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Constitutional Law Outline

Frederick Schauer - Spring 2015 Constitutional Interpretation - Four positions 1. Original Intent Originalism: The word means what it was intended to mean in 1777. a) Less common now for three reasons: i) it is never quiet certain at what level of generality we should understand that intent (whose intent? Drafters, ratifying states? the embarrassment problem - original intent originalism turns out to generate some number of outcomes that 200 years after the fact the population is unwilling to accept. b) Similar: Public Meaning Originalists: what did the words mean at the time? 2. Textualist: look at the text and only the text so help you God ii)

a) Scalia: people vote for different reasons, the only thing they agreed upon was the actual text. In statutory as well as in constitutional interpretation he is unwilling to look to actual intent. 3. Living Constitutionalism: the words of the constitution should be interpreted in light of modern realities. (Marshall’s opinion in McCulloch) a) View assisted by the fact that the amenability of the Constitution is practically impossible. Therefore, it must be interpreted flexibly in light of changing values. 4. Contemporary Public Meaning: what the words mean now. 5. Other constitutional points: a) Formalism v. Functionalism: i) Formalism: take the words and structure as it is written seriously even if it generates a bad ii)

result. Functionalism: interpret accurately according to the function that some legal provision is

designed to serve. b) Enforcement: The sanctity of the constitution was upheld because the federal and state troops obeyed the President’s orders in Cooper v. Aaron. c) Counter-majoritarian difficulty: when the court declares an act of Congress unconstitutional, 5 9 people are overruling a decision of an elected party. d) State as a Laboratory for Democracy: try novel social and economic experiments without the risk to the rest of the country. Brandies. Judicial Review 1. Gives the Court power to declare an act of a coordinate branch of the government unconstitutional. 2. Marbury v. Madison (1803)(p.1) a) Facts: justice of the peace appointee not appointed due to change in presidency. b) Takeaway: formed the basis for judicial review under Article III of the Constitution. i)

ii)

(1) Held that the judiciary can tell the executive branch what to do. (2) The constitution is the higher law and federal legislation that does not comport is not law. (3) It is within the power of the US judiciary to declare acts of Congress unconstitutional because: “it is emphatically the province and duty to the judicial department to say what the law is.” J. Marshall making a statement about SCOTUS’ power, but case dismissed for lack of SMJ. (1) Marshall had to deny P relief politically. Jefferson administration wouldn’t have complied with a court order to deliver and could seek impeachment of justices.

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Judicial Supremacy 1. Constitution binds the states a) Article III, Section 2: The judicial power shall extend to all cases, in law and equity, arising under the constitution. b) Article VI, Section 2: The Supremacy Clause makes clear that the Constitution shall be the supreme law of the land (it’s superior to state law) and judges in every state shall be bound thereby. 2. Supreme Court can declare acts of states unconstitutional a) Martin v. Hunter’s Lessee (1816)(p. 24) i) ii)

Facts: VA land dispute (who did/did not forfeit land during the revolution). VA CoA claimed SCOTUS lacked authority to review their decision. Rule: The Supreme Court can review state court decisions (1) The constitution presumes SCOTUS’ authority to review state court decisions. If Congress did not establish lower federal courts, SCOTUS could not hear any cases at all unless it could review state court rulings. (2) Appellate jurisdiction is given by the constitution to the Supreme Court, in all cases within “the judicial power of the United States” where it has no original jurisdiction. Article III,

Section 2, clause 2. b) Argument for federal review of act of state: i) Allowing federal review produces uniformity and prevents multiplicity c) Argument against Supreme Court Review of acts of states i) ii)

Counter-Majoritarian Textualist argument: nothing in the Constitution gives the Supreme Court explicit power to review acts of states

iii) Federalism question: nothing that unity must apply in all federal systems. 3. Binding other branches of federal government a) Cooper v. Aaron - after Brown, AK governor doesn’t want to enforce desegregation i) Rule: The Supreme Court made it clear that a state Governor was to be bound by the Supreme Court’s interpretation of the constitution and the Supreme Court would not be bound by the governor’s interpretation. ii)

