1、Constitutional Law OutlineSpring 2006Professor Noah FeldmanIntroduction: Who are “We the People”? (Legal vs Political Registers)1. Dred Scott v. Sandford (1857), 183-211 (14th Am written to overrule this case)a. Question whether any negro descended from slaves can be a citizen of the US in the Const
2、itutional sense, so that they can sue in the US courts? Sub question of whether one state can confer US citizenship on a freed slave? b. Majority (Taney):i. Negroes were not intended to be included as citizens by the Constitution (based on a constrained intentionalist reading, as if the courts hands
3、 are tied)ii. No state can introduce a new member into the US citizenry. People recognized as citizens of the States when Constitution was adopted became US citizens, but this did not include slaves who were property. States surrendered the right of naturalized to the federal govt, and only foreign-
4、born persons can be naturalized. c. Dissent (Curtis):i. People born free as citizens of a State are also US citizensii. However, people can be citizens and still be denied rightsd. Commentsi. Became symbolic of irreconcilable division between North and Southii. Abolitionist William Lloyd Garrison de
5、nounced the Constitution as a “covenant with death and an agreement with hell”the founders were racist, so this is all morally illegitimate. Argument for dissolution of union. iii. Frederick Douglass went from Garrisons view to rejecting the conventional interpretation that the Constitution protecte
6、d slaveryargument for preserving union (4 yrs before civil war)1. Acknowledged that the framers accepted slavery2. But why look at unwritten intent and secret motives when interpreting the Constitution? Look to the text for the meaning. 3. Points out that “we the people” does not specify white or ci
7、tizens or privileged class. 4. Not adding a single word-protestant notion of Sola Scriptura-only the text itself. Who cares what they intended and if it was euphemistic? We can cleanse the Constitution and redeem it by bringing fair notions to it.iv. Taney brings in American Indians to contrast with
8、 blacks. Indians are naturalizable, b/c they were encountered when they already had tribes and laws set up to govern themthey were free. Whereas blacks were seized and sold. Relies on social convention that blacks are inferior to Indians. v. If “People” doesnt include blacks, then why does Congress
9、not limit naturalization to white persons? Why does being born under another govt matter? Taney argues no black people are here except those that came as slaves, so its not so much race as it is descendency. vi. Natural rights vs statutory/constitutional legally-created rights1. Const: life, liberty
10、, pursuit of happiness (property) (5th Am)2. Natural: philosophical, but this opinion seems to think Dred Scott does not have any natural rights3. Idea that Constitution and courts do not rule to protect natural rights, so if the result is morally wrong, its not our problem. We only worry about lega
11、lly-created rights. vii. How bound should we be today to what the framers of the Constitution intended hundreds of years ago? Judicial Review 1. Marbury v. Madison (1803), 81-96a. Background of outgoing president appointing justices of the peace (Marbury), but not all appointments were delivered bef
12、ore the new administration took office (Madison, Sec of State). No one was sure yet how judicial review would work. b. Jefferson (incoming president, Republican) pitted against Adams/Marshall (outgoing Federalists). Court was Federalist. c. Questions:i. Does Marbury have a right to his commission? i
13、i. If he has a right thats been violated, do the laws afford him a remedy?iii. If there is a remedy, is it a mandamus from the Supreme Court? d. Court holds: i. Marbury has a right to the commission, which is complete when signed by the president and sealed by the secretary of state. Transmission an
14、d acceptance is not a part of the commission; right to the office rests with the appointee and the appointment is not revocable by the president. So, withholding the commission violates a vested legal right. (Federalists win) ii. Since a duty assigned by law on which individual rights depend, Marbur
15、y has a right to a remedy under the laws of the US. The refusal to deliver the commission is a violation of his right, and the law affords a remedy for that. (Legal Realist pointrights are useless without a remedy. This construct becomes useful later on. Maybe in Brown?) iii. Mandamus is the proper
16、remedy, but the Supreme Court is given original jurisdiction only over certain things, and this case comes under its appellate jurisdiction, which cannot allow a writ of mandamus. An act of the legislature, repugnant to the Constitution, is void. (Republicans win on a technicality of jurisdiction)1.
