Constitutional law outline part I: structure of government judicial review and constitutional interpretation

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December 2008




  1. Con law issues do not come up frequently (doctrine of Const avoidance). Still, Con law gets a lot of attention bc:

    1. Foundation of public law – framework of govt

    2. Regulates relationship bwn citizens and govt

    3. Expression of popular ownership of govt

    4. Declaration of fundamental of principles – avg Americans look to these principles

  1. History of Constitution

    1. Preceded by articles of confederation – 1st attempt at writing const

      1. Ratified 1781 – ctry called USA (states is the emph)

    2. Articles = a form of treaty among many small nations

      1. Cong – no power to tax

      2. Unanimous consent to ratify amendment

    3. Const of US born in illegality

    4. Meeting – purpose was to fix articles, but they actually rewrote. New things:

      1. Art 1- Cong has power to tax, cong has power to regulate interstate commerce

      2. Art 2 – creation of executive (not present in A of C)

      3. Art 3 – national judiciary

  1. Why do we need a Const?

    1. Pre-commitment: allows govt to commit itself to principles/rules ex ante

      1. Prevents these rules from being changed

      2. Provides uniformity (historical, geographical), enables reliance (law is predictable) by keeping law stable

      3. Articulating fundamental law/principles

      4. Way of limiting govt powers

  1. Themes:

    1. Judicial policing v judicial deference (political process as a check)

    2. Internal v external change of ct

      1. Changes governed by internal deliberations vs caused by external political pressure

        1. Const moment theory (Ackerman)

        2. Which is preferable?

        3. Consider Roberts article re unanimity (see controversial decisions like Ht of Atlanta)

          1. Decision more credible, more deliberation, harder to overturn (stability), integrity of ct

    3. Judicial supremacy vs departmentalism (deference to const of acts of other branches)

    4. Formalism v functionalism (rules v standards)

    5. Counter-majoritarian difficulty and modalities as a basis of legitimacy

  1. Modalities of Constitutional InterpretationPhilip Bobbit (Underlying question: Why is the constitution authoritative? Because it was a contract?)

      1. Historical interpretation: What did the Framers think about an issue?

        1. Advantages: In theory historical interpretations of the constitution are verifiable, fixed, stable (change can only result from constitutional amendment rather than judicial interpretation), and politically accountable because judges cannot make policy judgments.

        2. Disadvantages: On the other hand, the founders didn’t necessarily have a unified vision and refused to publish notes from the Constitutional Convention (fear of judges using their ‘intentions’ as a basis for future law?). Besides, circumstances change and the Founders couldn’t possibly have foreseen or contemplated many issues today

      2. Textual interpretation: From the perspective of the average person, what do the WORDS of the Constitution mean?

        1. Advantages: easily verifiable, disciplined, structured, the limited nature of a textual inquiry constrains judicial interpretation

        2. Disadvantages: meaning is necessarily the result of both the text and human interpretation, constitutional provisions are often abstract and vague

      3. Structural interpretation: Can you infer relationships between the structures set up in Constitution? (federalism cases)

        1. Advantages: holistic reading of the Constitution

        2. Disadvantages: requires extensive judicial inference, inconsistent

      4. Doctrinal interpretation: Apply rules based on precedent

        1. Advantages: predictability, protection of reliance interest

        2. Disadvantages: difficult to change wrongly decided cases, rules can be cumbersome and turn out to be unworkable (doctrinal erosion described in Casey)

      5. Ethical interpretation: Derives rules from moral commitments of the American ethos that are reflected in Constitution. For instance, a American may be ethically committed to the idea of limited government. (substantive due process?)

        1. Advantages: flexible (the Constitution is treated as a living body of laws meant to evolve over time), law expresses social moorings so that the Constitution remains relevant

        2. Disadvantages: high level of judicial discretion, unpredictable, may leave minorities unprotected – Why should unelected judges determine something as amorphous as the American “ethos”?

      6. Prudential interpretation: Cost-benefit analysis. (Ex: in wartime, comparing extent of civil liberties vs. national security interests).

        1. Advantages: FLEXIBLE. There is often a disconnect between what the constitution requires and what JUSTICE requires, because the constitution was a compromise and compromises are not necessarily JUST.

