LJA Chapter 6 Part 1
Introduction to Constitutional Law
Key Questions to Consider in Constitutional Law:
Is there government action involved?
Did the government do anything to restrict or compel behavior?
Does the government possess the explicit or implied authority to act, prohibit, or compel certain behaviors?
Core Constitutional Law School Classes:
Separation of Powers: Focuses on the roles and limits of the Legislative, Executive, and Judicial branches (Articles I, II, III).
Federalism: Deals with the division of power between the federal government and state governments (Article IV).
First Amendment: Covers fundamental rights such as freedom of speech, religion, press, assembly, and petition.
Civil Rights: Primarily concerns rights protected under the 14th Amendment and their application to the states.
Criminal Procedure: Examines rights related to criminal investigations and trials (4th, 5th, 6th Amendments).
This chapter covers specific cases.
Foundational Documents: Articles of Confederation and U.S. Constitution
The Articles of Confederation (United States' First Government):
Served as the first attempt at a unified government for the United States.
Article XIII: Stated that every state must abide by the determinations of the united states in Congress assembled. It declared the Articles to be "inviolably observed by every state, and the union shall be perpetual."
Alterations to the Articles required agreement in Congress and confirmation by the legislatures of every state.
The U.S. Constitution (
We the People):Context: Replaced the Articles of Confederation to form "a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty."
Article VII: Stipulated that the ratification by conventions of nine states ( out of ) would be sufficient for its establishment.
Document of Compromises: The Constitution represents numerous compromises among the founding fathers.
Basic History:
Drafted in in Philadelphia.
Ratified in after states approved it, but effectively implemented after broader ratification.
Required of the original states to ratify for full establishment.
Order of State Ratification:
1. Delaware (December 7, )
2. Pennsylvania (December 12, )
3. New Jersey (December 18, )
4. Georgia (January 2, )
5. Connecticut (January 9, )
6. Massachusetts (February 6, )
7. Maryland (April 28, )
8. South Carolina (May 23, )
9. New Hampshire (June 21, ) - Ninth Ratifying State, making the Constitution officially established.
10. Virginia (June 25, )
11. New York (July 26, )
12. North Carolina (November 21, )
13. Rhode Island (May 29, )
Facts About the Constitution:
Contains total words in the original draft.
Comprises Articles.
Initially included Amendments (the Bill of Rights).
Has total amendments to date.
Constitution Day is September 17 (the day most delegates signed it).
27th Amendment:
States: "No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened." This means congressional pay raises cannot take effect until after the next election cycle for the House of Representatives.
Changing the Constitution (Article V):
Proposal Methods:
A proposal by Congress, whenever of both Houses deem it necessary.
A proposal by a convention called upon the application of the legislatures of of the several states.
Ratification Methods:
Ratification by the legislatures of of the several states.
Ratification by conventions in thereof.
No amendment made prior to the year could affect the first and fourth clauses in the ninth section of the first article (related to slave trade and direct taxes).
No state, without its consent, shall be deprived of its equal suffrage in the Senate.
Structure of the U.S. Government
Basic Principles:
Three Branches of Government:
Legislative (Article I): Congress (House of Representatives and Senate) – Makes Laws.
Executive (Article II): President and Cabinet – Enforces Laws.
Judicial (Article III): Supreme Court and lower courts – Evaluates Laws.
Separation of Powers: A constitutional doctrine distributing separate and distinct powers to each of the three branches of government.
Checks and Balances: A constitutional doctrine ensuring each branch operates as a check on the powers of the other branches, preventing dominance by any one branch.
Legislative Branch (Article I - Congress):
Composition: All legislative Powers granted are vested in a Congress, consisting of a Senate and House of Representatives.
Terms:
House of Representatives: members, serving -year terms.
Senate: senators (two from each state), serving -year terms.
Defined Powers (Article I, Section 8):
Collect taxes, pay debts, and provide for the common defense and general welfare.
Borrow Money.
Regulate Commerce with foreign nations and among the states.
Establish uniform Rules for naturalization and bankruptcies.
Coin and Regulate money; punish counterfeiting.
Establish Post Offices and post roads.
Promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries (copyrights and patents).
Constitute tribunals inferior to the Supreme Court.
Define and punish piracies and felonies committed on the high seas, and offenses against the law of nations.
Declare War.
Raise and support armies.
Provide and maintain a Navy.
Make rules for the government and regulation of the land and naval forces.
Provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions.
Provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States.
Exercise exclusive legislation in all cases whatsoever, over such District (not exceeding miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States.
