Constitutionalism and judicial review 2 Background 2

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Constitutionalism and judicial review 2

Background 2

Marbury 3

Justifying Judicial Review 4

Constitutional Interpretation: McCulloch and Heller 6

Federalism 14

Introduction to federalism 15

History of Commerce and the New Deal switch 16

Commerce and enforcement powers 20

State sovereignty and horizontal federalism 24

Separation of powers 26

Madisonian theory and the Youngstown framework 26

The emergency constitution 29

War and executive power post-9/11 31

Equal protection 36

Slavery to Reconstruction; incorporation 36

The Civil Rights Cases and the “state action” problem 39

Plessy and Brown 44

Levels of scrutiny and Carolene Products theory 49

The Discriminatory Purpose Requirement 53

Affirmative action 56

Gender discrimination 59

Fundamental rights 64

Rise and demise of Lochner 64

Privacy: contraception and abortion 67

Abortion funding, restrictions, and unconst. Conditions 70

Sexual orientation 73

Death 75

Constitutionalism and judicial review


  1. Functions of constitution

    1. Create national government and separate powers

    2. Divide power between federal and state governments

    3. Protect individual liberties

  2. Why a constitution?

    1. Difficult to change and might not reflect the views of that moment’s majority

      1. Prevents tyranny of the majority

      2. Protects the rights of the minority from oppression by social majorities

    2. Attempt by society to limit itself to protect values it most cherishes

    3. Anti-majoritarian document

    4. Has it succeeded in restraining the majority, especially in times of crisis?

  3. Substantive DP analysis and its doctrinal structure--related to when strict scrutiny applies and how it relates to the interest balancing analysis we talked about in these opinions. I should have been more clear about this in class, so it's largely my fault; but also in part the Court's fault for not being consistent or transparent about this.

    1. So the "official" doctrine, to the extent anyone can figure it out, is that burdens on fundamental rights trigger strict scrutiny (whereas burdens on nonfundamental liberty interests trigger only rationality review, as in Williamson v. Lee Optical and similar cases).

    2. That said, in Lawrence, the Court never says what level of scrutiny its applying, and one could read the opinion as following Romer in rejecting even the legitimacy of the government's moral interest in regulating sodomy on the lower standard of rationality review. But one could also read it as applying heightened scrutiny to the infringement of a fundamental right to something--gay sex, same-sex intimate relationships of which sex is a part, or the like (as with Griswold, the scope of the right is kind of nebulous).

    3. To make matters more confusing, in Lawrence and Roe and other cases the Court analyzes fundamental rights claims by balancing the individual's liberty interest against the government's interest in regulating. This balancing analysis is probably best understood as deriving the existence and scope of a fundamental right (of the sort that will trigger strict scrutiny if burdened). But the Court then seldom goes on to apply strict scrutiny as a separate, second step. Instead, as in Roe, the Court builds the state's compelling interests into the definition of the right. E.g., if the state has a compelling interest in preventing post-viability abortions, then the abortion right simply "ends" at viability. An alternative, and perhaps more doctrinally correct, way of reaching the same result would be to say that a woman has a fundamental right to abortion even post-viability, but government can overcome strict scrutiny by asserting its compelling interest in protecting fetal life post-viability.

    4. The end result is the same under either the one-step or two-step analysis, but the two-step approach more clearly separates the "does a fundamental right exist/does strict scrutiny apply" question from the "does government have a compelling enough interest to meet the strict scrutiny standard" question.

    5. Then there is a third question in some of these cases, which is whether what the government is doing "infringes" the relevant right. This question goes in the middle of the other two: First we ask whether there is a fundamental right of whatever size and shape; then we ask whether the government is infringing it; and finally we ask whether, if yes to the first two questions, government can justify its infringement by offering a compelling interest that meets the standard of strict scrutiny. This middle question is the one gets answered with the "undue burden" standard in Casey and the unconstitutional conditions analysis in the selective funding cases.

