CONSTITUTIONALLAWOUTLINE-USCGouldSchool…

1、JUDICIAL REVIEW1. Constitutional Basisa. Article III: 2: The judicial power shall extend to all cases arising under this constitution. i. In cases concerning ambassadors, public ministers and consuls, the S. Ct. shall have original jurisdiction. ii. In all other cases they have appellate jurisdictio

2、n, under such regulations as congress can make. 2. Establishing the power of judicial review.a. Marshall establishes the power of judicial review in Marbury v. Madison by saying that the court does not have jurisdiction to review the Marshalls writ. i. No Original Jurisdiction: Marbury does not have

3、 original jurisdiction and congress cannot add jurisdiction power whatsoever that is not in the constitution already.1. Problem With Congress cant add J theory: Why is Constitution a ceiling and not a floor.2. Pros: Constitution specified they could take J away, so why wouldnt C say Congress could a

4、dd jurisdiction. b. Why is judicial review necessary?i. Reductio Absurdum Argument: If you cant judicial review then the C is a nullity, b/c Congress could just make laws that go against the constitution. If the C is on a higher hierarchy than other laws, it has to be able to be preserved.ii. S. Ct.

5、 in better place than congress because S. Ct. does not make law, they cant override the C.iii. Pure democracy has the ultimate power of destroying democracy.iv. C is not pure democracy, judicial review is about limiting the power of the majority, a consistent theme in the C.v. The Framers probably w

6、anted JR because Hamilton discusses it in federalist No. 78. c. Why should it not be allowed?i. Is it absurd? The S. Ct. still has original jurisdiction on some topics.ii. Undemocratic, S. Ct. is unelected body, why should they be able to strike down what others do as unconstitutional.iii. Nowhere i

7、n the constitution does it explicitly say that the founders wanted judicial review. JR allows one branch of gov. to have an overriding power on the other two.iv. What makes the S. Ct. in a better position than congress to interpret the C. Why cant congress and the pres. decide constitutional issues

8、for themselves.d. Can anyone do Constitutional Review after the S. Court?i. Cooper v. Aaron decided that the S. Ct. is ultimate and final authority on the constitution. 1. Facts: Governor of Arkansas declared they were not bound by S. Ct decision in Brown v. Board. Refused to desegregate schools.ii.

9、 S. Ct. Held that they have exclusive judicial power and that their decisions are supreme law of the land. Supreme courts interpretation is the FINAL interpretation and the president cannot go against this ruling.iii. Congress cannot make amendments overruling the Supreme Court decisions. If they wa

10、nt to change the law, change the constitution. Dickerson v. United States.e. Shapiros Final Say:i. We need the reinforcement of all the constitutional norms that we can get to have an institution that vindicates the principles is a good thing. ii. We dont want a place where the majority can just do

11、what ever they want with principles. Makes the C more accurate.iii. Who cares if Marshall lied about the Judiciary act, are we going to disregard judicial review, I mean.cmon. 3. Does the S. Ct. have the power to review State Court actions? Martin v. Hunter Lesse, Justice Storya. Why Should the S. C

12、t. have the ability to review state court actions concerning federal law?i. Uniformity Argument: Federal Law should be interpreted in the same way in all 50 states, would be unfair to subject states differently.ii. State Bias Argument: State prejudices may influence state judges in deciding federal

13、matters.iii. Rejection of Virginias stupid sovereignty argument? Virginia tried to argue that sovereignty means that federal judges cannot tell state courts what to do. While state courts are sovereign in some respects, Virginia is a part of the U.S., its not like they are France. b. In the end 25 o

14、f the Judiciary Act, that gives S. Ct appellate jurisdiction of federal question cases is deemed constitutional. 4. When Congress can provide jurisdiction to the court and when they can take it away? Article III 2: “And under such regulations as the congress shall make.” a. Ex Parte McCardlei. Facts

