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Constitutional Law I Outline - Professor Wallace - Campbell Law - Part 4

By Miller Moreau
Professor Wallace - 2020

Download the PDF version of this outline

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Dilemma of Judicial Supremacy

  • Does judicial review imply, or enable, judicial supremacy?
  • Lincoln v Douglas debates
    • After Dred Scott decision, Lincoln argued (during an election where he wanted Douglas’s Senate seat) that the decision should be overruled by a later court
    • Douglas saw SCOTUS as supreme and not to be argued with
  • Departmentalism:
    • Lincoln
    • Each branch of the gov interprets the const separately and independently
  • Judicial Supremacy:
    • Doulgas
    • Only the federal courts have the power to interpret and enforce the constitution
  • (actual practice has been a blend of both)
  • Questions to consider:
    • Must other branches branches follow federal court decisions interpreting the Const?
    • Must the executive branch enforce a federal court decision interpreting the Const in a specific case?
    • Common depart. Would say yes and yes
  • Cooper v Aaron (1958):
    • Held that the executive branches in states did have to enforce the federal court decision which interpreted the constitution to mean segregation in schools violated equal protection of 14th am
  • Ex Parte Merryman (1861):
    • Had previously held that Lincoln’s suspension of the writ of habeas corpus was unconstitutional, but when the executive branch did not accept the service of a writ of attachment to free people, SCOTUS held that the executive must follow the federal court’s decision

Adjudication of Genuine Disputes: Cases and Controversies

  • The Correspondence of the Justices:
    • Jeff and SCOTUS
  • Jefferson’s letter
    • Asked for advisory opinion concerning what US should do when England and France were at war with one another
  • SCOTUS letter to Jeff
    • Said deal with it yourself, Jeff
    • No advisory opinions to the executive branch bc the judicial power is confined to cases and controversies only
  • Alexis de Tocqueville
    • Liked the US system of federal courts bc is different than Europe
  • Ex Parte Levitt (1937)
    • The CT refused to entertain the merits of Congressman L’s motion to make Justice Black show why he is properly serving on the bench bc the “injury” was not meaningful or personal to him, but to the public generally, so lacked standing
    • Who would have standing there?
      • A litigant before Black, who argued that his impropriety would affect the outcome of the case
  • US v. Windsor (2013)
    • CT held that the legislative branch did have standing to argue the constitutionality of legislation after the ex branch decided not to defend Marriage Act
      • Scalia dissenting, stating that the parties were no longer adversarial so no standing bc no controversy
      • Alito dissented bc agreed with Scalia that there was no adversity anymore; but found that BLAG would have had standing bc Chadha held that congress is the proper party to defend the validity of a statute when the ex branch won’t defend it
  • Standing requirements:
    • Parties must allege that have suffered or will suffer a concrete injury, that is not hypothetical;
    • The injury must be fairly traceable to D; AND
    • The injury is redressable by a favorable ruling
  • Ripeness:
    • Asks whether the case is ready to be litigated
    • Test:
      • Hardship to the parties (esp P) if there was no judicial review, and
      • Fitness of the issues and record for judicial review
      • MUST BE YES AND YES to be ripe
  • Mootness:
    • Asks whether the controversy has been eliminated
    • Events like repeal of the act challenged, death of a party, settlement, etc
    • Exceptions:
      • Secondary injuries (the injury is moot but has collateral consequences; think Powell, where he still wanted his salary)
      • Wrong that is capable of repetition yet would likely evade judicial review (think abortion and time limit of pregnancy)
      • Illegal practice that has stopped but could be resumed; and
      • Class actions

