Constitutional Law defines the rules and structures for government, as outlined in its articles.
The government is divided into three political branches:
Congress (Legislative)
President (Executive)
Courts (Judiciary)
Amending the Constitution's articles originally required a unanimous vote.
The Constitution's amendment process was itself a violation of the original articles, as it was ratified with only 9 states voting in favor.
The U.S. Constitution drew inspiration from:
The UK's Bill of Rights.
France's concept of separation of powers, assigning distinct functions to each branch.
The branches maintain "checks and balances" over each other, such as the presidential veto, which can be overridden by a 2/3 vote in Congress.
Structural analysis of the Constitution reveals a separation of powers through the assignment of functions and organs to different persons, even though it does not explicitly state this separation.
The President can direct other entities within the executive branch to act in specific ways.
Article I delineates Congress's limited powers, preventing it from overstepping state authority.
Article II concerns the President (Executive), detailing powers related to appointments, selection of officers and judges, and treaties.
Article III establishes the Supreme Court and its justices' tenure of "good behavior," which translates to life tenure and salary protection.
Judicial independence is ensured because the judges' salaries are protected and they cannot be threatened with being fired, preventing bias. Congress cannot diminish their salary to influence their decisions.
The Supreme Court is the only court mandated by the Constitution; Congress can create lower courts but is not required to.
Judicial power is activated by conflicts leading to the creation of laws, requiring active disputes or "cases and controversies"—this is known as justiciability.
Article V outlines the amendment process for the Constitution, involving 2/3 of Congress.
Rights are defined as negative prescriptions against government power.
Articles of Confederation (1777):
Featured a single legislative chamber.
Lacked a bill of rights.
Had no president.
State courts deemed sufficient for governance, without federal courts or laws.
Independence War (led by George Washington) in 1781.
Constitutional Convention (1787):
Originally intended to reform the Articles of Confederation but resulted in a new constitution.
Article 1: Legislative power to Congress.
Article 2: Executive power to the President.
Judicial power: Supreme Court and other courts established by Congress.
Antifederalists claimed the Constitution lacked a bill of rights, which would guarantee citizen rights and freedoms.
Bill of Rights introduced in 1789 by Madison, limiting the national government's power and taking the form of amendments.
The Constitution has remained unchanged but has been interpreted by the Supreme Court.
Under Chief Justice Marshall, the Supreme Court gained the power to invalidate unconstitutional federal laws and review laws for conformity to federal law, established in Marbury v. Madison.
Interpreted the power of Congress.
Limits state power.
Civil War: Resulted in three new amendments abolishing slavery, establishing citizenship rights for slaves, and ensuring due process and equal protection under the law (Fourteenth Amendment).
End of 1800s: Congress gained power over tax and income, and women gained the right to vote.
Great Depression: Conflicts arose between President Roosevelt and the Court's view of the Constitution. Roosevelt proposed a new system for judge turnover in the Supreme Court.
1941: Roosevelt's appointments shifted the direction of the Supreme Court.
1953: Under Chief Justice Warren, the Supreme Court emphasized equal justice and implemented significant changes in criminal procedure.
Burger, as new chief justice, led a counter-revolution against these ideas.
Under Chief Justice Rehnquist, new directions focused on federal issues.
The abortion decision was overturned.
The Constitution's principles include the rule of law, majority rule, freedom, equality, and fairness.
The Constitution faces criticism for being:
Created by privileged white men, misrepresenting the country's diversity by excluding slaves, black people, women, and Native Americans, who were not represented or did not ratify it.
Undemocratic in some components, vesting significant power in the president.
The Supreme Court is accused of being politically oriented.
Schneiderman v. United States
The case of Schneiderman v. United States exemplifies Americans' attachment to the principles of the Constitution.
Facts:
Benjamin Schneiderman, a Russian-born immigrant, became a U.S. citizen in 1927 and had been a member of the Communist Party of the United States (CPUSA) since 1922.
The CPUSA was associated with revolutionary Marxist ideology and allegedly advocated for the violent overthrow of the U.S. government.
In 1939, the U.S. government sought to cancel Schneiderman's citizenship, arguing he concealed his Communist Party affiliation and was not "attached to the principles of the Constitution."
Schneiderman claimed he joined the Communist Party for its advocacy of social and economic reforms and did not support violence or overthrowing the government.
A major requirement for citizenship is compliance with the Constitution.
