Con law professor Larry Sager Fall 1995 I. U. S. Term limits V. Thornton

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Professor Larry Sager

Fall 1995



-The Supremacy Clause might be seen as a basis for judicial review.

-Constitutionalism-written constitution, corpus of judicial decisions under constitution, settled expectations under this corpus, robust tradition of judicial activity giving meaning to constitution (particularly in terms of the liberty-bearing aspects, which are spoken of generally, allowing the court to give them shape), constitution as touchstone of justice.

-In an opinion of the Court, the majority of the justices sitting on the case agree not just with the outcome but also with the rationale. It has precedential value on both counts.

-Two kinds of concurring opinions: one where the concurrer joins the majority outcome and rationale and just wants to add his two cents; and two, a true concurrence, “concurring in the judgment” in which the justice joins in the outcome but not the rationale.

-If an opinion is “announcing the judgment of the Court” it’s a plurality.

-Marshall’s Marbury argument rests on three assumptions: 1. that the Constitution is law; 2. that the Constitution is the highest legal source; 3. that judges bear the same relations to this source of law that they bear to other sources.

-Deference-the idea that the Supreme Court should defer to legislative judgment if it differs from that of the Court. Relies on the idea that what the legislature does is presumptively constitutional.


United States Term Limits v. Thornton: Arkansas residents voted to amend state constitution to limit ballot access for incumbents. Court said it violated fundamental principle that people should choose whom they want to govern them. Other reasons: inconsistent with Framers’ vision that Qualifications Clause in Constitution (Art. I, §§ 2 & 3) is exclusive and fixed; relied on Powell; not within original powers of states and therefore not reserved by 10th Amendment; salary provisions show representatives owe allegiance to people and not states; no evidence in ratification debates; don’t want patchwork of qualifications; indirect denials (ballot access) won’t fly; not a time, place or manner regulation. According to the dissent, Constitution is silent on the issue so it shouldn’t bar it, also not an enumerated power and therefore is in fact a reserved power of the states. Qualifications clauses not exclusive.

Marbury v. Madison: Marbury had been appointed justice of the peace and sought a writ of mandamus to get Madison, Jefferson’s secretary of state, to deliver the commission. Jefferson had repealed the midnight judges act and kept the Supreme Court from sitting for two terms. Court refused to issue the writ of mandamus but did set forth principle of judicial review--power to declare acts of Congress unconstitutional. Court said writ was for original not appellate jurisdiction, and this power not given by Constitution.

Martin v. Hunter’s Lessee: Virginia land dispute that turned on who held title. Question developed into Supreme Court appellate jurisdiction over constitutional decisions by state courts. Court said it did have jurisdiction because it must have jurisdiction of all cases arising under. Important for uniformity of decisions, and if plaintiff could litigate only in state court a party might be deprived of some of its rights.


-There is an intertemporal dissonance between ancient political majorities overriding our majorities now; there is an intratemporal or majoritarian difficulty in that an unelected body determines what this long ago majority meant.

-How do we explain Thornton’s concern with democracy when we already have term limits for our president?

-In Marbury, Marshall was ruling on commissions for “midnight judges” that he had signed while still secretary of state.

-Could Marshall have exercised original jurisdiction because original and appellate are not mutually exclusive or because the Constitution defines a minimum or original jurisdiction but you could go beyond that.

-Judges are far from a representative demographic.

-One thing that remains from Marbury is that Congress can deprive the Court of jurisdiction.

-Although Martin was decided in reference to the U.S. Constitution, it might also be applicable to state laws.

-In Cohen v. Virginia the court reaffirmed Martin for state criminal proceedings, and also exercised jurisdiction where the state was a party.


-Judicial review gives rise to a countermajoritarian difficulty. Ackerman notes, though, that these policies were once the product of a majority so it’s not so much a countermajoritarian problem as it is a temporal problem. Others also say the countermajoritarian difficulty is no difficulty at all.

-One problem with judicial review is that it does not encourage legislatures to moderate themselves. They assume they can constitutionally do whatever they may do.

-Many people say the Constitution should be read by original intent, but there are problems with this: Whose intent do we follow? some are vague, some may have been intentionally left vague for later interpretation, What about new problems or old problems in new circumstances?

