Constitutional Law Outline Doctrines Constitutional Review/Interpretation

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Prof. Malamud Con Law

Fall 2003

Constitutional Law Outline

Constitutional Review/Interpretation

  • Types of constitutional argument that can be used to analyze and interpret the Constitution:

    • Constitutional text

    • Historical argument

    • Structural argument

      • Intent of the framers/originalism

        • Framers’ intent often not clear

        • Why should we be bound by their dead hands?

      • Ongoing history

      • Judicial doctrine

    • Value arguments

Who is a valid interpreter of the Constitution?

  • Courts have the exclusive power to interpret the Constitution (Marbury v. Madison)

    1. Marbury

      1. Holding: Where a statute violates the Constitution, it is the duty of the courts to apply the Constitution as paramount law which supersedes inconsistent statutes.

      2. These 2 principles – preeminence of the Constitution and judicial review – were not expressly provided for in the Constitution.

      3. Marbury can be read to give the judiciary power of judicial review or as giving the judiciary the ultimate power to interpret the Constitution. Although many have argued that other branches also have the power and duty to interpret the Constitution, the Court increasingly contends that it has the ultimate power to do so.

    2. The Constitution is a law and should be interpreted by people who are good at interpreting laws (the judiciary). This implies that the Constitution is a law like any other and ignores the possibility that the Constitution might be different from the laws courts usually enforce and interpret.

    3. Judicial review provides a check on the legislature. Even in a world with active public political participation, judicial review is still necessary to:

      1. Prevent a tyranny of the majority over the minority.

      2. Protect against the majority’s collective action problems experience by needing to be the “aroused public” all the time.

    4. Expertise, finality, and independence all lead to a judicial supremacist view.

      1. Is the court’s neutrality compromised when dealing with issues of federalism? (McCulloch v. Maryland.) The court will probably be interested in advancing a federal agenda over a state one.

    5. The court can defer to the legislature on questions of structure of government, as long as “the great principles of liberty are not concerned” according to McCulloch v. Maryland.

    6. Remember: Not everything gets to the courts. Before things reach the judicial branch, other interpretations have been tried. This creates a balance.

    7. Federal judges should have more authority than state judges, because state judges represent only the electorate of their state, not the nation as a whole. Martin v. Hunter’s Lessee; Cohen v. Virginia

    8. If you have judicial review, according to Kramer, you must strike a balance between accountability and independence.

  • States and their institutions can be Constitutional interpreters

    1. This was Maryland’s argument in McCulloch v. Maryland. If the Constitution emanates from the states rather than the people, it should be the states’ interpretation that binds. Marshall smacks down this argument, saying that the people ratified the Constitution and not the states, so this would not be a valid argument today.

    2. The states are suspect interpreters because of their conflicts of interests.

  • The People can be Constitutional interpreters.

    1. If the entire citizenry is on a course, the Supreme Court can’t change it. Giles v. Harris  This looks like the Supreme Court copping out. Even if the Supreme Court didn’t want to intervene with a ruling, it is still part of a conversation with the other branches of government and can send signals to them.

    2. When the people speak, is there a sense of recognition that can tell us if the people are speaking about the Constitution or just about what outcomes they want? Is there any space between these two?

      1. Is it possible for the people to be so out of whack with their desires that they desire something unconstitutional?

    3. The Supreme Court has to give reasons when it makes decisions. The people don’t have to give reasons when they do things to express preferences like elect a president. We want this statement of reasons.

  • Administrative and Regulatory Agencies  Through delegation of power. This issue doesn’t really come up until the New Deal.

    1. In Jones & Laughlin, the Supreme Court is soothed by the language that suggests the agency will consider a company’s interstate-ness on a case by case basis. Kind of looks like judicial review.

  • Different tools of Constitutional interpretation have different implications for what the Constitution will say and who should be interpreting it.

    1. Text  If we think of the Constitution as text, then people who are good at analyzing texts (e.g., lawyers, judges) should be interpreting it.

    2. Purpose  If we think of the Constitution as purposive analysis, is the court’s supremacy still so clear?

    3. Intent  Should we be trying to ascertain the intent of the Framers, even if we’re dealing with situations they never could have imagined?