Granting citizenship to communists was problematic for the executive branch at the time.
Procedural History:
District Court: Revoked Schneiderman’s citizenship.
Ninth Circuit Court of Appeals: Affirmed the District Court’s decision.
Supreme Court: Granted certiorari to review the case.
Issue: Did the government provide sufficient evidence to prove that Schneiderman was not "attached to the principles of the Constitution" at the time of his naturalization, thereby justifying the revocation of his citizenship?
Holding: The Supreme Court ruled in favor of Schneiderman, reversing the lower court decisions. The Court held that the government failed to meet the required burden of proof to revoke Schneiderman’s citizenship.
Reasoning:
High Burden of Proof for Citizenship Revocation: Revoking citizenship is a severe action, akin to imposing criminal penalties, requiring "clear, unequivocal, and convincing evidence."
Interpretation of "Attachment to the Constitution": Membership in the Communist Party was insufficient to prove a lack of attachment to the Constitution, as the Party had not openly espoused violence at the time.
Absence of Clear Evidence of Subversive Intent: Schneiderman's actions and statements lacked clear evidence that he personally advocated for violent or unconstitutional measures. His beliefs in reform and social justice were not incompatible with constitutional principles.
Protection of Political Beliefs: Safeguarding individuals' rights to hold political beliefs, even if controversial or unpopular, is essential. Revoking citizenship based solely on membership in an organization would set a dangerous precedent.
Concurring opinion:
STONE (justice) would take the citizenship away, drawing a line for communists, deeming their citizenship unsafe.
Political violence is non-starting, it is non-American, it is off the table.
The Judicial Power (Art. 3)
The judicial power is vested in the courts, where judges preside.
Federal judges hold their positions for life and their salaries cannot be reduced (salary protected).
They are paid by Congress, making them more independent because they cannot be influenced by threats to be fired or salary reductions.
There must be a live issue at for the judge to rule over a subject matter, otherwise it’s advisory opinions.
Marbury v. Madison (1803) set up judicial legitimacy.
First President Georges Washington established the norm of two four-year terms.
The U.S. Constitution is built on customs and norms and is relatively short (14 pages).
Following Adams's loss to Jefferson, Adams appointed "midnight judges" from his party at the last minute.
Marshall was the Chief Justice of the Supreme Court and Secretary of State under Adams.
Jefferson hated Marshall.
While the Constitution mandates a Supreme Court, Jefferson initially closed it showing the SC didn’t have that much weight back in time so that people would care.
SC legitimacy depends on the executive enforcing its laws, which is not automatic but influenced by voters' opinions of the court.
The Supreme Court was not taken seriously at the time.
Power of the Supreme Court to Interpret the Constitution
In Marbury v. Madison, Adams signed Marbury's commission for appointment, but it was not delivered.
Madison, the Secretary of State under Jefferson, was responsible for delivering the commission.
Marbury sued Madison for not delivering the commission.
Marbury sought a writ of mandamus from the Supreme Court, ordering Madison to deliver the commission, based on the Judiciary Act.
Marbury's case was considered doomed because Marshall, as the former Secretary of State, had failed to deliver the commission initially.
The Supreme Court's legitimacy depended on Madison winning the case.
Questions to the Court:
Is Marbury entitled to his commission? Yes.
Can the Court order the executive power to behave a certain way?
The Court had to interpret the meaning of appointment.
The Supreme Court ruled that a commission is valid from its signature, with delivery being a technical step by the Secretary of State.
Delivery is a ministerial act, mechanical and not discretionary, and should not determine someone's appointment as a judge.
The appointment becomes effective when the steps become technical.
The court wants to know the nature of Adam’s decision ? its decision cannot be reviewed as it is of its discretionary power by law. Marshall, the judge cannot judge the decision. First jurisdiction is the power to hear the case.
Case involved conflicting laws: Congress passed a law allowing cases to start at the Supreme Court level (Judiciary Act), but the Constitution stated otherwise.
The Supreme Court declared the law conflicting and void, establishing judicial supremacy, giving the Supreme Court the final word of interpretation of the Constitution.
Marbury's case was dismissed as the legal basis was improper, and he needed to start in a lower court.
The Supreme Court struck down the act conflicting with the Constitution, asserting its legitimacy and judicial supremacy, solidifying the Supreme Court's power to void laws.