        2. Disadvantage: balancing tests may be inherently subjective and allow too much room for judicial discretion.

  1. Judicial Review: To what extent should the federal judiciary review the constitutionality of acts of Congress?

    1. Arguments in FAVOR of extensive judicial review

      1. Judicial review is necessary to protect fundamental values, American ethos, etc.

        1. Federalist #78: “Where the will of the legislature declared in its statutes, stands in opposition to that of the people, declared in the constitution, the judges ought to be governed by the latter, rather than the former. They ought to regulate their decisions by the fundamental laws.” In other words, the constitution is a sovereign act of the people, while the legislature is an agent of the people = sov wins

      2. Representation theory of judicial review: The Supreme Court must protect the integrity of the democratic process by policing the mechanisms by which the system seeks to ensure that our elected representatives will actually represent). The political branches are far from paradigms of democracy – by compensating for defects elsewhere in the system, the Court may actually contribute to the overall representativeness of the government.

        1. Leg: interest group politics, decisions by unelected staff (no accountability), power of lobbyists, electoral college, myriad federal agencies, etc.

      3. Judicial review IS democratic. Over the history of the court, on the average one new justice has been appointed every 22 months. Thus a president can expect to appoint about two new justices during one term of office; and if this were not enough to top the balance on a normally divided Court, he is almost certain to succeed in two terms. Therefore the policy views dominant on the court are never for long out of line with the policy views dominant among the lawmaking majorities of the US.

      4. Minority rights!, Pol process theory → ct protects frdm of spch, assembly → protects pol process for minorities, protects religious/racial minorities

      5. Philosopher kings: Courts are better suited to interpret the constitution than legislators. “Philosopher-king” approach (Bickle), able to deliberate carefully.

      6. Uniformity and predictability in the law: courts should review state legislation to ensure that the Constitutions has the same impact everywhere.

    2. Arguments AGAINST judicial review

      1. No provision of the Constitution explicitly authorizes the federal judiciary to review the constitutionality of acts of Congress.

      2. Judicial review is undemocratic. When the Supreme Court declares unconstitutional a legislative act or the action of an elected executive, it thwarts the will of representatives of the actual people, exercising control against the will of the majority.

    1. Marsh v. Chambers, 1883

      1. Decision: Nebraska’s government funding for chaplains is constitutional because of the "unique history" of the United States. “The use of prayer is embedded in the nation’s history and tradition.” That the practice of the Nebraska legislature is consistent with the framers’ intent is proven by their use of chaplains… Because of the principles upon which the nation has developed, religion has become part of the fabric of society. The offering of the prayer is a tolerable acknowledgment of beliefs widely held among the people of this country. The public payment of the chaplain is historically allowable because it was done by the Continental Congress years earlier. Because the practice had been done for many years, it had become a communication of shared values rather than a decidedly religious practice.

      2. Interpretation: The Court placed a heavy reliance on looking to history and the intent of the framers in reaching this decision.

    1. Marbury v. Madison, 1803 – Instituted power of judicial review

      1. Issue: Does the court have jurisdiction to issue mandamus?

      2. Decision: The Judiciary Act of 1979 is inconsistent with Art. 3 of the Constitution. Judges cannot assume that all of Congress’s laws/statutes are all constitutional.

        1. Madison interpreted the constitution to give the court “original” jurisdiction only in circumstances explicit in the constitution. In all other cases the court only has appellate jurisdiction.

        2. Technical arguments for judicial review:

          1. “Arising under” language: judicial power is extended to cases arising under the laws of the United States.

          2. Surplusage: the fact that there is a list means that the drafters wanted to be specific about who fell within the court’s jurisdiction, wanted to create an incentive for Congress to create inferior courts with jurisdiction to address other parties.

          3. “Oath argument”: not definitive proof because many people take the oath to defend the constitution!

          4. Supremacy clause argument: the Constitution is supreme to all other statutes.


    1. Darby I: is Congress merely regulating “instrumentalities”, i.e. the channels of interstate commerce?

If not –

    1. Darby II: is Congress regulating an intrastate activity that in and of itself has a substantial impact on interstate commerce?