17、 Judicial review of other branches is a necessity because theres no other way to decide this case except to declare whether the Constitution or this law wins. Even though the Constitution doesnt expressly give the power of judicial review, we know it exists because its necessary for the court to fun
18、ction. 2. Based on the structure/text of the Constitution. Formalistic legal reasoning of deductive character. e. Resulting Theories:i. Departmental Theory: The court holding the law invalid only binds the parties of this case and the law still may be valid in other branches or in other circumstance
19、s. ii. Modern/Standard View: The entire law is invalid for everybody if the court finds it invalid. Other branches and people can rely on the courts pronouncement b/c if it comes before the court again, theyll do the same thing they did last time. This means the “law” is whatever outcome you can get
20、 in court. f. Court doesnt have the power to enforce its decisions, so it is insecure, wants to retain its legitimacy, and proceeds cautiously. Caution in Marbury is to let the Republicans win, and Marbury doesnt get his commission. Yet, even while the Federalists lose, the court expands its power b
21、y giving itself judicial review. g. What law does the Sup Ct think Congress didnt have the power to pass?2. Adjudicative Legitimacy, 96-102a. Countermajoritarian Difficultyi. Judicial review itself is counter-majoritarian. When the Supreme Court declares unconstitutional a legislative act or the act
22、ion of an elected executive, it thwarts the will of representatives of the actual people in the present, exercising control against the prevailing majority. In that sense, judicial review is undemocratic. ii. Although people in the past developed decisions that govern us presently, fluctuating curre
23、nt majorities have differing opinions. To place a high value on stability is then a countermajoritarian problem also. However, a representative majority has the power to accomplish a reversal. iii. Other two branches are elected and politically accountable. Court intervening then looks suspicious. C
24、onstitution just guarantees a republican (representative) govt, not a democracy (where majorities always win). iv. Troubling to allow judicial review of the statutes enacted by the current “we the people” and have them trumped by a dead “we the people” that wrote the Constitution. Anyway, you could
25、amend the Constitution if you dont like it (though it does take a super-majority). Or you can just interpret the constitution as you goalthough this reshapes the polity, not just individual cases. b. Justifications for Judicial Reviewi. Supervising Inter- and Intra-Governmental Relations: federal ju
26、diciary oversees relations between federal and state govts and also between the federal branchesii. Preserving Fundamental Values: idea that govt should not only serve immediate needs but also serve certain enduring values. Of all the branches, the courts are most capable of dealing with principled
27、matters. iii. Protecting the Integrity of Democratic Processes: representation-reinforcing judicial review protects three sorts of interests1. Protects freedom of speech and press2. Protects voting rights3. Protects minorities from prejudicesc. Countermajoritarian Difficulty Challenged: Isnt our who
28、le system pretty anti-majoritarian? i. Senate gives equal voting rights to each state and lets majorities block filibustersii. President elected by Electoral Collegeiii. Plus, maybe its not even majority vs minority but coalitions of minorities that succeed in defeating other minorities3. Baker v. C
29、arr (1962), Blackboarda. Tennessee voters claimed the apportionment of their state assembly violated equal protection rights b/c there had been no reapportionment for 60 years even though the population had grown and redistributed since then. b. Question: Whether this case presents a “political ques
30、tion”c. Majority (Brennan): No. This case presents no nonjusticiable “political question.” And it does not rest on or implicate the Guaranty Clause. i. Political question cases depend on the interplay between branches of the federal govt, not between the judiciary and the states. This case is about
31、the consistency of state action with the federal constitution. The lower court can hear the case on its 14th Amendment claim, so remanded and reversed. Ultimate outcome: no order to reapportionii. Guaranty Clause (Article IV) cannot be used as a means of invalidating state actioniii. Political quest
32、ions are characterized by:1. Constitution specifically gives the authority to someone else other than the court2. Lack of judicial standards for resolving the case neutrally3. Resolution of the case requires a policy decision outside of the courts realm of discretion (such as how should seats be app
33、ortioned and who gets to decide this?)d. Dissent (Frankfurter): Yes. Political question cases are those that do not lend themselves to judicial standards and remedies. Tennessee asks the court to choose between competing bases of representation. Allowing the courts to get involved will create tensio