-The Constitution could follow prevailing morality, but why are judges better arbiters than legislators and the Bill of Rights is often regarded as a shield against consensus.


-Three sources for constitutional adjudication: the text, natural law and natural rights and reinforcement or improvement of democratic processes.

-Judicability depends on standing, mootness and ripeness.

-Standing: injury has to implicate illegality complained of.

-Mootness: at one time was appropriate injury, but circumstances have changed so case mooted out.

-Ripeness: too early, the plaintiff has not sustained sufficient damages to be before the Court.

-Under Article V the amendment process begins when two thirds of both houses propose or the legislatures of two thirds of the states call for a constitutional convention. It then must be ratified by three fourths of the states.

-How does a court have jurisdiction? In a system of limited jurisdiction, we have to carry an assumption of inherent jurisdiction to hear questions of jurisdiction.

-Even today, state courts have jurisdiction over almost everything. Federal courts have exclusive jurisdiction in few situations.

-Severability: when a law has an unconstitutional piece, you can sever the piece or strike the law, severability is determined by the agency that wrote the law.

-The Supreme Court can always fall back on Article III jurisdiction.

-If Congress passed a law and tried to deprive all courts of rights to hear claims under it, it would be a deprivation of due process and state courts could also probably get jurisdiction.

-Exceptions and regulations clause relates to Court jurisdiction.

-Essential functions argument-the judiciary has an essential function of interpreting the law. The Supreme Court provides uniformity in this effort, and the independence of judges speaks to its importance.

-Selective deprivation: Congress trying to starve rights by regulating them. You can’t do by deprivation of jurisdiction what you otherwise couldn’t do under the Constitution.

-Constitutional torts: If a government official subjects someone to a strip search, that is a constitutional tort.


McCulloch v. Maryland: Maryland tried to tax Bank of United States. Court said federal government is limited in its powers but supreme in its sphere. It also said there were implied powers and the power to form a national bank is implied in several other provisions. If the end is legitimate then the appropriate means to reach it are also constitutional. Maryland also may not tax the bank because the power to tax is the power to destroy.

Calder v. Bull: Legislature overturned court’s decision. Supreme Court allowed it, but said there were serious limitations on what a legislature could do to overturn a court’s decisions. In the majority Justice Chase thought there was an unwritten Constitution of principles of natural law.

Ex parte McCardle: McCardle arrested under reconstruction laws and challenged the power to make such laws. Congress, however, had taken away the court’s jurisdiction to hear habeus corpus under the laws and therefore dismissed the case for want of jurisdiction.


-Marshall saying “it is a constitution we are expounding” was considered extremely important by Frankfurter.

-Was the creation of a national bank really necessary and proper? The court didn’t even really look at that.

-United States v. Klein, unlike McCardle, invalidates a congressional taking of jurisdiction.

-What about the power of Congress to deny jurisdiction to lower courts (Art. III §1 implies that lower courts exist at the will of Congress), particularly when it did not have to create them in the first place? Eisenberg says its not constitutionally permissible because it would deny the Supreme Court the right of review.


-Three different readings of Marshall’s rationale in Marbury: 1. Marshall asserts for his colleagues the prerogative to refrain from unconstitutional conduct; 2. Marshall asserts capacity to announce legal rules and order government officials to comply with these rules when they are defendants; 3. Court’s authority to declare what constitutional law is in an area and when it is exclusive and unlikely to change mind.

-McCulloch suggests two propositions that are sacred but startling: 1. generous view of necessary and proper clause, makes the word necessary sort of redundant with proper; 2. the federal government’s entities are constitutionally immune from taxation or regulation by state government.

-Cooper v. Aaron suggests that courts are the sole arbiters of the Constitution, and that legislators cannot decide such issues for themselves and must takes courts’ interpretations as authoritative

-Lincoln believed that parties to a case should follow the Court’s ruling, but he doubted that it would always be valid for the people themselves.

-According to Sager’s theory of unenforcement, the Court sometimes will refuse to invalidate an unconstitutional statute because of extra-constitutional considerations, in such situations, he believes it is the province of the legislature to step in and determine its constitutionality. He believes government officials have a legal obligation to obey an underenforced constitutional norm.