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 (Necessary and Proper Clause).
Executive Branch (Article II - President):
Composition: The executive Power is vested in a President of the United States of America.
Terms: Elected to a -year term, can serve no more than terms.
Powers (Article II, Section 2):
Commander-in-chief of the armed forces.
May demand opinions from Cabinet secretaries.
Grant pardons for crimes against the United States (except in cases of impeachment).
Make treaties (with Senate consent).
Appoint ambassadors.
Appoint judges to the Supreme Court and other judges and officers as Congress may provide by law (with Senate consent).
Take Care Clause (Article II, Section 3): Requires the President to "take Care that the Laws be faithfully executed."
Language Difference: Note the distinction from Article I: Article I states "All legislative Powers herein granted", implying specific, enumerated powers. Article II states "The executive Power shall be vested in a President," suggesting a broader, more inherent grant of executive authority.
Judicial Branch (Article III - Supreme Court and Inferior Courts):
Composition (Section 1): The judicial power of the United States is vested in one Supreme Court and in such inferior courts as Congress may establish.
Judicial Tenure: Judges hold their offices during good behavior and receive compensation that cannot be diminished during their continuance in office.
Judicial Power Extent (Section 2):
Extends to all cases in law and equity arising under the Constitution, U.S. laws, and treaties.
Includes cases affecting ambassadors, public ministers, and consuls; admiralty and maritime jurisdiction; controversies where the U.S. is a party; controversies between states; between a state and citizens of another state; between citizens of different states; between citizens of the same state claiming lands under grants of different states; and between a state or its citizens and foreign states, citizens, or subjects.
Original Jurisdiction: The Supreme Court has original jurisdiction in cases affecting ambassadors, other public ministers and consuls, and those in which a state is a party.
Appellate Jurisdiction: In all other cases mentioned, the Supreme Court has appellate jurisdiction, both as to law and fact, with such exceptions and regulations as Congress shall make.
Trial by Jury: The trial of all crimes, except impeachment cases, shall be by jury in the state where the crimes were committed. If not committed within a state, Congress directs the place.
Treason (Section 3):
Consists only in levying war against the U.S. or adhering to their enemies, giving them aid and comfort.
Conviction requires the testimony of two witnesses to the same overt act or confession in open court.
Congress has the power to declare the punishment of treason, but no attainder of treason shall work corruption of blood or forfeiture except during the life of the person attainted.
Judicial Review
Definition: The power of the courts to review statutory law (laws passed by the legislative branch) to determine if the law is constitutional.
Origin: Marbury v. Madison (1803) - The Cornerstone Case:
Authored by Chief Justice John Marshall.
Issue: Whether the Supreme Court had the authority to issue a
writ of mandate(an order from a court to a government agency or lower court directing an action or inaction).Facts:
Involved the Judiciary Act of , which had granted the Supreme Court original jurisdiction to issue writs of mandamus.
Outgoing President John Adams, after Thomas Jefferson's presidential election victory, signed the Judiciary Act of , creating new judgeships.
Adams appointed circuit court judges and justices (Justice of the Peace) in a short span.
Commissions had to be delivered to appointees to be official.
Not all commissions were delivered by the time Jefferson took office (e.g., William Marbury's commission).
Marbury and others sued Secretary of State James Madison for their commissions, asking the Supreme Court to issue a writ of mandamus.
Holding:
The Supreme Court agreed that Madison should have delivered the commission.
However, the Court found that Congress had exceeded its authority by extending the Court's original jurisdiction beyond what was specified in Article III of the Constitution.
The Court reasoned that Congress could not pass a law violating the Constitution due to its supremacy.
Crucially, the Court asserted its own power to make the determination of whether a law is constitutional, thus establishing
Judicial Review.
Federalist Papers and Judicial Review:
A series of essays defending the Constitution, written by John Jay, James Madison, and Alexander Hamilton under the pen name Publius.
Federalist Paper 78: Specifically outlined the concept of Judicial Review. It was written by Alexander Hamilton.
How Cases Reach the Supreme Court (and Why Judicial Review isn't More Frequent):
Standing: There must be a personal injury or harm to the plaintiff. The law or government action must have demonstrably affected or hurt the individual bringing the suit.
This requirement originates from the
Case and Controversy Clauseof Article III, Section 2, ensuring courts only hear actual disputes.
Hollingsworth v. Perry, S.Ct () - Standing Example:
Basic Facts: California initially allowed gay marriage, then citizens passed a constitutional amendment (
Proposition 8) defining marriage as between one man and one woman. A gay couple denied marriage sued California in federal court and won.The State of California declined to appeal this ruling.