Three positions: (1) Judicial Supremacy (Cooper v. Aaron position) (a) Important to have uniformity in constitutional interpretation (one party needs to make decisions for everyone in order to avoid dis-uniformity). (b) Constitutional law is law as it has been interpreted by the Supreme Court. Congress does something wrong by not following Supreme Court decisions. (2) Departmentalism - power of each branch of government to make constitutional decisions for their own purposes. (a) Believe in being able to interpret the constitution for themselves (b) Distinction between decisions that are directed personally to an official and decisions that purport to resolve an interpretative issue not directed at someone.

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(a) i.e. officials in AL who are not following order of AL SC (gay marriage) because order was not directed specifically at them are claiming departmentalism. One way of getting around this would require class action defendants - giving them notice and opportunity to be heard. (3) Popular Constitutionalism : The meaning of the constitution should be determined by public political determination and public political debate 4. Congressional regulation of judicial power: a) Article III, Section 2, Clause 2: power of Congress to make exceptions and regulations about SCOTUS appellate jurisdiction. i) Congress cannot use its regulatory power to determine outcomes in particular cases. United ii)

States v. Klein. BUT see Ex Parte McCardle which deprived the Supreme court of jurisdiction for a particular class of cases. NATURE & SCOPE OF NATIONAL POWERS

Necessary & Proper Clause (N&PC) 1. Constitution: a) Article I, §8: Enumerated powers of the federal government b) Article I, §8, clause 18: The Congress shall have Power…to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof. 2. Cases: a) Necessary and proper means: i) ii)

in 1818: “convenient, or useful, or essential.” (McCulloch v. Maryland); in 2010: “rationally related to the implementation of a constitutionally enumerated power.” (United States v. Comstock)

b) McCulloch v. Maryland (1819)(p. 68) - National bank created i) ii)

Held: Congress has the power under the N&PC to create a national bank (power to declare war: need to move money around for it). Rule: “Let the end be legitimate, let it be within the scope of the Constitution, 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 the Constitution are constitutional.”

iii) Expressed v. Implied Powers (penumbras - powers around those expressed in the constitution) - What connection must there be for the power to be implied? (1) There must be a direct connection between the power and the expressed power (2) Implied power must be reasonably related to the expressed power (3) Once you go beyond pure necessity, there are concerns as to that the limit really is? What is to stop the power from being anything that bears a connection to an expressed power?

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c) United States v. Comstock (2010)(p.73): i) Statute authorised DOJ to detain a mentally ill, sexually dangerous federal prisoner beyond the date the prisoner would otherwise be released. (1) Does congress have the authority to keep you in some sort of a facility either for your own benefit or benefit of others because of a mental illness which is unrelated to why you ii)

found yourself in fed prison in the first place? Rule: In determining whether the N&PC grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is

rationally related to the implementation of a constitutionally enumerated power. (1) If there are federal crimes, there is an implied power to create federal prisons. Therefore there is the power to do everything necessary to allow these to operate, including the power to keep people in prison. iii) Thomas, joined by Scalia, dissented (1) The N&PC does not provide Congress with authority to enact any law simply because it furthers other laws Congress has enacted in the exercise of its incidental authority (2) The Constitution gives states no power to decline the responsibility of custody. d) United States v. Kebodeaux (2013)(Supp. p.3): By regulation, a statute (SORNA) was retroactively applied to sex offenders who failed to register when they moves within states. i)

Held: The N&PC granted Congress the power to create federal crimes and regulate their punishment (power to create federal crimes comes from power to regulate military conduct and to impose punishment if those regulations are not followed) and SONRA could be applied to D because he was subject to similar fed requirements at the time of his release. i)

Dissent: SONRA is not directed at carrying to execution any of the federal powers enumerated in the constitution. Neither the Spending Clause, Commerce Clause, nor regulation of Land and Naval forces power is aimed at protecting societies from sex offenders. Further, the statute is limited to individuals already in the custody of the fed government.