-What did the word necessary mean in the context of a national bank?Jefferson thought it meant really necessary whereas Hamilton merely thought it meant needful.

-Book sees McCulloch as the foundation for representation reinforcement as a guide for judicial action.

-Does the text of the Constitution confer on the Supreme Court the authority to invalidate statutes that do not transgress the Constitution specifically? Natural law or argument from contract.

-One view of natural law is that elected bodies are inherently conservative on problems that go to fundamental moral issues so courts are better able to deal with them.

-Learned Hand did not believe in natural and derisively said he did not want to be protected by nine platonic guardians.

-Jefferson thought the Constitution should be rewritten by the people every generation, but Madison thought this would be too divisive.

-Three views on amending: 1. Madison’s view against it shouldn’t constitutionalize flavors of the day; 2. Jefferson’s easy process because why give extra deference to yesterday’s decisions; 3. should only be done to remedy serious structural defects or include groups previously excluded from polity.

-Does McCardle give Congress plenary power over the Supreme Court’s appellate jurisdiction? According to Hart & Wechsler this power is an important check on the Supreme Court. Some see it as a plenary power because the Constitution contains no check on it.

-An argument against plenary power is that it would destroy the essential role of the Supreme Court.

-Sager has written that plenary power would alter the balance of power fundamentally and dangerously. Others see the possibility of withdrawal of jurisdiction depending on the purpose of such an act.

-Sager says there are four ways to amend the Constitution by two processes. As far as proposing amendments, 2/3 of each House can propose specific amendments, or 2/3 of the states can call on Congress to call a convention, and amendments can be proposed. Ratification can proceed by two means, 3/4 of the states’ legislatures can ratify or special conventions can be called in states to ratify amendments. Only way ever used is proposal by 2/3 of U.S. Houses and ratification by 3/4 of state legislatures.

-Can a state withdraw its ratification, or undo a rejection?

-He thinks in the Constitutional amendment process, people is a metaphor for the process of debate, deliberation and vote.


-Originalism: Judges deciding constitutional issues should confine themselves to enforcing norms that are stated or clearly implicit in the Constitution by those who ratified it.

-Nonoriginalism: Task of interpretation authorizes courts to make particular judgments not foreseen by or even contrary to those of the Constitution’s ratifiers.

-Interpretivists argue that courts must rely on value judgments within the Constitution; noninterpretivists say courts can look outside the document.

-To date, the court has incorporated all of the first eight amendments except the Second and Third, the Fifth amendment’s requirement of grand jury indictment and the Seventh amendment.

-Those rights that are incorporated are done so in the same for state and federal governments.

-By 1937 the court had abandoned Lochner-style substantive due process reviews of economic regulation.

-Under unconstitutional conditions doctrine the government cannot penalize people for exercising constitutional rights. Are Maher and Harris emblematic of this?

-Before Webster, the Court overturned a number of de facto restrictions on abortion, including spousal consent, parental consent, forcing doctor to determine that fetus is not in fact viable, forcing disposal of remains of unborn fetus in humane way, mandatory counseling.

-In Webster v. Reproductive Health Services (1989) the Court upheld several provisions of a Missouri statute regulating abortions. Included in these were statement that life begins at conception, and a bar on state employees and public facilities performing abortions.

-There were two understandings of due process: 1. substantial fairness, due process provided protection from egregious unfairness in criminal justice. 2. Black’s view was that it would bring all of the Bill of Rights into play against state governments (full incorporation). The hybrid view is selective incorporation.

-One can say the due process clause is the positive law that brings some of the natural-law concepts like liberty to the fore in the Constitution. Harlan saw due process as the door through which the liberties underlying the Constitution could be accessed.

-When the Ninth was mentioned in Griswold, it was one of the first times it had been mentioned. The Ninth and 10th provide clues on how to read the Constitution.


The Slaughter-House Cases: The state had given a monopoly on slaughtering, and plaintiff said it was denied the privileges and immunities of a citizen of the U.S. The Court gave an extremely narrow reading of the privileges or immunities clause and said the first eight amendments were not among the privileges and immunities of U.S. citizens and therefore not applicable to the states. The decision rendered privileges or immunities a nullity.