Concerned citizens (proponents of Proposition 8) intervened and took up the appeal to the Supreme Court.
Supreme Court Holding: The Court "side-stepped the issue" of gay marriage on the merits. It ruled that the concerned citizens lacked standing because they did not suffer a tangible injury directly caused by the lower court's decision (California already allowed gay marriage based on the lower court ruling, and the state itself chose not to defend the ban).
Quote from the Case: "We have repeatedly held that such a generalized grievance, no matter how sincere, is insufficient to confer standing. A litigant raising only a generally available grievance about government--claiming only harm to his and every citizen's interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large--does not state an Article III case or controversy." And, "Article III standing is not to be placed in the hands of concerned bystanders who will use it simply as a vehicle for the vindication of value interests."
The Bill of Rights
First Ten Amendments to the U.S. Constitution (): Delineate constitutional prohibitions on government actions against its citizens.
Overview of the Bill of Rights (Generally Speaking):
1st Amendment: Freedom of Speech, Expression, Religion, Press, Assembly, and Petition.
2nd Amendment: Right to Bear Arms.
3rd Amendment: No quartering of soldiers without consent.
4th Amendment: Protection against unreasonable searches and seizures; requires probable cause for warrants.
5th Amendment: Due process of law, protection against self-incrimination (right to remain silent), no double jeopardy; requires grand jury for serious criminal charges; just compensation for private property taken for public use.
6th Amendment: Rights of the accused in criminal prosecutions: right to a speedy and public trial, impartial jury, to be informed of the accusation, to confront witnesses, to obtain favorable witnesses, and to have legal counsel.
7th Amendment: Right to a jury trial in civil matters where the value in controversy exceeds dollars.
8th Amendment: Prohibition against excessive bail, excessive fines, and cruel and unusual punishments.
9th Amendment: States that the enumeration of certain rights in the Constitution shall not be construed to deny or disparage others retained by the people.
10th Amendment: Powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Incorporation Doctrine:
A legal principle by which specific rights guaranteed in the Bill of Rights are made applicable to the states through the Due Process Clause of the 14th Amendment.
The Bill of Rights originally applied only to the federal government. It began to apply to the states after the ratification of the 14th Amendment ().
Selective Incorporation: The prevailing view, where the Supreme Court applies specific rights from the Bill of Rights to the states on a case-by-case basis.
Total Incorporation: An opposing (and minority) view that argues the entire Bill of Rights should apply wholesale to the states.
Scholars and judges continue to disagree on the correct approach.
The First Amendment: Rights and Limitations
Text of the First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
Core Clauses of the First Amendment:
Establishment Clause: Prohibits the government from establishing a religion, favoring one religion over others, or generally involving itself in religious affairs (e.g., prayer in public schools, using tax dollars to support a particular religion). *
Free Exercise Clause: Prohibits the government from preventing individuals from practicing their chosen religion (e.g., Holts v. Hobbs). *
Freedom of Speech Clause: Generally protects a person's right to express themselves without government censorship or retaliation. *
Right to Peacefully Assemble Clause: Protects the right of people to gather and exchange ideas. *
Right to Petition the Government for a Redress of Grievances Clause: Guarantees the right to appeal to the government for correction of wrongs. *
*Note:* There are a number of exceptions and limitations to these rights. Some argue the First Amendment should be absolute ("Congress shall make no law"), but over the past years of case law, the Supreme Court has established many qualifications.
Historical Context: The Alien and Sedition Acts ():
Signed into law by President John Adams.
Consisted of laws:
Increased residency requirement for American citizenship from to years.
Authorized the president to imprison or deport aliens deemed "dangerous to the peace and safety of the United States."
Restricted speech critical of the government, directly challenging the spirit of the First Amendment.
Congress repealed the law in .
First Amendment - Religion:
Establishment Clause: Prohibits government laws that result in the establishment of a religion (e.g., government funding of private religious schools; state-mandated prayer).
Free Exercise Clause: Prohibits government laws that interfere with a person's right to freely practice a religion.
Holts v. Hobbs, S.Ct () - Free Exercise Example:
Facts: A Muslim prisoner sought permission to grow a -inch beard for religious reasons. Prison regulations only allowed a -inch beard, citing fears of prisoners hiding contraband or disguising themselves.
Holding: The Supreme Court held that the regulation violated the prisoner's right to Free Exercise. The prison failed to adequately articulate why a -inch beard, as opposed to a -inch beard, posed a realistic security threat, especially regarding the hiding of contraband.