If not –

    1. Wickard: is Congress regulating an activity that IN THE AGGREGATE could have a substantial impact on interstate commerce?

MOTIVE of Congress in passing a statute DOES NOT MATTER!!!!

    1. Darby I: is Congress merely regulating “instrumentalities”, i.e. the channels of interstate commerce?

If not –

    1. Darby II: is Congress regulating an intrastate activity that in and of itself has a substantial impact on interstate commerce?

If the activity is ECONOMIC – apply rational basis review.

If the activity is NON-ECONOMIC, heightened review.


    1. The most significant power of Congress is the power to regulate interstate commerce.

      1. First articulation of this power came in Gibbons v. Ogden, where Marshall defined commerce broadly as commercial intercourse. Dicta suggested that the commerce clause also reached the concerns internal to states.

      2. In the late 1890’s, formalist approaches to the Commerce Clause modified Marshall’s expansive view. The Court created various categories of commerce, differentiating between manufacturing and commerce, as well as direct and indirect effects on commerce.

      3. Functionalist theories followed as a response, asking instead:

        1. Does the regulation have a justified relation to the commerce clause?

      4. Turning point: 1937 witnessed an about-face on New Deal regulation

        1. Key questions: Was this the result of external or internal events? Roosevelt’s court-packing plan? Was this something the court was engineering itself?

          1. Externalists see law as a product of external forces, while internalists suggest that law has its own integrity.

      5. Basic doctrinal test that prevailed until Lopez: Congress can regulate the –

        1. Darby I: Channels of interstate commerce;

        2. Darby II: Intrastate commerce with a substantial impact on interstate commerce;

        3. Wickard: Local activity, that in the aggregate, has a significant impact on interstate commerce.

    2. Civil Rights cases

      1. Full realization of rational basis review for commerce cls statutes – regulation valid as long as there is some rational connection to interstate commerce

      2. Ct abandons the field of policing cong re commerce cls; jdional hook can easily circumvent ct

      3. Cong passes tons of leg (crim law) based on commerce cls

    3. The Lopez surprise

      1. Formalism is back – ct policing cong w formal boundaries on use of commerce power (econ v non-econ)

      2. Econ activity – defer to cong judgment; non-econ – strict review

      3. Morrison – cong cannot aggreg non-econ activity to meet the subst effects standard

    4. Raich – less power to the Lopez limits – bc ok as long as part of grand reg scheme

    5. Determining factor is how ct frames the regulation. OK if framed as:

      1. econ activity

      2. part of larger reg scheme

        1. Criticized for giving ct power to make arb distinctions

    6. Policy questions – ct overstepping bounds vs handwringing over nought (bc anything can slide through under commerce cls, ie jdional hook)

    7. Conclusion – broad cong power to regulate under commerce cls – the federalism revolution was not much of a revolution

  1. 4 key doctrinal issues

    1. Formalism/ Functionalism: Is the particular subject of congressional regulation “interstate commerce” as distinguished from some local activity?

      1. Manufacture v. commerce

      2. Direct v. indirect effect on commerce

    2. Are the purposes of a regulation consistent with the purposes for which Congress was delegated the power to regulate interstate commerce?? Marshall’s pretext statement in McCulloch: “Should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government, it would become the painful duty of this tribunal to say that such an act was not the law of the land.”

    3. Federalism: Does a particular instance of Congressional regulation of interstate commerce run afoul of the reservation of powers to the states recognized by the 10th Amendment?

    4. Representation theory of judicial review: Why not allow the political branches to determine the boundaries of federalism? Why should the court police the Congress’s exercise of the commerce power? Do we need the court to keep power balanced between the Executive and Congress?


    1. Pretext arguments (McCulloch)

    2. 10th Amendment, federalism

    3. Substantive due process

    4. States qua states

    5. Commandering

    6. Formalist categories

  1. Commerce Clause I: McCulloch v. Maryland: Under our Constitution, the Federal Government is one of enumerated powers.

    1. McCullouch v. Maryland, 1819

      1. Facts: Congress chartered the Second Bank of the US in 1816, with branches in many states. In 1918, the Maryland Assembly enacted a law requiring all banks not chartered by the state to pay an annual tax of $15,000. The only bank that fit this description was the Baltimore branch of the Bank of the US. Problem: Power of taxation is given to both states and federal gov’t simultaneously.