Barron v. Baltimore: Barron invoked takings clause of Fifth in reference to state action. Court refused to apply Fifth to state action.

Murray v. Hoboken Land & Improvement: Before 14th Amendment, Court said Fifth due process came from Magna Carta.

Twining v. New Jersey: Jury was instructed that it could draw an unfavorable inference from defendant’s refusal to testify. Court refused to recognize that privilege against self incrimination was against due process.

Palko v. Connecticut: Concerned state’s right to appeal in criminal cases as violation of double jeopardy. Court refused to recognize right in state context.

Adamson v. California: Court refused to respect defendant’s right against self incrimination in state court. In dissent, Justices Black and Douglas talked of full incorporation.

Duncan v. Louisiana: Court held Sixth Amendment right to trial by jury applicable to states, saying trial by jury was fundamental to American scheme of justice. Court also talked about which rights had been incorporated.

Lochner v. New York: Court held unconstitutional law regulating number of hours bakery employees could work in a week. Court said statute violated due process clause by unnecessarily interfering with freedom of contract between employer and employee. Said it was beyond the police power of the state. Court said there was not a direct enough relation of means to end. Court didn’t buy into data on bakers’ health problems.

Nebbia v. New York: Government was fixing milk prices to keep milk producers afloat, and Court upheld law. Court really opened up economic due process.

West Coast Hotel v. Parrish: Court upheld a state law establishing a minimum wage for women. Court said Constitution did not speak of freedom of contract. Court said community would have to pay for these workers if they didn’t make enough money so they should make more money.

United States v. Carolene Products: Legislature had passed laws against filled milk, and the Court upheld it under a rational basis standard. In Footnote 4 Justice Stone said there might be more exacting scrutiny of some rights under the 14th and also in cases of discrete and insular minorities who have been cut out of political process.

Williamson v. Lee Optical: Oklahoma had a law making it unlawful for an optician to fit or duplicate lenses. The lower courts overturned the law, but the Court upheld the law and said that the legislature had wide latitude to make even laws that weren’t even necessarily that good.

Ferguson v. Skrupa: Kansas statute made it unlawful for people to practice debt adjusting. Skrupa went out of business and said he’d been denied due process. Court gave legislature wide latitude.

Griswold v. Connecticut: Connecticut had law banning giving contraception advice even to married people. Court found right of privacy in penumbras emanating from First right to freedom of association; Third against quartering of troops; Fourth freedom from searches and seizures; Fifth protection from self incrimination; and the Ninth reserving rights to people. The Court then said the measure was unnecessarily broad.

Roe v. Wade: Texas statute made abortion a crime except for saving the life of the mother. Court says right to privacy is found in 14th’s conception of personal liberty, and it uses it to overturn law. Court said fetus not considered person under Constitution. Court did not attempt to determine when life began. Court left first trimester decision to pregnant’s woman’s physician. The state may regulate in the second trimester and may proscribe in the third, both in the interest of the health of the mother. Douglas said it was a Ninth issue.

Maher v. Roe: Court upheld ban on Medicaid bans for nontherapeutic abortions. Court said their was no discrimination against suspect class because indigent women didn’t fall into one. The state was placing no restriction on access to abortions that was not already there--it was not direct state interference.

Harris v. McRae: Court upheld Hyde Amendment, which prohibited use of Medicaid funds for nonessential abortions.

Akron v. Akron Center for Reproductive Health: Akron passed ordinance putting a number of restrictions on abortions. The Court overturned them for a number of reasons.

Planned Parenthood of Southeastern Pennsylvania v. Casey: Court upheld Roe (barely) in this abortion-rights challenge. Court affirmed what it called essential three parts of Roe holding: 1. recognition of woman’s right to abortion before viability without undue interference of state; 2. confirmation of state’s power to restrict abortions after fetal viability; 3. principle that state has legitimate interests from outset of pregnancy in protecting health of woman and life of fetus. Court adhered to stare decisis. Court rejected trimester framework. Court also dropped strict scrutiny for undue burden test. The dissent baldly stated that they think Roe was wrongly decided.


-As Ely notes, natural law can be invoked to support anything you want, but unfortunately everyone understands that.