National Commerce Power 1. Constitution: Article I, § 8, Clause 3: To regulate commerce with foreign nations, and among the several states, and with Indian Tribes 2. Summary of current law a) 3 Relevant determining factors: i) (1) Crossing state lines: power at its max when regulating anything that crosses state lines. ii) (2) Reach intrastate transaction that have a substantial affect on interstate commerce(Jones & Laughlin / Darby) iii) (3) Congress has greater power over so called instrumentalities of interstate commerce (Heart of Atlanta) b) Aggregation principle: Can take all activities into account to reach interstate commerce. (Wickard) c) Motives: Congress can regulate under the Commerce Clause for reason that are not business, commercial or economic. However, if Congress is using moral, social, or cultural reasons Congress has a higher burden to justify its actions. i) ii)

Suggestion commercial motive not required: Champion, Katzenback, Darby, Comstock Lack of commercial motivation a mark against federal power: Lopez, Morrison

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d) Put Lopez and Morrison together: Where the primary concern seems to be non-economic, there is no jurisdictional element, there are no strong findings and the connection is too attenuated, there are limits. 3. Pre-New Deal Rules / Evolution a) Gibbons v. Ogden (1824)(p.78) i) Facts: Steamboat rights to travel from NY to NJ. NYC licence v. Congress licence. (1) The people v. lettuce distinction: Under NY view, Congress has the power to regulate ii)

goods, but not people Rule: Congress’ power to regulate interstate commerce does not stop at the external boundary lines of a State. Congress’ power to regulate within its sphere is exclusive. (1) Article 1, §8 of the Constitution grants Congress the power to regulate commerce among several states, therefore it can regulate transportation between states.

(2) Commerce means more than traffic, it encompasses navigation. b) The Lottery Case (Champion v. Ames) (1903)(p.83) - Congress prohibited carriage of lottery tickets across state lines. i) Rule: As long as something business-related is going on between states, Congress can regulate it regardless of the absence of an economic motive. (1) This controversy was conservative regarding mechanism (clearly interstate) but expansive regarding motive (congress was regulating something they considered immoral, not based on economic motives but moral ones). c) Shreveport Case (Houston, East & West Texas Ry. v. United States) (1914)(p.85) i) ii)

Facts: TX practicing railroad price discrimination between trains solely within TX and those travelling between Louisiana and TX. Rule: Congress can regulate any intrastate transaction so long as it is in the interest of interstate commerce. (1) This controversy was conservative regarding motive (clearly commerce) but expansive regarding the mechanism (involved intrastate business). (2) Note that the court places some attention on the fact that RR are in the stream of commerce/instrumentalists of interstate commerce

d) Hammer v. Dagenhart (1918)(p.88) - The Child Labour Act prohibited the interstate transportation of goods produced with child labour. Overruled in Darby i) Held: Congress exceeded its commerce power in this case. The power of Commerce to regulate commerce does not include the power to regulate the production of goods intended for commerce. (1) Combining non-commercial motive (the Lottery Case) and interstate transactions that have some impact on interstate commerce (The Shreveport Case) is too attenuated 4. Modern era of the Commerce Clause: Post-New Deal a) NLRB v. Jones & Laughlin Steel Corp. (1937)(p.93): steel manufacture case i) ii)

The Court erased the distinction between manufacturing and commerce. Rule: Although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control. Page 5  of 54