15、: McCardle was Reconstruction journalist talking shit on the federal gov. Law made that a crime punishable in military tribunal. Sought appellate review of habeus corpus. Supreme Court heard oral arguments and congress took away appellate jurisdiction before decision handed down. b. Court held that

16、since congress took away appellate jurisdiction Ct. did not have power to hear the case.c. Constitutional Crises?i. So Congress could annihilate the entire appellate jurisdiction of the S. Ct. Yesii. Original J could be nullified by not appropriating money to S. Ct. d. Arguments Why Congress Does No

17、t Have This Poweri. Because of the word “exceptions” there must be some appellate powers that are CORE, that congress cannot take away. If they could take away all power, then the exception would swallow the rule. ii. Amar Argument: Because of the word “all” the S. Ct. at least has subject matter ju

18、risdiction to decide federal question cases. iii. External Restraints on Congresss Power to Regulate Appellate Pwrs. Of S. Ct.:1. Congress cannot regulate the litigants in a particular case, just the issues.2. If congress limited appellate authority of the S. Ct., there would be a lack of uniformity

19、 in appellate court decisions. National Powers of the Federal Government over Local Activities - McCulloch v. Maryland1. Constitutional Framework:a. Article 1 8: Congresses Enumerated powersi. Lay and Collect Taxes, provide for common defense and general welfare of the United States. Borrow money on

20、 US credit, regulate commerce, coin money, post offices and post roads, promote progress of science and arts.ii. 10 Amendment: All powers not delegated to the federal government are reserved to the state. iii. Can a state interfere with federal laws?1. In McCulloch v. Maryland the court reasoned tha

21、t to give the ability to tax the federal bank to a single state, would be go against the will of the people of the US.a. Argument: The people elected the national government, the national government represents the national people as a whole, and for one state to control federal action, would allow o

22、ne state to impose its sovereignty on the nations.b. Allowing the states to interfere with federal acts cause negative externalities, the exact externalities the constitution wanted to get rid of when creating the C in the first place. c. Why not the power to tax?i. The power to tax is the power to

23、destroy, and it would give state the power to destroy constitutionally protected actsii. By taxing the bank, since the bank has the nations money, it gives Maryland the power to tax anyone. iv. Why is 8 a floor for congressional power?1. Because if congress can only establish offices and post roads

24、without other non-enumerated powers, congress would not have power to run mail effectively. By definition non-enumerated powers necessary to create enumerated powers. 2. As a rebuttal to ceiling argument, Marshall uses N and P clause. Shapiro- Logically, N & P is inherent in the rest of 8.3. The N &

25、 P clause s a tiebreaker. If youre not sure if Congress has the power to do something, you rule in favor of Congress. 4. Marshall adds the word “beneficial” to the N & P clause, puts the question as was the Bank “beneficial”, to make Maryland look stupid, lowers the standard of review. 5. The word n

26、ecessary is one of degrees, so you cannot automatically say that the list is exhaustive. Necessary had both meanings back in the days of the C. 6. An amendment to the C was opened to limit the gov. powers and was denied in the Convention, assumes that everyone was thinking about expansive congressio

27、nal rights. v. Why is 8 a ceiling?1. If 8 was merely supposed to illustrative, why would they add “post roads,” unless the wanted a rigorous application of the C.2. Some would argue we dont want to allow federal powers just for “beneficial reasons”. This premise is based on a basic distrust of gover

28、nment. TERM LIMITS1. Constitutional Frameworka. Art 1 2: No person shall be a rep. unless 25. More rules.who can be representative and who can be senator. They cant serve more than two terms. Rules for who can and cant be member of congress.b. Are these term limits the floor or the ceiling, can a st

29、ate impose extra limits on who can serve in public office? i. Unites States v. Thornton, Arkansas Congress made an amendment saying you couldnt be in public service, names on the ballot, if youve served for a period of time.ii. Court decides that the limits are a floor and a ceiling. Use the silence

