Con Law General Concepts & Terms

Articles of Confederation

Articles of Confederation

Government was NOT authorized to create a new constitution, only to amend the Articles of Confederation.

Ancient Constitution (England)

• Society’s most basic laws come from before formation of gov’t

• English law largely unwritten & was just a customary constitutional tradition

• Incorporated by statute as the Common Law of the United States

• Evidence in 14th Amendment of Constitution: “life, liberty, or property”

• Idea of Fundamental Law

  • attachment to the idea that we have a right for government to stay within its limits & function in a procedural way

• Positive law — human law put into place

• Basic idea is that we are free to act until laws restrict us

Purpose of the Constitution?

Form a more perfect union

Constitutionalism

• Commitment to having a fundamental law that is the fundamental & supreme law of the land

• Key Theme: centrality of the consent of the governed

  • NOT synonymous with democracy, republicanism, or any other governmental formL

Living Constitutionalism

• Discusses the purpose of having a Constitution

• Constitution is a living document which changes over time as society changes

• Must be updated in light of how society has evolved

  • how a different understanding of what justice is is required

• Lines up most with policy, natural law, or pragmatic interpretation

Legality of the Ratification of the Constitution

• Framers were NEVER authorized to write the Constitution, only authorized to improve Articles of Confederation

• Terms for amending — was supposed to be unanimous among 13 states, Framers created Constitution using decision of only 9/13 states

• Constitution was born by defiance from terms of authorization

• U.S. Constitution written by Framers & what they believed about English legal history, NOT what actually happened

  • Dead-Hand Problem: Future generations will be governed by the forms & decisions created by past governments

Calabresi’s 10 Purposes of Government

1. Set up or Constitute the Institutions of the National Government

2. Divide & Allocate Power

3. Serve as a Gag Rule

4. Restrain the Passions of the Moment

5. A Framework for Private Ordering

6. A System of Intergenerational Lawmaking

7. Promote the Rule of Law

8. Promote Democracy

9. Certainty from Getting Things in Writing

10. Lead to Good Consequences

Republican Form of Government

• Representative form of government

• Citizens are sovereign: exercise it by having power to elect government officials who will represent them accordingly

• Everyone is involved! — interests of its citizens are represented

  • Republican government FAILS if its representatives do not represent, & citizens do not act citizenly

Federalist No. 78 (Hamilton)

Courts must be able to pass judgment specifically on the constitutionality of actions of Congress & the President. (Judicial Review)

• Helps support the supremacy of the Constitution

Judicial Supremacy

• Alternative view to Departmentalism

• SCOTUS makes its own opinions as equivalent to the supreme law of the land (Constitution)

• SCOTUS decisions are binding on certain cases, BUT NOT binding on everything (NOT as supreme as the Constitution)

  • Jakes judicial review a step further

• Judicial Supremacy asserted in Cooper, not Marbury

Departmentalism

• Alternative view to Judicial Supremacy

• All units of government have the same power & duty independently to construe the Constitution — may argue different interpretations (Article 6)

  • Look at each of the 3 branches & what their power is to do XYZ

  • More widely accepted view

  • i.e., President Lincoln defending departmentalism & overruling Dred Scott SCOTUS decision, saying they were wrong

Separation of Powers in Constitution

THERE IS NO LANGUAGE IN THE CONSTITUTION SAYING THERE IS A SEPARATION OF POERS IN OUR NATIONAL GOVERNMENT…BUT THE PRINCIPLE STILL LIES, AS DEMONSTRATED BY HOW THE FRAMERS ALLOCATED POWER.

Where does sovereignty lie?

“We the People” NOT within the federal government or the States

Federalist No. 51 (Madison)

• Checks & Balances

• Government must control the governed & control itself

Legislative Checks on the Executive Branch

• Laws may NOT be enacted without check of both houses of Congress

• Power of the Purse — no money shall be drawn from the treasury, but in Consequence of Appropriations made by Law — federal cim for gov’t officials to spend money beyond appropriations

• Can cut off/refuse to appropriate funding

• Check President by passing bills by a 2/3 majority over their veto

• Can hold oversight hearings of the executive branch through their committees

  • Presidents come & go, Congressional oversight committees sit for longer

Legislative Checks on the Judicial Branch

• May deny SCOTUS & lower federal courts salary increases

• Power to alter jurisdiction & remedial powers of the lower federal courts & some power over the jurisdiction of even SCOTUS

• Power to eliminate lower federal courts or double their judges

• Power to increase/decrease size of SCOTUS, if public opinion supports doing that

• Same kinds of oversight hearings as executive check

• Overturn presidential or SCOTUS constructions of statutes by passing new legislation