      2. Issues:

        1. Does Congress have the power to incorporate a bank?

        2. May Maryland, without violating the Constitution, tax a branch of the Bank of the US?

      3. Maryland’s arguments

          1. Enumeration: The federal gov’t doesn’t have general powers, it only has the powers enumerated in art. 1, sec. 10 of the constitution. In contrast, states have general powers, The 10th amend says that anything not given to Congress in art. 1 is a state power (as long as its not prohibited to states)

          2. Andrew Jackson’s Veto Message 1832: It cannot be necessary to the character of the bank as a fiscal agent of the Government that its private business should be exempted from that taxation to which all the State banks are liable, nor can I conceive it proper that the substantive and most essential powers reserved by the States shall be thus attacked and annihilated as a means of executing the powers delegated to the federal government.

          3. Maryland argues that the power of taxing is an absolute power, which acknowledges no other limits than those expressly prescribed in the constitution, and like sovereign power of every other description, is trusted to the discretion of those who use it. Maryland also argues that taxation does not unavoidably destroy, only if the power to tax is carried to excess.

      4. Decision

        1. YES! The act of incorporating the bank is constitutional.

      5. RULES

        1. Reasonableness: As long as the legislation serves an enumerated power, all means that are appropriately adapted to that end are presumed to be “necessary” and are Const (not limited to those means that are absolutely necessary and cong decides what is nec) Two instances when the court would strike down a law made by Congress: If it is prohibited by the Constitution; OR It if is passed under the pretext of executing the laws but actually made to accomplish goals not entrusted to the gov’t.

        2. State law is void under supremacy clause if it would retard, impede, burden, or otherwise stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Cong in enacting the fed law

      6. Rationale

          1. Sovereignty comes from the PEOPLE: Maryland argues that the Constitution does not emanate from the people, but as an act of independent and sovereign states. However, the people accepted a federal government, and their act was final, binding the state sovereignties. People act within their states, but the actions of states do not cease to be measures of the people themselves or become measures of the State governments. The sovereign states derive their powers directly from the people.

          2. Implied powers argument: Fed government was granted ample powers in Constitution and must be assumed to have also been given the MEANS to execute these powers. The Bank of the US is a means, not an end. (the power to create a corporation is not a great and substantive power) The Federal gov’t has the power to lay and collect taxes, to borrow money, to regulate commerce, conduct a war, etc. A gov’t with such ample powers must also be entrusted with the MEANS of to execute these powers. “Where the end is legitimate and within the scope of the Constitution, all means that are appropriate and plainly adapted to that end that are not prohibited and do not conflict with the letter and spirit of the Constitution are constitutional.”

            1. Necessary and Proper Clause: One of Congress’ powers is that of making “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 US”. Now, the constitution suggests a weaker definition of ‘necessary’ since many powers of government were created constitutionally out of basic necessity, not strict necessity. Maryland’s interpretation of the “necessary clause as “indispensable” would almost annihilate the legislature’s power to select its means. A federal bank may be necessary to borrow money, regulate commerce, collect taxes, etc.

            1. Textual interpretation: This could not have been intended since, first, the clause is placed in the ‘powers’, not ‘limitations’, section, and second, the clause’s terms purport to enlarge, not diminish powers. Besides, the articles of confederation used to have word “express” powers in Art. 1, Section 8 of Constitution. The word “express” was removed.

            2. Nature of the Constitution: The Constitution is a reference point through which people govern, it is not a legal code. p.43 “It is a constitution we are expounding”.

        1. NO to Maryland’s ability to tax a federal bank!

          1. Democratic accountability. There is ordinarily the possibility of voting legislators out of office who impose oppressive taxes. But here, Maryland is taxing a federal entity, and it is only the voters of Maryland who can constrain the tax. People from other states should not be expected to trust Maryland not to use the power of taxation to control the operations of the bank. Representation theory of judicial review – the Court must keep the process of representation OPEN.

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