30、 argument to impute the words, “no other conditions will apply”.1. Why Should it be ceiling?a. There is no necessary and proper clause here, and there was in enumerated powers. b. Making additional blockades to election would be contrary to fundamental principles of our democracy. c. Cannot allow de

31、mocracy to destroy democracy2. Why should it be a floor?a. It is extremely democratic because the people of the state of Arkansas decided that they wanted this extra restriction. iii. Never discusses term limits. COMMERCE CLAUSE1. Overviewa. Constitution Article 1 8: Congress shall have the power to

32、 regulate commerce among the several states. 10th Amendment: The powers not delegated to the US by the constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people. 2. Dimensions:a. Definitional Dimension #1i. Commerce Is the target of regulation commerc

33、e or commercial transaction at all?1. Trafficking of goods2. All phases of business. (Gibbons v. Ogden, NY gave monopoly for operating steamboats to two guys. Gibbons operated competing ferryboat which was licensed under federal law. S. Ct held that intercourse of goods, navigation held to be commer

34、ce under the commerce clause, commerce includes all phases of business) 3. All phases of buying and selling. (Knight, buying and selling)4. Possession not itself commerce, interstate or otherwise, although may have resulted from commercial transaction or it may generate others. ii. Among the States1

35、. Means “intermingled within the state”. All interstate commerce becomes intrastate commerce, interstate does not stop at the boundaries of the states. Commerce must “concern more states than one.” (Gibbons)2. Congress has complete authority to regulate among the states3. “Stream Of Commerce”:4. Ins

36、trumentalities: Shreveport Rate Case5. Channels: b. Definitional Dimension #2i. Power to Regulate1. Pretty much absolute, except that which is limited by the constitution. (Gibbons) 2. Prohibition is regulation. (Ames)(Hippolite, every regulation is a prohibition of something)3. Power is plenaryc. P

37、urpose Dimension #3i. Congress has the power to control interstate transactions for purposes other than economic or commercial ones. Reached moral dilemmas.d. Connection Dimension #4i. If the regulation is not commerce per se is it related to commerce or relevantly connected to it (nexus).ii. Does a

38、 law “substantially effect” commerce? Factors:1. Size and economic power of regulatory target entity Jones v. NLRB(OKs Production)2. Analyze whether the “ends” are justifiable, court should not be adjudicating whether means are justifiable because of:a. Aggregation Although case in question may be s

39、mall, market may be large. b. Co-mingling Distinguishing proper and improper targets may be too burdensome, all should be regulated. Solves the frustration of purpose argument. (Heart of Atlanta) c. Pure prohibition of interstate commercial transactions - no effort to regulate directlyd. Promoting/i

40、mplementing a prohibition on interstate commerce on a class of commodities by directly regulating the producers/manufacturers of the commodities. Bootstrap Argumente. Bare physical association with interstate commerce as satisfying the substantial connection requirement Questionable under Lopez3. In

41、itial Analysisa. Manufacturingi. Congress could not regulate the factors of production. Court saw logical gulf between commerce and production/manufacturing. (#1-2) (Knight Case, Court wanted to make barriers for congressional control and held that Sherman Anti Trust Act aimed at breaking up Sugar m

42、onopoly was unconstitutional. Congress can control buying and selling, just not manufacturing.)b. Necessity for a Direct Effect when commerce intrastatei. Congress has power to “foster and protect” interstate commerce.(Shreveport, allowed congress to regulate purely intrastate railroad rate in Texas

43、 because of the direct effect on interstate rates)1. Against Schrevport: The Schecter Poultry Case, code that regulated live poultry in NY did not have a “direct effect” on interstate commerce , it only had an indirect effect. .2. HOW DO YOU DETERMINE DIRECT/INDIRECT:ii. “Stream of Commerce” can be

44、used to determine direct/indirect effect. (Swift v. US, although stockyard holding meat was intrastate, stockyard was considered “current of commerce and part of stream of cattle commerce. The stockyard was only a temporary stop for the cattle)1. Once something is in interstate commerce, it remains