    4. Morality/Politics  Do we want the courts meddling in these areas?

  • In an emergency, is the president entitled to think first of what the country needs and second of the Constitution?

    1. Lincoln in the Civil War (especially the Emancipation Proclamation)

    2. Truman in Youngstown (see especially Jackson’s concurrence)

  • Congressional sources of power:

    1. Commerce Clause

    2. 14th Amendment

    3. Spending power  power to tax and spend for the general welfare. That language is as broad as you get.

      1. United States v. Butler  Congress can tax, but the taxing has to be genuine revenue-raising and not regulation in disguise.

    4. Treaty power  Chinese Exclusion Cases

How should the Constitution be interpreted?

  • Is the Constitution meant to limit (McCulloch v. Maryland):

    1. the goals Congress can try to achieve, OR

    2. the means Congress can use to achieve those goals?

  • Important question: Is Constitutional interpretation the same no matter who is doing it?

  • The Constitution is a form of customary law refracted through a text over time (Kramer). It isn’t the text, but rather what it has been made into by different people who have worked with it over time.

  • Legitimacy of the Reconstruction Amendments

    1. The Reconstruction amendments were incorporated by steamrolling over the South. The north kept changing the rules of the game for re-entry into the Union (which is at loggerheads with the idea that secession never really happened because it was unconstitutional).

    2. Although the Reconstruction amendments may have been illegitimate at the time of their adoption, they should still be included in Constitutional interpretation today as part of valid jurisprudence because, taking Kramer’s view, they have been included for so long. People have structured their behavior around their validity, and so we cannot now invalidate them regardless of their legitimacy at the time of their adoption.

      • The Supreme Court basically stayed out of the question of whether the Reconstruction amendments were legitimate.

      • But the Supreme Court has interpreted the amendments as if they were legitimate and as if we the people adopted them, so there isn’t much room for legalistic debate.

    3. The Supreme Court eventually narrowed the power of the 14th Amendment and took away its federal enforcement power. Slaughterhouse Cases

  • Is there any leeway for how to interpret the Constitution in moments of crisis?

    1. Lincoln during the Civil War  Congress ratified his decisions, but he acted outside the bounds of executive power.

    2. Enforcement Acts  tried to allow federal prosecutors to go after private crimes in the Reconstruction era. These stretched the Constitution to its limits and were eventually overturned.

  • Colorblindness versus anti-subordination  Ways of understanding the laws during this period. Remember DM’s Venn Diagrams with the core and how the penumbra of protection extends.

    1. Colorblindness: If the races were reversed, would the case come out the same?

      • By making the law apply to both the majority and the minority, you give everyone a stake in the outcome. You protect the core by going broader.

      • Passing redistributive amendments might exceed Congress’s limits.

    2. Anti-subordination: The laws apply only to subordinated groups.

      • Whatever it would mean to apply discriminatory laws to whites, it wouldn’t be a badge of inferiority.

  • There must be room to disentangle oneself from the framers’ vision and adapt to changing circumstances. See stirring rejection of originalism in Home Building & Loan Association v. Blaisdell.

  • A means-ends analysis can be a way of smoking out whether Congress’s stated reason for doing something lines up with its real reason. Railroad Retirement Board v. Alton.

  • Where possible, the court must try to preserve a statute’s constitutionality. NLRB v. Jones & Laughlin Steel Corp.

Federalism and Federal Power Generally

  1. Concept of federalism

  1. Federalist system  National and state governments co-exist.

  2. Federal government has limited, enumerated powers.

    1. There is no federal, general police power. But under Art. I, § 8, Congress has the power to tax and spend for the general welfare.

    2. States have police powers.

  1. Necessary and Proper Clause

      1. Delegates broad power to Congress. McCulloch v. Maryland.

      2. If Congress seeks an objective that is within the specifically enumerated powers, then Congress can use any means that is:

  1. Rationally related to the objective Congress is trying to achieve; and

  2. Is not specifically forbidden by the Constitution.

  3. Specific language: Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution are constitutional.

  1. To pass muster, a congressional action must satisfy two tests:

      1. Must fall within some specific grant of power under the Constitution.

      2. Must not violate any specific constitutional provision.

Slavery and its Legacy (The Status of African-Americans in the U.S.)