Marbury becomes one of the most important case, as the SC gains its legitimacy, by answering lots of questions and impose its role as the SC capable of issuing its own law but also overturn years of precedent.
In Marbury, the court interprets the C° words.
Sources and Methods of Judicial Decisions
Introduction to Interpretative Issues
Marbury confirms the judicial power to invalidate federal, state laws as unconstitutional.
Judges use different techniques to interpret the Constitution, classified into:
Originalists: Interpret the Constitution through the text and intent of the framers.
Purposivists: Interpret the Constitution to address the needs of contemporary society.
Different opinions:
SCALIA: Originalism best addresses the nature and purpose of the Constitution in a democratic system.
BRENNAN: The benefit of the Constitution is the adaptability of great principles to cope with current problems and needs.
Pragmatists: Promote flexible techniques to interpret the Constitution.
Realists: Think that all interpretative modes are window-dressing for personal preferences.
Textualism
Plain meaning rule
Words are to be understood in their usual and most known signification, if dubious, establish meaning by context.
Blackstone first canon
Such literal reading may be supplemented by structural textualism in which meaning of words may be clarified thru their relationship w/ other provisions.
Could be an issue when terms are vague: ex: due process, equal protection,…
Originalism
Original intention of framers: judicial decision making less subjective
It constrains judges by giving them opinion references other them their own.
Meaning at the time it was written
Lack of notes on the making of C°
FEDERALIST PAPERS: 85 essays on the proposed C° used as source of original intent, originally used to convince states to adopt the C°.
Purposivism
Subject matter or mischief that the law addresses
Interpreting c° by considering values, concepts, and principles behind text.
Natural Law
Calder v. Bull : CHASE : an act of legislature contrary to great first principles cannot be considered rightful exercise of legislative authority.
IREDELL : think no court of justice could declare a law void.
Philosophical notions of justice
Religiously idea based of Precedent:
Never overturns a previous decision concerning statutory construction.
Congress can amend statute
Precedent may save a decision
Miranda v. Arizona : lawyer, remain silence.
Roe v. wade overruled in Dobbs v. Jackson women’s health organization
Foreign law:
Roper v. simmons : death penalty violates 8th amendment against cruel and unusual punishment.
Opinions of justices.
Limits on Judicial Power
The Case of Controversy Limit
The Article 3 s.2 on subject matter of the Constitution limits the court's power to make any law to cases where there are actual disputes.
Court has sometimes self-regulated itself by founding some exercise outside of its scope.
This is called finding a matter “nonjusticiable” = then the suit is out of federal court system.
Justiciability has different pb and could easily be found to be:
Advisory opinion:
The court responds negatively to branches asking them for opinion. They refute. Ex: Washington asking for opinion on neutrality position of us among UK-France war.
Standing:
Whether the plaintiff is the proper party to bring the legal action. C° proper.
Ripeness:
Controversy not ripe if premature. If facts are dvp enough.
Mootness:
Case become irrelevant. However in circumstances it is capable of repetition, yet evading review.
Political questions:
The Constitution entrusts a decision to congress or president: political question it is.
Justiciability doctrine defines the separation of power of the judicial branch as a definite and proper limited role of the courts in democratic system.
Discussions about justiciability go down to:
Whether court is using it to avoid decide on certain matters ?
Is ignoring justiciability considerations to decide matters that should be left to other body ?
Standing and Mootness in FOE v. Laidlaw
Facts:
Clean Water Act, 505(a), action to enforce limitation on pollution brought by any citizen having interests affected. Must first give notice to EPA to give chance to repair the pollution by violator.
Act in suit can give rise to civil penalties, depends on seriousness of violation, economic benefit resulting from violation, good faith efforts to comply w/ requirements, economic impact of penalty on violator.
Laidlaw, bought waste incinerator w/ wastewater treatment plant. Once having it, discharged pollutants in waterway, exceeding limit permitted.
FOE, initiate proceedings of litigation: sent letter to D to give notice of intention to file suit after expiration date of the time to repair wrong + civil penalties.
Argument of parties:
Laidlaw: FOE lacked standing for failure to show facing of any injury in fact from D activities to any members + no demonstration of harm to environment from the discharges. Lack standing to seek civil penalties.
Procedural posture:
The suit was filed for noncompliance, P sought declaratory and injunctive relief + civil penalties. D moved for SJ: FOE failed to present evidence showing injuries thus lack of art 3 standing to bring suit. Court awarded civil penalties, but declared the case moot as remedy would not redress injuries suffered.