45、in that state, even if it has reached its intrastate destination. (Hippolite Egg)c. The Power to Regulate is the Power to Prohibit and Commerce Clause can be used to regulate Moralityi. Morality (#3)1. (Champion v Ames, congress wants to deal with morality of lottery and prohibits certain lottery ti

46、ckets, court gives the go ahead.) 2. Coming out the different way was (Hamer v. Dagenhart, deemed unconstitutional a law that banned goods from traveling interstate that were made by kids)3. Reconciling the two: Hamer was about the goods kids created, putting it in production realm (Knight), no mali

47、ce of good. In Ames there was malice in the goods themselves. ii. Concern about plenary powers, does Congresss ability to regulate morality prove too much.iii. Every power to regulate is a power to prohibit, just to varying degrees. (Hippolite Egg, regulating against adulterated eggs is a PROHIBITIO

48、N of those eggs)4. New Deal Legislation and Beyonda. Manufacturingi. Analysis changed, the fact that what is being regulated is production, it is still part of interstate commerce and can be regulated. (Jones and Laughlin (#4), constitutionality of Labor Relations Act that allowed employees to barga

49、in collectively upheld by court. Analyzes manufacturing as part of the stream of commerce).ii. New test is the close and substantial relation test (applied to the law). Solves the Reductio Absurdum Problem, addresses need for consistency among states.b. No longer a necessity for a direct effect, as

50、long as the Statute “affects” commerce. (Darby, Jones)c. The 10th amendment Argument Rejected And Congresses Plenary Power Affirmedi. No longer restricts congresses power, is pushed aside as a tautology. Hamer v. Dagenhart held to be unconstitutional. (Darby, holding statute constitutional that proh

51、ibited interstate commerce if employees received wages beneath minimum wage)d. The Boot-Strap Argumenti. Allows congress to attack the heart of production, stopping the creation of questionable commerce in the first place. Instead of waiting at the border, this is more efficient. (Darby)ii. May be a

52、 reductio absurdum problem. If bootstrap argument works here, it could legislate marriage.e. Aggregation becomes another Connectioni. Although the case at hand may not affect interstate commerce, the aggregation of the problem can be taken into account. (Wickard, farmer in violation of wheat regulat

53、ion statute, even though just making some extra wheat for home consumption)ii. Again, may be “proves too much” argument.iii. Aggregation can be used to determine the market or industry that is being targeted, even if that target is for morality reasons. Morality is OK to be aggregated in connection

54、dimension. (Heart of Atlanta, upheld Civil Rights act even though motel was 216 rooms because a small pinch on interstate commerce aggregated is a lot.) f. Finding the Hook and Running with iti. Bare connection with IC can be used to regulate anti-discriminatory regulation. Bare Connection can be us

55、ed to find substantial effect on interstate commerce. (Katzenbach v. McClung, Congress wanted to regulate discrimination at Ollies BBQ by finding food from interstate commerce) g. Commerce Clause for Federal Criminal Lawsi. Commerce Clause can be used to create criminal legislation.ii. Absolute pres

56、umption for Congresss rational belief that interstate commerce is affected. Aggregation argument at its limits. (Perez v. US, loan-sharker in New York never operated outside state and Congress still aggregated loan sharking across entire country for affect)5. The Modern Approacha. No Regulation of N

57、on-Economic Activityi. When there is no relation between economic activity and regulation, congress cannot regulate under the guise of interstate commerce. (Morrison v. US, violence against women is not economic activity in any way)ii. Three Areas Congress Can Regulate1. Interstate Channels Anything

58、 were people are benefiting commercially. (Heart v. Atlanta, upheld the federal law prohibiting discrimination by hotels and restaurants)2. Instrumentalities of Commerce persons or things in interstate commerce (railroads) even if wholly intrastate. (Shreveport Rate Case)3. Substantially Affecting Commerce Must is some way involve economic activity, Wickard now the limit. (Lopez v. US, possessing a gun at school not Interstate Commerce a