-The Slaughter-House Cases reflect a reluctance to extend federal rights to states.

-One explanation for Lochner is that judges were so effected by antislavery that they wanted to protect the right of the individual to bestow his labor as he pleased--doesn’t explain Holmes dissent.

-After Lochner to the mid-1930s the Court invalidated about 200 economic regulations. If the court felt the regulation was truly designed to protect the health, safety or morals, it was more likely to uphold the law, but if it thought it was just economic adjustment it would not.

-Miller claims that in Carolene Products the court upheld an unprincipled example of special interest legislation, and it actually hurt people by raising the cost of milk.

-The phrase “right to privacy” was probably coined by Brandeis in the 1890s in the context of a tort.

-If Lochner is wrong, can Griswold be right? Neither has an explicit constitutional basis.

-The Ninth Amendment was never invoked by a single justice until the 1960s.

-In Eisenstadt v. Baird, the Court extended Griswold’s protection to unmarried couples because otherwise the law provided dissimilar treatment.

-Ely says that if you want to talk discrete and insular minorities that’s fetuses and not women.

-Problems with viability as standard: It is not biologically fixes, it varies from fetus to fetus, if the court were really concerned with viability it would have banned abortion after that point.

-There have been suggestions that equal protection would be a better protection for abortion rights than privacy.

-In Maher and Harris the government leaves allocation of abortions to the market, but doesn’t government distribute most of the goods poor people consume?


-Argument against nonoriginalism. Framers didn’t give power outside four corners of document and it gives too much power to unelected judges.

-Bork on originalism: Legal reasoning rooted in concerns for legitimate process rather than preferred results is designed to keep judges in their proper role. The original understanding is one way of providing baseline principles.

-There are numerous systematic difficulties in determining original intent, though, like whose intent counted and just what was their intent?

-Grey points out that when the Constitution was written the Framers were working within a concept of natural law as a higher law.

-Tushnet claims that when we imagine the world of the past we not only reconstruct it, we also construct it.

-Simon argues for bearing in mind democracy, freedom, equality and justice as baseline moral beliefs.

-Ely believes in representation-reinforcement and thinks the preoccupation with procedural fairness and broad participation is one way to accomplish this.

-As the industrial age progressed, the due process clause was used to invalidate economic regulations and protect freedom of contract.

-Criticisms of Lochner: liberty of contract not among those protected by due process; even if it were there would not be substantive protection; legislation was justified by its attempt to protect health; it was a labor law that was within legislative power.

-Sunstein argues that in the post-Lochner period economic legislation with the thinnest veil of public-regarding accommodations is upheld. As Nelson points out there’s little effort by the Court post-Lochner to distinguish from good and bad economic regulations.

-Some people think that those intended to benefit from economic regulation, the poor, are actually hurt by it, by rising prices and the like.

-Griswold is perceived by many as a revival of substantive due process.

-Rubinfeld says the right to privacy is the fundamental freedom not to have one’s life too totally determined by the state.

-Critics say that although the court relied on a general right of privacy in Roe, it had not been established in precedents.

-Defenders of Roe draw on tradition, consensus, political theory and moral philosophy. Unequal burden on women, family integral part of constitutional system.

-Cox thinks Roe is too bound up in legalese and reads like a set of hospital rules and regulations, certainly details that are not in the Constitution.

-Thomson says the right to life is the right not to be killed unjustly and it has yet to be proven that an abortion is an unjust killing.

-One pro-feminist argument against Roe is that by doing it judicially rather than legislatively the Court helped create the Moral Majority and demobilize the feminist movement.

-One idea is that the rights referenced in the Ninth are not constitutional at all but are really moral rights, another view, which Sager likes, is that the Ninth is a single statement that does not exhaust the rights protected in the Constitution.

-Are the Ninth and 10th unnecessary because they ratify rights rather than create them?

-Sager has several responses to argument that moral state of fetus is not up to court: 1. constitution speaks for political community, and fetuses are not part of political community; 2. states can decide moral status of fetus, but they can’t do so at cost of denying abortion to women; 3. if a state can’t commit itself to things like prenatal care, how can it ask a woman to sacrifice?; 4. people are so divided on it, it should be left to individual choice.

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