Issue: Standing and mootness.
Rule(s): Lujan v. defenders of wildlife: requirements to satisfy art 3: P must show suffering injury in fact that is
Concrete and particularized
Actual or imminent not conjectural or hypothetical;
Likely not speculative that injury will be redressed w/ favorable decision. Association is proper party = have standing, if its own member can on their own bring suit.
Analysis:
Question of standing: The members of the association had suffered injuries. Their activity has been challenged, could not enjoy area as they were affected. In the case of Lujan: could not be injuries suffered when one member suffers from disability to enjoy a small part of a large land. Neither it was enough to want “someday” to enjoy the land. Must face realistic threat (Lyons). Here = it was a threat, pollution was occurring at time of complaint.
Civil penalties offer no redress according to D. this is wrong, it does more to promote compliance and deter future violations. Court dissent with the argument that it is availability rather than civil penalties that deters pollution from continuance. Court acknowledges the fact that even if sometimes the penalty is insubstantial or too remote it is still working. The court takes the position that here civil penalties, can redress the P.
Question of mootness: Look at D voluntary conduct: compliance, shutdown of facility. Even if it is shut down the court can still rule over legality of the practice.
Standards to evaluate the mootness are stringent:
Become moot if subsequent events made clear that wrongful behavior could not reasonably be expected to recur.
It is the burden of the parties asserting mootness (D) to convince the court. Sometimes may be too speculative to support standing but never to overcome mootness.
Parties must have standing at the time action commences. It is such regulated to ensure federal resources are used for parties having concrete stake.
Holding: Parties have standing.
Massachussets v. EPA
Facts:
Parties: Massachusetts (plaintiffs) vs. Environmental Protection Agency (EPA) (defendant)
Issue: Whether the EPA had statutory authority under the Clean Air Act to regulate greenhouse-gas emissions from new automobiles.
Claims: Massachusetts alleged EPA's failure to regulate would lead to coastal land loss due to global warming.
EPA's Defense: Clean Air Act did not authorize greenhouse-gas regulations; Congress had ongoing climate change investigations.
Lower Court: United States Court of Appeals for the District of Columbia Circuit ruled in favor of the EPA.
Supreme Court Action: Granted certiorari to review the case.
Issue: Whether a State has standing to sue the EPA for not enforcing the Clean Air Act.
Rule(s): In order to have standing to sue in a federal court the petitioner must have; injury in fact, causation, and redressability in the claim, these elements are easier to meet if you are a State rather than an individual.
Analysis:
In order to have standing a petitioner must have injury, causation and redressability. Typically the injury of green-house gases would be too tenuous for an individual to claim is a direct injury. However this is the State that is filing suit not the individual. The State has a quasi-sovereign interest.
The State has an interest in the land on its coast, and they have shown the injury of losing coastal property as the water rises. The State has also shown the casual connection, which the EPA does not deny, that global warming is a cause of the water rising.
As for redressability, that is shown as well. If the EPA regulates emissions from cars, that will help the issue of global warming in the State of Massachusetts. Since all requirements are shown, standing is proper.
Holding: Standing for petitioners.
Dissenting opinions : SCALIA + THOMAS :
Injury in facts based on vague affidavits
Marry wrong w/ pb remedy = law enforcement to be placed w/ private individuals.
P must show standing : barely did it, based their claim on beliefs and on concerns. This alone is not enough to satisfy requirements of concrete injuries. Failure to show harm.
Redressability requirement treatment : weak.
Accepting this case amount to allow citizens the function of enforcing law+ public fine diverted to private interest.
Problem is that it is placing power of suing to enforce public law in private hands.
NOTES:
Prudential standing: set of considerations that may counsel against a federal court deciding a case, even when c° criteria for standing have been met. It precludes a decision on merits.
Zone of interest and generalized grievance test.
Individuals have standing to challenge federal statute on the ground that it interferes w/ powers reserved to states under 10th amend. bc federalism secures individuals liberties by diffusing sovereign power.
Concrete and particularized Actual or imminent The difference is in the nature of the injury: timing + concrete injury. Individual standing – associational standing
Political questions in BAKER v. CARR
Tennessee's Constitution required legislative districts to be redrawn every 10 years based on population changes.
Despite this requirement, Tennessee had not redistricted since 1901.