  • Protection for slavery was found in 3 main places in the Constitution:

  1. Clause precluding Congress from regulating the international slave trade until 1808.

      1. Fehrenbacher called this a beacon of hope.

      2. It could also have been pro-slavery, if the slaveholders believed that the international slave trade would not be regulated even in 1808 or beyond. Also, the slaveholders knew they could import slaves from Virginia, so this may have been an easy concession for them.

      3. Ultimately, legislation was passed in 1807 to bar the international slave trade, but this met with little protest from the South. This was possibly because there was a net population gain among the slaves.

  1. 3/5 compromise for representation

    1. For taxation, the South argued that slaves were not as productive as free white workers and should count as less  3/5

    2. For representation, the South wanted slaves to count as full persons, but the north thought this would give the South overrepresentation in Congress  3/5

  2. Fugitive slave provision

  3. Guarantees were also found in more minor places:

    1. Guaranteed protection against insurrection (i.e., slave rebellion).

    2. Republican form of government

    3. Structure of Senate and Electoral College

  4. Remember: Even people who were anti-slavery were not talking about full equality for African-Americans. There was a lot of fear over what might happen if this subjugated population suddenly became free.

    1. The Fugitive Slave Clause was one way for the north to control the quantity of African-Americans in their midst.

  5. Protection of property: The north wanted to have their property protected as well, so they left it up to the legislature to determine what counted as property (i.e., slaves).

    1. The Antelope Case involved both liberty and property concerns, but, at the time, there was no hierarchy privileging liberty above property.

    2. A national environment was created in which all forms of property were protected.

  6. Emancipation Proclamation → freed the slaves. Slaves were property. If you could free this kind of property, why could you not seize land?

  7. During Reconstruction, there was debate over how to deal with protecting the rights of the freed slaves.

    1. Freedmen’s Bureau → Designed to affirmatively protect the interests of the freed slaves in new ways. Vetoed by Johnson

      1. Not overriding Johnson’s veto shows that the Congress was not willing to protect the rights of free blacks in all ways.

      2. The general policy of dealing with freed slaves rejects affirmative protection of rights.

  8. Symbolic Victories

    1. Do symbolic victories matter when the situation on the ground remains unchanged?

    2. The line between actual remedies and symbolic intervention against facial exclusions can always be attacked.

    3. Right to not have people of your race excluded from a jury on the basis of their race. This does not prohibit the use of other exclusionary measures like literacy tests, payment of poll taxes, etc. Strauder v. West Virginia

      1. Remember, when boundaries like this are applied even-handedly, they exclude poor whites as well.

      2. The court was willing to attack de jure racism, but not de facto racism.

    4. The Supreme Court’s statements that the Constitution is colorblind in cases like Strauder v. West Virginia and Plessy v. Ferguson ignores the fact the exclusions of blacks are badges of inferiority.

  9. Jim Crow was not inevitable. During the Redemption period, white elites thought it was unnecessary to pile humiliation upon humiliation on blacks. They wanted their votes and tried to convince the blacks that their former masters had their best interests in mind.

  10. Integration in schools was also not a goal for blacks at the beginning. It was known that if black children attended integrated schools, they would have language of inferiority spewed at them, and this was not desirable.

    1. This remained an issue in school desegregation after Brown v. Board of Education. Black teachers opposed speedy desegregation because they would lose their jobs (having been hired with far lower qualifications than their white counterparts) and see the black students they cared about be subjected to constant reminders of their supposed inferiority.

    2. Public transportation desegregation did not have the same downsides. There were important implications for human dignity, especially for blacks who were better off. There was no concept of class stratification for blacks like there was for whites.

  11. There were also economic anti-segregationist or pragmatic anti-segregationist arguments being made. The railroads, for example, didn’t want to segregate because it was more expensive for them in Plessy v. Ferguson.

  12. There were also arguments made by people who did not hate blacks in favor of segregation. They thought that it would minimize racial hatred and violence, although they were wrong about that. Segregation makes blacks easier targets.

  13. Civil Rights Cases  motivated by the lynching going on in the South and not by the exclusion from public places that was brought up in the suit. Murder is one area where states normally exercise their police power, but this was not happening. There is an issue in these cases of state action versus private action. The lynchings could not have been happening without complicity from the state, yet, technically they were private actions.

