idea that a constitutional privilege of immunity can be trumped by a criminal
proceeding is a little ridiculous considering that the common law immunities of
attorney/client relationships or priest/confessor relationships are still standing
(8) Privilege issue comes up all the time when Congress tries to get information from the
executive branch. Is privilege stronger against the legislative branch than the judicial
branch? Question never really answered.f
(a) Congress has means of enforcing requests for information: ie, civil contempt
(i) Lock in Congressional jail for refusal to testify before Congress
(ii) Different than criminal contempt can get out of the jail just for complying
with request
iii) Privilege from civil suits not related to official actions : Clinton v. Jones
(1) Sexual harassment claim
(2) Does not argue pure immunity from suit President immune from suits arising out of
duties as president Nixon v. Fitzgerald. To be held personally liable would:
(a) Interfere with ability to do job (distraction of suit)
(b) Ability to act swiftly and with confidence in office because of fear of later suit
(3) Clinton just wants to delay suit until after office -- suit is a distraction from official
presidential duties
(a) 3-4 years wait is deemed unacceptable
(b) Prejudice to plaintiff loss of evidence, witnesses becomes more likely
(4) no man is above the law President to be treated like anyone else
(a) However, special accommodations may be made for his needs and schedule
(5) With proper management, case highly unlikely to occupy a great deal of time
Bill Funk Constitutional Law Outline Fall 2005 18
(a) Did court really do a good job managing the case? No. Maybe this power
should not be placed in the hands of a mere district court.
(b) Real world funding of suit came from Clintons political enemies. Cant
ignore this truth.
(c) Creation of a constitutional crisis leave separation of powers issues to the
hands of district court judges?
(6) Both a functional and formalist opinion
(a) Functionalist because similar suits against presidents were not problems in the
past
(b) formalist because of designation of president as an ordinary citizen
h) Two basic kinds of dormant commerce clause cases, each with its own test:
i) A law that facially discriminates
(1) On its face against out-of-staters
(a) Case example: Philadelphia v. NJ
(b) Balancing test: is law a protectionist measure, or enacted for the benefit of
legitimate local concerns?
(i) The goal here is not protectionism but a legitimate interest; however, it is
being achieved by illegitimate means.
(ii) Needs to treat NJ and other states alike
(iii) Law of this nature isnt necessary to meet goals.
1. Strict scrutiny discriminatory law is unconstitutional unless there is
no other way to meet state ends.
2. must employ less discriminatory means if possible
3. only one case has ever passed strict scrutiny test Maine Bait Fish
Case
(2) Market Participant Doctrine
(a) When government acts not as a regulator, but as a participant, it can pick and
choose who it does business with and constitutionally exclude out-of-staters
a justification of conduct that would otherwise violate dormant commerce
clause
(b) This is because private market entities can also discriminate all they want
(c) Almost the only arena where the government gets a free pass to act as a
private individual
(d) Applies only in very narrow circumstances: when government is a pure
participator, and not a regulator at all
(e) Case example: South Central Timber Co. v. Wunnike