As a result, urban districts like Shelby County had significantly more residents than rural districts.
Baker argued that this disparity resulted in rural votes being weighted more heavily than urban votes, violating equal protection.
Baker contended that the case was justiciable and within the court's jurisdiction.
Tennessee argued that legislative districting was a political question not suitable for judicial review.
Issue: Alleged violation of equal protection due to unequal representation in legislative districts.
Analysis:
Consider the contour of the political question doctrine: to determine whether a question falls within the political question category, must consider:
The appropriateness under the system of government of attributing finality to the action of the political departments
Lack of satisfactory criteria for a judicial determination. Whether or not a political question is justiciable is a question of separation of powers.
Common pattern to political question:
Textually demonstrable constitutional commitment of the issue to a coordinate political department.
Lack of judicially discoverable and manageable standards for resolving it
Impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion
Impossibility of court undertaking independent resolution without expressing lack of respect due coordinate branches of government
Unusual need for unquestioning adherence to a political decision made
Potentiality of embarrassment
Unless one of these is impossible to deal with, the presence of a political question in the case is not for dismissal for non justiciability. This case here shows similarities with a case not yet considered: C° guaranty of a republican government. Luther v. Borden: in its holding the guaranty clause is not repository of judicially manageable standards which court could utilize independently in order to identify a state lawful government.
Why does Tennessee argue that this is a political question?
Tennessee says that legislative districting is a political matter, not a legal one.
They rely on Luther v. Borden, a case where the Court said it could not decide what a “lawful government” of a state is because the Constitution doesn’t provide clear legal rules for courts to follow in such cases.
Why does the Court reject that argument?
The Court analyzes past cases to see if this issue fits into the political question category.
None of the typical reasons for a political question apply here:
The Constitution does not say that only the political branches can decide this.
There are clear legal standards under the Equal Protection Clause of the 14th Amendment.
Courts have previously ruled on equal protection issues in elections.
Key Takeaway:
This case is not about a political question. Instead, it's about whether Tennessee’s districting violates the Equal Protection Clause.
Courts are allowed to hear cases about unfair voting practices because the right to equal voting power is a legal right, not just a political issue.
Since the Equal Protection Clause provides clear legal rules, the Court can decide whether Tennessee’s failure to redistrict was arbitrary and unfair.
The factors: main one is judicially manageable.
Rucho v. Common Cause
Lawmakers in North Carolina and Maryland changed voting district maps to give their party an advantage.
In North Carolina, Republicans drew a map that helped them win nine seats while Democrats won only three, even though more people voted for Democrats statewide.
In Maryland, Democrats changed a district to remove many Republican voters and add Democratic voters, causing the district to elect a Democrat instead of a Republican.
Voters in both states sued, saying the new maps were unfair.
Lower courts agreed with the voters and ruled against the lawmakers.
The lawmakers appealed to the U.S. Supreme Court.
The Supreme Court decided to review the case and first considered whether it had the power to rule on political map-drawing.
Issue: Did the court exercise well its judicial power when they found states congressional districting maps unconstitutional ?
Rule(s):
Art 3 C°: cases and controversies
Art 1 §4 : election clause, election to congress.
Apportionment act Compactness and equality of the population.
One-person / one-vote.
Analysis:
For resolving such case, standards must be grounded in a limited and precise rational and be clear manageable, and politically neutral.
Judges found pb:
Voters claims unfairness
To rule on fairness os hard as it is not even clear what fairness looks like in this context.
To provide fairness it would require gives more support to adversary party.
The other alternative would be to ensure each party has safe seat but comes at the expense of the competitive districts …
Those questions on fairness are political not legal. Beyond competence. Judges hardly can decide on that bc there is no objective measure for assessing whether a districting map treats a political party fairly.
No appropriate standards to assess partisan gerrymandering, where cannot ask for elimination of partisanship = not like racial gerrymandering where it is for elimination of racial classification.
There has been proposal by dissent of a criteria assessing to measure how extreme a partisan gerrymandering is: nonsense bc it will vary year to year, from state to state. = indeterminate and arbitrary.
The C° doesn’t provide basis to decide here. Only addresses the matter assigns it to the political branches. The solution, although the situation is unjust, doesn’t lie with the federal judiciary. No authority un C°, no legal standards of any kind.
The court is missing that what they said cannot be done has already happened: fed courts, have largely converged on a standards of adjudicating partisan gerrymandering claims