  • Successfully done 4 times

• Overturn SCOTUS constructions of Constitution by proposing constitutional amendments

  • Successfully done 4 times

• Can impeach & remove any executive or judicial officer including President or SCOTUS justices by majority of HoR & 2/3 Senate

Executive Checks on Legislative Branch

• President can veto Congress’s bills (NOTE: veto can be overridden by 2/3 vote of both houses)

• Set priorities in law enforcement & law execution

• Broad power to direct, control, & remove policy making subordinates in the executive branch, thereby counter-balancing power of congressional oversight committees

• Control of foreign affairs where President = lead player (Commander in Chief power, treaty-negotiating power, & other inherent executive powers)

  • President salary may NOT be increased/decreased by Congress

Executive Checks on the Judicial Branch

• President & Senate jointly check over federal courts by appointing new federal judges & even SCOTUS justices

  • President influences what issues are litigated by controlling litigation in which the US is a party & through influencing the gov’t amicus participation

Judicial Checks on Legislative & Executive Branch

• Formidable power of judicial review

• Invalidate actions & laws on Constitutional grounds or reinterpret them

  • No SCOTUS justice has ever been successfully impeached & removed (convicted of some federal crime)

Delegation

Legislative powers go from People to Congress, then from Congress to Agencies

Congress & The Power of the Purse

• Article I, Section 8, Clause 1: Legislative powers “herein granted” in Constitution for Congress

• Ex. Formation of FCC

  • Congress gives power to FCC to regulate public airwaves in the public interest

    • this way, Congress does NOT have to make a statute for every broadcast issue

    • Issue: whether Congress can delegate its power to FCC to legislate

    • Locke Interpretation: legislative power does NOT include the power to make little legislatures (JV Congress)

Non-Delegation Doctrine

• Congress cannot delegate its delegation powers to other entities or branches of gov’t BUT they may delegate if there is an intelligible principle (Gundy) & the law is in the public interest

• Post-Roads Debate (Post-1791)

  • OG proposed bill established that Congress will specify town by town the path of the post-roads

    • Rep. Sedgwick’s Amendment to the Bill: “by such route as the President of the U.S. shall from time to time, caused to established”

      • Issue: whether to go with the OG bill or bill with amendment

      • Deeper issue: when Congress passes a statute to be executed by the President & those who help the President, how specific do we need to be?

  • Holding: Bill with amendment loses — Congress must lay out the roads itself

Bicameralism & Lawmaking

Article I, Section 7, Clause 3

• Bicameralism & Presentment

• Bicameralism — 2 chambered Congress, where both Houses must agree in order for a bill to pass

• Presentment — places President directly into lawmaking process to serve as shield — requires his agreement for a bill to pass UNLESS the HoR & Senate can TOGETHER override his veto

• Question: Whether Congress can take a 2nd bite of the apple using only one house —> NO (Chadha)

Appointments Power

Article II, Section 2, Cl. 2: Vested powers to the President may be given to other officers

NOTE: Constitution uses term “inferior” in this section, but NEVER “principal”

• “Principal” used in 25th Amendment

  • Any officer who is NOT inferior = principal OR superior

Appointments Clause (3 Different Kinds of Appointment Procedures)

Default Method: Presidential nomination + advice & consent of the Senate

• USE THIS METHOD for appointing Ambassadors, other Public Ministers & Consuls, & Supreme Court Justices

Principal/Superior Officers: MUST be appointed by Presidential nomination & Senatorial confirmation (DEFAULT METHOD)

• USE THIS METHOD for appointing Cabinet Members, Heads of Departments (that are within the Executive Branch or have some connection) given power by Congress to appoint inferior officers, etc.

Inferior Officers: Either default mode OR Congress can choose by statute (“by law”) to cut the Senate out of the process & allow appointment by either (1) President, (2) Courts of Law, or (3) Heads of Executive Department

• USE THIS METHOD for appointing postmaster first class, district court clerks, etc.

• Inferior officers range from Naval Cadet Engineers to Independent Counsels

Employees are NOT covered by the Appointments Clause

• Look at the duties of the job

• TEST: if the person occupies a “lesser functionary” position subordinate to officers of the U.S. —> person is an EMPLOYEE

Removal Power

• Constitution says NOTHING explicitly about removal power

  • No analogous formula to Appointments Clause in Article II, Section 2

• Rules for Removal: see how Myers, Humphrey’s, & Morrison work together (ALL 3 ARE GOOD LAW)

• NOTE: Decision of 1789 — implicit legislative endorsement of a presidential power to remove executive officials (Chief Justice Taft’s reasoning in Myers is based on the Decision of 1789)

4 Different Inferences on Removal of Executive Officials

• Impeachment — only mode of removal for executive officers mentioned in the Constitution