First Amendment - Freedom of Speech (Unprotected Speech):
While the First Amendment broadly protects speech, it does not cover everything. The phrase "Congress shall make no law" does not mean literally "no law."
Categories of Unprotected Speech (with limitations/tests):
1. Speech Leading to Physical Injury (Incitement): Speech must lead to an immediate injury and must actually incite that injury (e.g., falsely yelling "Fire!" in a crowded theater).
2. Commercial Speech: Generally protected as long as it's true and not misleading.
Puffery(exaggerated claims not meant to be taken literally) is distinct.3. Defamatory Speech: Untrue statements that injure another's reputation.
Slander: Spoken defamatory words.Libel: Printed/written defamatory words.Actual Malice: A heightened standard required for defamation claims involving
public officialsorpublic figures. The plaintiff must prove the statement was made either with knowledge of its falsity or with reckless disregard for whether it was true or false.
4. Obscenity: Sexual material that appeals to
prurient interest(an unhealthy interest in sex) and is deemed to have nosocially redeeming value(Miller testcriteria apply).5. Campaign Speech (Spending Money): While spending money in support of a campaign is considered a form of political expression, campaign finance laws regulate it, though with First Amendment scrutiny.
Virginia v. Black, U.S. () - Threatening Speech:
Facts: Virginia Statute: Banned cross-burning with the intent to intimidate another person. Defendants were convicted under this statute.
Argument: Defendants argued the statute unlawfully restricted their right to freedom of expression.
Supreme Court Holding: Virginia could ban cross-burning when done with the intent to intimidate. The Court focused on the direct tie to intimidation, noting cross-burning's "long and pernicious history as a signal of impending violence."
Key Distinction: The ruling debated whether cross-burning can ever be done in a non-threatening way, recognizing that symbolic acts can convey messages.
Quote from the Case: "The First Amendment permits Virginia to outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation. Instead of prohibiting all intimidating messages, Virginia may choose to regulate this subset of intimidating messages in light of cross burning's long and pernicious history as a signal of impending violence."
New York Times Co. v. Sullivan, U.S. () - Defamation & Actual Malice:
Facts: An advertisement was published in the New York Times about an Alabama Sheriff during the Civil Rights movement. The ad contained some falsehoods.
The Sheriff sued for libel and won a large judgment in state court.
Supreme Court Holding: Overturned the state court judgment. While states can regulate defamatory speech, a
higher standardapplies forpublic officials(and later, public figures).To allow robust public debate, the Court held that a public official suing for defamation must prove
Actual Malice: that the statement was made either with knowledge of its falsity or with reckless disregard of whether it was true or false.
Ashcroft v. Free Speech Coalition, U.S. () - Obscenity & Child Exploitation:
Facts: Dealt with a federal law aimed at preventing child exploitation. The law banned child pornography and also banned "any visual depiction… that is or appears to be of a minor engaging in sexually explicit conduct." This included
virtual child pornography—images produced without using real children (e.g., youthful-looking adults, computer-generated imagery).Supreme Court Holding: Struck down part of the law for being too broad. The Court noted that the law covered other content that would not constitute obscenity under the
Miller test(a multi-part legal test for obscenity).Impact: The law, as written, could potentially ban legitimate artistic or cinematic works depicting youthful (but adult) characters in suggestive situations, such as Romeo and Juliet, Buffy the Vampire Slayer, or American Pie, if interpreted broadly.
Snyder v. Phelps, U.S. () - Freedom of Expression & Public Issues:
Facts: The Westboro Baptist Church (known for its strong disapproving views on homosexuality) picketed a military funeral with signs expressing messages like "God hates fags" and "Thank God for dead soldiers." They were peaceful and positioned on public property, in compliance with local officials.
The deceased soldier's family sued for
Intentional Infliction of Emotional Distressand won in lower courts.Supreme Court Holding: Reversed the lower court decision. The Court found that the judgment violated the Westboro Baptist Church's right to Freedom of Expression.
Reasoning: The protest addressed matters of
public import(the war, homosexuality in society) onpublic propertyin apeaceful manner, even though the speech was hurtful. The Court emphasized that the nation has chosen to protect even hurtful speech on public issues to ensure public debate is not stifled.Quote from the Case: "Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. It did not disrupt Matthew Snyder's funeral, and its choice to picket at that time and place did not alter the nature of its speech. Because this Nation has chosen to protect even hurtful speech on public issues to ensure that public debate is not stifled, Westboro must be shielded from tort liability in its picketing in this case."