    1. The courts said that it was time for the African-American to cease being a special favorite of the laws.

  14. Remember: Anything that raises the status of whites without raising the status of other minorities creates a further gap between whites and minorities.

Status of Other Minorities

  1. Chinese

    • Criticized by Harlan in his dissent in Plessy v. Ferguson as being even more alien than blacks but still allowed to ride in the railcars with whites.

    • There were legitimate, non-racist reasons for saying that the Chinese were different from other immigrant groups  unlike other immigrants, the immigrants from China were almost exclusively male and did not participate in the “typical” American life centering around the nuclear family.

  2. Japanese

    • In Korematsu v. United States, the exclusion orders are defined in terms of what Congress can do under the war powers, not as racial issues.

  3. Mexicans

    • In Mexico, there was no distinction of rights between Mestizo and pure Spanish citizens. When the United States got territory from Mexico in the Treaty of Guadalupe Hidalgo in 1848, affected states imposed racial distinctions on their new citizens.

  4. Native Americans

    • Under Elk v. Wilkins in 1884, a single Native American could not repudiate his tribal affiliation and become a citizen of the United States.

    • Later, all Native Americans were made U.S. citizens.

    • Was Indian-ness a racial classification or a sovereign classification?

  5. Women

    • Under Minor v. Happasett in 1874, the 14th Amendment could not be used as the basis from granting women’s suffrage.

    • Some suffragettes took a racist attitude, questioning how black men could be given the vote but not white women.

  6. Mormons

    • Key case: Reynolds v. United States

    • The same rhetoric used about slaves was used in regard to Mormon wives.

    • The Supreme Court wanted to identify polygamy as Asiatic and African so they could call it barbaric and immoral.

  7. Filipinos and Puerto Ricans

    • In Insular, Harlan said these people could not be expected to assimilate. Had to weasel around Dred Scott to do this by saying that natural rights are for everyone, but artificial rights can be withheld.

  • Overall Point: To be an empire, we must be able to annex territory but resist incorporating those people into the U.S.

  • The New Deal tended to favor whites over minorities and males over females. Eleanor Roosevelt worked on minority issues, and sometimes she could convince FDR of her position and sometimes not. In the case of women, the epitome of the deserving poor was a retired, male worker, not a female.

Commerce Clause
Exam Tips:

  • If there is a question in which Congress is doing something, ask yourself, “Can what Congress is doing be justified as an exercise of the commerce power?” Most of the time, the answer is yes.

  • The Court takes a fairly deferential view of whether a particular action falls under the Commerce Power. So long as the regulated activity substantially affects interstate commerce, the regulation will be found to fall within the Commerce Power.

    • Even if a particular commercial activity being regulated seems to take place solely intrastate, the Court will usually find that when all similar activities are considered as a class, they have a cumulative effect on interstate commerce. Wickard.

    • Remember that Congress may ban/regulate interstate transport as a way of dealing with local problems.

    • However, look out for congressional regulation of activities that are not really commercial. Here, there is a much better chance that the Court will find the activity does not substantially affect interstate commerce. Cite to US v. Lopez in this situation.

  • Examples of situations where the regulation would probably be invalid as not substantially affecting interstate commerce.

    • Congress prescribes the curriculum public schools use.

    • Congress makes it a federal crime to commit a gender-based violent crime against a woman. Morrison.

    • Congress bans marriage under the age of 18.

    •  But if there is a jurisdictional hook, the regulation is probably okay.

  • Be alert for fact patterns where Congress is regulating the states. Such regulation raises a Tenth Amendment issue.

    • So long as Congress has merely passed a generally applicable law, this law can apply to the states just as it does to private individuals and there is no 10th Amendment violation.

    • But Congress may not directly compel the states to enact or enforce a federal regulatory program. Printz. When Congress does this, it violates the 10th Amendment.


  • Comes from Article I, § 8.

  • Test for commerce power: A particular Congressional act comes within Congress’s commerce power if both of the following are true:

  1. The activity being regulated substantially affects commerce, and

  2. The means chosen by Congress is “reasonably related” to Congress’s objective in regulating.

  • Four broad categories in which Congress can use the Commerce Power:

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