• President — Article II gives the President sole power of removal

• Mirrors Appointment — mode of removal ordinarily follows mode of appointment = removal by same procedure

  • Congressional Discretion — Congress can get whatever terms of removal it wishes whenever it uses the N+P Clause to create an office

Federalism

• Relations between national & state governments

• States are no longer sovereigns, but are residual sovereigns

• There is power checking at the national level, BUT also power checking between national & state level

  • Ambition checking ambition

    • Federalists: argue for powers to be kept within their respective lands — national & residual state lanes

    • Antifederalists: argue that SCOTUS sides with an increase in federal power

Federalist No. 10 (Madison)

• Relationship between federal & State power worked out in the Constitution is to give the U.S. a republic (delegation of government to smaller number of citizens elected by the rest) that counters factions (small, organized dissenting groups within a larger one)

• We CANNOT REMOVE the causes of factions —> rather, we must control the effects — How?

  • Federal v. State governments (power checking power)

  • Republic Government

    • An extensive republic is FAVORED

Necessary & Proper Clause

• Congress may carry into execution other powers (Article I, Section 8): lay & collect taxes, borrow money, regulate commerce, declare & conduct war, raise & support armies & navies

• Expansive view of N+P Clause set out in McCulloch

  • “Let the end be legitimate, let it be within the scope of the Constitution, & all means which are plainly adapted to that end, which are not prohibited, but consist with the letter & spirit of the Constitution, are constitutional.

    • TEST: ask whether the means chosen are reasonable adapted to the attainment of a legitimate end under the government’s power, within the scope of the Constitution, & appropriate & consistent with the letter & spirit of the Constitution

      • Must identify the power that makes this act necessary to carry it into execution

Commerce Clause

Article I, Section 8, Clause 3: “to regulate commerce with foreign nations, among the several states”

Congress’s power to legislate keeps on GROWING until Lopez

Are Courts bounded by Congress’s findings of fact?

NO.

Interstate Commerce Commission

Congress established the ICC to regulate interstate commerce for purposes of railroads & having the authority to decide whether or not railroads could acquire other railroads as a monopoly

Agriculture & manufacturing are NOT commerce activities, BUT navigation is (see Gibbons)

5 Possible Interpretations for “Proper”

• Nothing at all: Necessary & Proper are synonymous

  • This is textually & intertextually implausible

• Something different from necessary but the former is entirely subsumed within the latter

  • Proper = relatively generous term

  • Hard to square with Constitution’s general usage of conjoined activities

• Necessary & Proper = Unitary Phase with single meaning

  • Intratextual difficulties — Constitution uses conjunctive adjectives too frequently to assume use of them causal

• Distinct term for “Necessary” with distinct meaning

  • Proper = entity that is doing the acting

  • Proper Law = one that is within the peculiar jurisdiction or responsibility of the relevant governmental actor

• Combines #3 & #4: “Necessary & Proper” = unitary phase, BUT = means-end relationship (necessary definition) AND includes something like a “jurisdictional requirement” (4th interpretation)

What case does “The 10th Amendment is but a truism” come from?

United States v. Darby

Which case best shows how the Court uses different modalities when there is no text on point?

Printz v. United States

Dormant Commerce Clause (& the 3 different approaches)

When Congress hasn’t yet acted in a field in which it could have acted, but a State passes legislation concerning interstate commerce…Congress’s power is lying “dormant”

• BEFORE: idea that whatever States could regulate was off-limits to Congress & vice versa = exclusivity = dual federalism

• MODERN DCC Doctrine

  • There can be concurrent regulatory power to regulate interstate commerce if Congress is silent on the issue!

  • NO COMMERCE CLAUSE VIOLATION ONLY WHEN:

    • The State has a legitimate legislative interest in the health, safety, & welfare of its citizens (under the police power), AND

    • The State regulation/statute does not discriminate against others

3 Approaches:

• Marshall tried to distinguish between commerce & “police” regulation (Gibbons)

• Taney Court tried to distinguish between inherently national & inherently local activities

• SCOTUS used same/indirect effects test that is used in affirmative Commerce Clause cases

What Modality of Interpretation governs the Dormant Commerce Clause?