  4. Rational basis review: The idea behind rational basis review is that the judiciary must show deference to the elected representatives of the people. A respect for the democratic process requires that the Courts uphold legislation if there are rational facts and reasons that could support Congressional judgment, even if the Justices would come to different conclusions.


  1. Marbury v. Madison

    1. Background:

      1. Federalists (Marshall): strong national government

      2. Republicans (Madison): strong states’ rights

      3. Outgoing federalists packed the courts to attempt to shield them from Republican influence

    2. Parties: Madison, incoming President Jefferson's Secretary of state, and Marbury, appointed judge under outgoing John Adams

    3. Material Facts: Marbury wanted his commission as justice of the peace delivered, which had been issued under Adams but held up under Jefferson.

    4. Question Presented: Does Marbury have a right to this commission? If so, do the laws of the country afford him a remedy? If so, is mandamus issuing from this court?

    5.  Holding: Law cannot override the constitution.

      1. Yes, right under act of congress from 1801. To withhold commission is violative of a vested legal right.

      2. Having legal title to the office, he has a right to the commission, the refusal to deliver is a violation for which the laws of this country afford him a remedy.

      3. § 13 of the Judiciary Act of 1789, giving the Court authority to issue writs of mandamus to an officer, was contrary to Article II Section 2 of the Constitution as an act of original jurisdiction, and therefore void.

        1. Issuing mandamus orders is type of original jurisdiction

        2. Statute conflicts by granting court power to hear type of original jurisdiction case that congress doesn't authorize them to hear

        3. Deliberately ignores the part of Article 3 that says SCOTUS will have jurisdiction that Congress gives it (with such exceptions as the Congress shall make--Congress could transfer from appellate to original)

    6. Rationale: Constitution: SCOTUS has original jurisdiction in cases affecting public ministers, constitution for the government of courts. Marshall used this case as a vehicle to expand the power of the court.

    7. Legacy: establishes the power of judicial review (the power of the courts to hold legislation unconstitutional)

  2. Power of judicial review

    1. No justification in Article III

    2. Marshall uses other sections of the constitution to give strength to the idea of judicial review

      1. Oath requirement: judges take oath to uphold Constitution

      2. Supremacy clause: if there were a dispute about the constitution, judges would have to resolve it anyways

      3. Arising under: granting jurisdiction would be meaningless it SCOTUS couldn’t rule on the constitutionality of laws

    3. No point in having a constitution if there is no court to enforce it

    4. Why judiciary as enforcer?

      1. Whatever makes people comply with what judges say as law will make them pay attention to what judges say about the Constitution

      2. Can’t be the legislature—they enact the laws, and someone has to check them

      3. Can’t be the executive—they can make executive orders, and someone has to check them

      4. Court not politically accountable

        1. Immune to the political pressures influencing the president and legislature

        2. Give the power to the branch who can do the least harm if they abuse it: Courts have limited powers

  3. Limits to judicial review

    1. Marshall anticipated judicial review would be limited to cases concerning the judiciary

      1. Denial of jury rights

      2. SCOTUS jurisdiction

      3. Only exercised in cases of clear constitutional violation

Directory: sites -> default -> files -> upload documents
upload documents -> Always put things in threes (eskridge has ocd) I. Procedural Due Process and Reading a Case
upload documents -> Federalism – The Structure of Government
upload documents -> General Info About Property law
upload documents -> Con law professor Larry Sager Fall 1995 I. U. S. Term limits V. Thornton
upload documents -> Property with Professor Vicki Been
upload documents -> Property Outline – Professor Upham, Spring 2000
upload documents -> Constitutional law outline part I: structure of government judicial review and constitutional interpretation
upload documents -> Complex federal investigations
upload documents -> Foundations: Agency Law Introduction to law of enterprise organizations
upload documents -> Pricing v. Sanctions

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