34、n in federal-state relations and is not the place of the judiciary. e. Class: In theory, political question lets the court avoid a decision. Court could have done the same thing with conflicts between laws and Constitution instead of declaring their authority to reviewjust announce a conflict and ba
35、ck down to let someone else fix it. 4. Limits on Federal Judicial Power, 730-35a. Jurisdiction Strippingi. Congress has power to define the shape and scope of federal courtsii. Supreme Court is set out in Constitution, but not how many justices or whether they hear cases en banc or in panels or alto
36、getheriii. Congress can redefine or make exceptions to the Sup Cts appellate jurisdictioniv. Congress can abolish the lower federal courts entirelyb. Standingi. Litigants in court must assert their own rights, not those of others. Must be himself “injured in fact” by the particular defendant. c. Pol
37、itical Questionsi. Boundaries of this doctrine defined in Baker v. Carr with six factors (pg 733 inset paragraph)The Constitution as Blueprint: Powers of Congress1. McCulloch v. Maryland (1819), 17-30 and 44-49a. Background, 6-16i. Early constitutional question of whether chartering a national bank
38、was within Congresss Article I powersii. The first banks charter expired and a charter for a second Bank of the United States was approved in 1816. It was 80% private and 20% govt owned, and acted as the govts primary fiscal agent. iii. States were intensely hostile and enacted nearly annihilative t
39、axes on the bankb. Maryland imposed a $15,000 annual tax on banks in the state not chartered by the state legislature. McCulloch was the local cashier for the US Bank and refused to pay the tax. Maryland sued him in their state courts to recover the tax. c. First Part: i. Questions:1. Does Congress
40、have the power to incorporate a bank? 2. What is the extent of the powers granted to the federal govt by the people? 3. Whether this particular power (to establish a bank) has been delegated to the fed govt or prohibited depends on a fair construction of the whole constitutionii. Holdings:1. Congres
41、s already used this power once without substantial opposition. The people have given their sovereignty to the federal constitution/govt, and the fed govt is one of the enumerated powers. 2. Fed govt is supreme in its sphere of action. Even though power to establish a bank/corp is not an enumerated p
42、ower, nothing in the constitution excludes incidental/implied powers. 3. To have a detailed enough constitution for ever contingency would make it a legal code, too complex to be understood by the public. So only its outlines are marked, by nature. We must not forget that it is a constitution we are
43、 expounding. a. Although no direct power for a bank, we find great powers to lay/collect taxes, borrow money, regulate commerce, declare/conduct war, and raise/support armies. Bank is a means of executing these ends. Powers given to govt imply the means of execution, and the govt with the duty must
44、be allowed to select the means. 4. Creating a corporation pertains to sovereignty. But it is just a means, never the end. But we dont even have to read between the lines for this ideaits found in the power of making “all lawsnecessary and proper for carrying into execution the foregoing powers.” a.
45、Maryland says the clause only means Congress can make laws, but thats too obvious to even state, so it must mean what the US says it does. “Necessary” is not meant to be a restriction on the right to make lawsjust implies any means calculated to produce the end. b. Plus, the clause is placed among C
46、ongresss powers, not posed as a restriction on its powers. 5. If we want the Constitution to endure, we must allow it to adapt to the crises of human affairs. Without flexibility to adapt, it would be a legal code. 6. Limit on fed govt power: “Let the end be legitimate, within the scope of the Const
47、itution, and all means which are appropriate, plainly adapted to that end, not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” The govt has power to do anything reasonably calculated to produce a lawful and legitimate result. 7. An act to incorporate the
48、Bank of the US is a law made in pursuance of the constitution and is part of the supreme law of the land. d. Second Part: i. Questions: Whether Maryland may tax the US Bank branch without violating the constitution? ii. Holdings: 1. Constitution and federal laws are supreme and control the constitut
49、ions and laws of the states. Federal power to create the bank implies a power to preserve, and state attempts to destroy are thus unconstitutional since they conflict. 2. Original right of taxation remains with the states as an incident of sovereignty, but state sovereignty does not extend over federal action. Federal govts powers are not given by the people of a single state, so the people of a single state cannot confer a sovereignty over the federal govts powers. People in another state wouldnt entrust their rule to Maryland. So states can tax thei