Precedent, since there is no text on point in the Constitution

Protectionism

Police power is to protect population, so when the state exercises police power it is to protect

Almost never passes strict scrutiny

Economic favoritism

2 Tracks of the Modern DCC Doctrine

Track 1:

• If the State law discriminates against other states in interstate commerce —> subject to Strict Scrutiny, usually held to be INVALID

  • To survive strict scrutiny & be upheld, State must show that the regulation…

    • Achieves a compelling state interest, AND

    • Nondiscriminatory means are either not available or unable to achieve the legislature’s narrowly tailored purpose

Track 2:

• If the State law regulates evenhandedly but imposes burdens on interstate commerce —> subject to BALANCING TEST, usually UPHELD if the state (1) acts evenhandedly, & (2) the effects on interstate commerce are only incidental (Pike v. Bruce Church)

Lochnering

Court’s aggressiveness in Lochner in invalidating NY statute, a criticism on the Court’s understanding of liberty & analysis of the legislature’s motive — Judges inserted their own opinions about economic liberties which overstepped judicial power

“Meyer Doctrine” - Meyer v. Nebraska

• Myer v. Nebraska

• Justice McReynolds

• Guaranteed liberties may not be interfered with under the guise of protecting the public interest by ARBITRARY legislative action —> what constitutes proper exercise of police power is not final, but is to be determined by the Courts

  • Foreign language proficiency is not injurious to health, safety, welfare, morals or the ordinary child…therefore, Nebraska exceeded the limitations of the police power

• A desirable end cannot be promoted by prohibited means

Who says “The day is gone” that the Court uses the 14th Amendment Due Process Clause to invalidate procedurally proper state laws regulating business & industrial conditions just b/c they may be unwise? And in what case?

• Justice Douglas - Williamson v. Lee Optical

• Looks to precedent modality since NY upheld an identical statute

• It is up to the legislature, NOT THE COURTS to decide the advantages & disadvantages of the law

  • If a State had a rational basis, motives of the legislature do not matter, a legitimate state interest is enough

What case solidifies rational basis in SDP & clarifies when to apply strict scrutiny?

Carolene Products

Rule: when legislation challenged as violation of due process of law —> presumption of validity, Rational Basis Review

Rule/Blueprint for heightened scrutiny —> when legislation appears on its face to be unconstitutional, restricts political processes, or discriminates —> STRICT SCRUTINY

In what case was the right to privacy in marital relationships inferred from the Bill of Rights?

Griswold v. Connecticut

Rule: Fundamental guarantees in the Bill of Rights have PENUMBRAS formed by EMANATIONS that give substance to those rights, & these establish the zone of privacy surrounding the marital relationship.

Where does the Zone of Privacy come from in Griswold v. Connecticut?

Constitutional Guarantees - 1, 3, 4, 5, 9

• First Amendment: right of association

• Third Amendment: prohibition against quartering of soldiers in home without consent of owner

• Fourth Amendment: protection against governmental invasion of the sanctity of the home

• Fifth Amendment: self-incrimination clause creates zone of privacy which government cannot force him to surrender to his detriment

  • Ninth Amendment: ENUMERATION OF RIGHTS SHALL NOT BE CONSTRUED TO DENY OR DISPARAGE RIGHTS RETAINED BY THE PEOPLE

Glucksberg Test Steps

Multi-step analysis to determine whether the law violates DPC

1. In framing the liberty interest, give a careful description, THEN

2. See whether the liberty is objectively deeply rooted in our nation’s history, tradition, practices, & precedent, such that neither liberty nor justice would exist if it were sacrificed

3. If the liberty IS DEEPLY ENTRENCHED —> liberty is FUNDAMENTAL —> Conduct Strict Scrutiny Test

   1. Does the state have a compelling interest for enacting this law?

   2. Is the law narrowly tailored to achieve that compelling interest?

4. If the liberty IS NOT DEEPLY ENTRENCHED —> it is NOT FUNDAMENTAL —> Conduct Rational Basis Review

   1. See whether the State had a rational basis for pursuing a legitimate interest

Which Justice in Glucksberg had the developing approach of viewing interests on a continuum?

Justice Souter

• Rather than drawing a hard line between strict scrutiny & rational basis (Rehnquist’s dichotomy in the majority), we should view the interest on more of a continuum

• Yes, examine history, BUT NOT CONCLUSIVELY — court should look to whether the interest is compelling to place within the realm of “reasonableness”

  • Ask: is the law/statute’s restraint on liberty purposeless?”W

What are the 5 factors in overruling stare decisis mentioned in Dobbs to overrule Roe & Casey?

• Nature of the court’s error

• Quality of reasoning

• Workability of the “rules” they impose

• Disruptive effect on other areas of the law

  • Reliance Interests - there are no concrete reliance interests here

What case overrules Bowers v. Hardwick?

Lawrence v. Texas

• The liberty protected by the Constitution allows homosexual persons the right to engage in this intimate sexual behavior — more broad/expansive

• Discussion of the harm principle — no harm present in sexual practices of mutually consenting adults

• Texas Statute does not even pass rational review

  • Prohibiting homosexual sex for “moral” purposes DOES NOT further a legitimate state interest which would justify intrusion into the personal & private life of the individual