b) United States v. Darby (1941)(p.94) i) FLSA established a min wage & max hrs for employees engaged in the production of goods for interstate commerce. Court overrules Hammer v. Dagenhart. ii) Rule: “The power of congress to regulate interstate commerce extends to the regulation of activities intrastate which have a substantial effect on the commerce.” (1) “Congress, following from its own conception of public policy…is free to exclude from the commerce articles whose use in the states for which they are destined may conceive to be injurious to the public health, morals, or welfare even though the state has not sought to regulate their use.” c) Wickard v. Filburn (1942)(p.99) i) Facts: farmer engaged in wholly intrastate activity of growing wheat for his own farm (1) Unlike Darby, this is intrastate in both input and output. ii) Rule: Aggregation principle: though one farmer’s growing own wheat rather than buying from the market would not substantially affect interstate commerce (i.e. the national wheat market), all the small famers growing their own wheat and seed could affect interstate commerce (1) Central feature of those saying that healthcare law could be regulated by the commerce clause: in the aggregate, those who don’t have healthcare affect the national economy d) Perez v. United States (1971)(p.102): local loan shark i) Held: Congress can regulate Perez’s loan shark business because of the possibility that he was part of a larger loan shark market, which would thereby affect interstate commerce. (1) Do not have to show individual loan sharks have an effect on interstate commerce, just

ii)

that he was a member of that class. (not a transparent business, hard to distinguish intrastate loan sharks from interstate loan sharks). Perez represents the outer limit as to what SCOTUS says Congress is allowed to do. It is as far as any of the case law goes, prior to some degree of retrenchment.

5. Civil Rights Act of 1964 a) Normal expectation would be to use § 5 of the 14th Amendment (additional grant of power to Congress) to pass legislation. § 5 gives Congress the power to deal with issues of racial discrimination, but does the Equal Protection Clause restrict the activities of private institutions? i) SCOTUS says the amendment only prohibits states from denying equal protection of the law (1) That is, cannot use section 5 to reach private institutions / individuals. Therefore nothing in the constitution that would prevent a private institution from discriminating on the basis of race. Congress has to get creative. b) Heart of Atlanta Motel, Inc. v. United States (1964)(p.103) i) Facts: The hotel exists at the intersection of two major interstate highways ii) Rule: The power of Congress to promote interstate commerce also includes the power to regulate local activities in both the States of origin and destination, which might have a substantial and harmful effect upon that commerce. (1) The relative unavailability of African Americans from having a place to stay in interstate travel will affect the number willing to travel interstate. c) Katzenback v. McClung (1964)(p.105) - Ollie’s BBQ discriminating, but purely local. i)

Rule: Aggregation principle (Wickard) gives reach

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6. Retrenchment a) In 1971, Congress had virtually no limits under the Commerce Clause i) Small exception, one man mine in Morton v. Bloom, judge determines Bloom was not intended to be reached by the mining legislation. But it is not a constitutional decision, it is an interpretive one. ii)

Otherwise anything goes. (1) “Where we find that legislators, in light of the facts and testimony before them, have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end.” - i.e., if Congress says it affects interstate commerce, then it affects interstate commerce. (Katzenback v. McClung)

b) The present: Begin to see, starting with Lopez, degree of judicial reaction against the anything goes idea. c) United States v. Lopez (1994) - no guns in school zone law found to be unconstitutional. i) Rule: Four factors in determining if Congress has the commerce power to pass an act. none are dispositive, all are relevant. (1) Trade matters: existence of a commercial trade/business (2) Expressed jurisdictional element: is there a requirement that the particular element be in interstate commerce and a requirement to prove it. specific statement linking to interstate commerce (a) Nothing in the guns in school act that said anything about a gun in school affecting interstate commerce (3) Have there been explicit findings on this issue by Congress? Congress actually has to make them, no presumption as before. (4) Court will engage in own determination of the effects the activity has on interstate commerce. d) United States v. Morrison (2000)(p. 108) - Violence against women act provided federal civil remedy for victims of gender motivated violence. i) held the Act was not a constitutional exercise of Congress’ commerce power because it didn’t regulate an activity that substantially affected interstate commerce. (1) SCOTUS further defined the aggregate effects test (see Wickard) noting that intrastate activities must be considered in aggregate only if the activities themselves are economic in nature. Less deference to Congressional findings. ii)

e)

Rule: Look to whether there is commercial motivation or something else. (1) Like Lopez, the fact that the motivation was not primarily an economic or commercial or

business concern counts against congressional power. But see: Gonzales v. Raich (2005)(p.121) - Upheld regulation on local cultivatio...