Political Question Doctrine

  • Even if a suit has standing, is ripe, and not moot, the case may still be nojusticable as a pol question
  • The question is whether the legal issue is appropriate for judicial resolution or better left to the political branches
  • Note: a case is not political question just bc it involves political issues or is a big deal for society
  • Luther v. Borden (1849)
    • Luther sued in trespass, claiming Borden broke and entered his house unlawfully bc the charter gov had been out of effect at the time
    • Ct held that it is for the other branches to recognize the legitimacy of the state governments; the pres here had considered sending military in to defend the state from insurrection pursuant to Const, so Ct would not say that charter gov was overthrown
    • Before modern pol question doctrine, but same principles
  • (Walter) Nixon v. US (1993)
    • CT held that the Senate’s impeachment process was a political issue for the Senate to regulate and refused to decide whether Senate had violated the impeachments clause of Const
  • Baker v Carr factors:
    • Does Const text commit the issue to another branch?
    • Is there a judicially-discoverable and manageable standard for resolving the issue?
    • Can the ct decide the question without showing a lack of respect for the other branches?
    • Is there an unusual need for unquestioning adherence to a political decision already made?
    • Is there potential for embarrassment from multifarious pronouncements by various branches on one question?
  • Critique:
    • Seems like a roundabout way of deciding the case; by saying won’t review the issue, is sort of giving a green light to the gov
  • Note: easiest paradigm to think of as a pol question is war powers; be careful here

Congressional control over judicial power:

  • Sheldon v Sill:
    • Ct held that Congress can limit the jurisdiction of the lower cts which is creates pursuant to Art III section 1
  • Ex Parte McCardle:
    • Ct held that Congress can take away SCOTUS’s appellate jurisdiction from a pending case (really dicta, but still)
  • Approaches today to how much congress can change juris:
    • Congress has plenary power to change or limit SC’s app juris
    • Congress has power to limit app juris, but only if it then assigns the power to a lower fed ct
    • Congress has NO power to limit app juris, but can only shift that power to Court’s original juris
    • Congress has power to limit, but cannot destroy the “essential role” of SC in const plan as the apex and last resort of all (??? like what even is this interpretation)

Sovereign Immunity and the 11th Am:

  • Chisholm v. Georgia
    • SC citizen sued state of GA to recover a Rev War debt
    • Ct held that sovereignty is with the ppl and allowed him to sue the state
    • Justice Iredell’s dissent:
      • Says that the states are sovereign absent a congressional law which says otherwise
      • Bc there is no statute here which authorizes suing a state pursuant to const, have to fall back to CL which says states are sovereign
      • Would not allow the suit
  • Responses to Chisolm:
    • The 11th Am:
    • 2 possible readings of the 11th am:
      • It reverses Ch bc the ct’s interpretation of the original meaning of the const was wrong, or
      • It reverses Ch bc original meaning of the const did not recognize state sovereignty and that is no longer politically acceptable
    • The 11th Am text:
      • Says nothing about suing a state under federal question, but Hans ct held that states cannot be sued by their own citizens under federal question
      • The solution: sue state officials, or see if state consents to it (like FTCA)
      • Can sue the official in personal capacity (in law) and official capacity (in equity)

Defined (loosely): the system of government in which there is vertical separation of powers such that the national and state governments provide checks on one another

Federalism No. 10:

  • Madison says that factions are a big evil for a government, and the way to control its effects is with a republic
  • Factions are groups of people with interests that are adverse to the rest of the people
  • Unlike with a democracy, a republic will control both the minority factions, and if there is a majority faction, its effect won’t be as widespread
  • The optimal size of a faction is large bc there will be a lesser concentration of the factions, but notes that at some point, a rep can be too large and puts a strain on the relationship b/w states and their reps in the national gov

The National Bank Controversy

  • Only Hamilton wanted this; Pres Wash agreed and signed it into law
  • Jeff, Jackson, and Madison did not want this
  • The big issue was whether or not the power to create a national bank was an incidental power to congress; it isn’t enum in art 1 sect 8 but could it be incidental to the power to lay and collect taxes, etc?
  • Madison eventually signed the 2nd ban into law bc the public wanted it and they had had it for 20 years already
  • McCulloch v. MD
    • After the second bank was enacted, MD signed into law a tax on the federal government in order to operate in that state; McCulloch, the head of the MD branch of the bank of US, sued MD
    • Ct held that congress does have the power to create a national bank (nec and proper), and that the MD bank unconst contradicts that power
    • Marshall argued practice, text and structure, history, and policy
    • This case shows an expansion of federal power
    • Remember the quote (Let the end be legit); this seems to be his interpretation of the nec and proper clause
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