Consider: Unenumerated rights, like Miranda; or “small government” Dynamic – “Living Constitution” – can change over time But subjective – Significant judicial power Textual: Meaning of the specific words in the Constitution Changed circumstances – Changing technology, etc. that didn’t exist at framing Hyper-textualism would require constant amendments Intra-textualism – The same word means the same thing throughout (McCulloch) Structural: Inferring rules from the structural relationships in the Constitution E.g. Separation of powers, or federalism Congress regulates army/navy (Art. 1), President is commander in chief (Art. 2), Art. 3 is silent judiciary should give lots of deference in this area Prudential: Cost/benefit with respect to a particular rule Pops up in emergencies “Constitution isn’t a suicide pact” Example – v. Chambers (1983) Burger – Holding that Neb. State legislature didn’t violate Establishment Clause (1st Am.) in permitting/paying for prayers before legislative sessions, paid with public funds Establishment Clause: “Congress shall make no law respecting the establishment of religion” (U.S. Const. Am. 1) Historical: Framers passed statute authorizing chaplain for Congressional prayer, paid with public funds then voted on Am. 1 3 days later not interpret Am. 1 as not allowing what they just passed Brenan J. Dissenting Historical: Constitution as moment of higher lawmaking vs. ordinary lawmaking; Historical intent of framers and ratifiers (Bill of Rights was a condition imposed by the states, not Congress); Constitution is not static, fixed @ framing Doctrinal: Test – Statute must have secular legislative purpose; Primary effect neither advances/inhibits religion; doesn’t foster excessive entanglement with religion Prudential: Separation of church and state protects both religion and states Ethical: Prayer is part of American culture Textual: “Establishment of Religion” referred to the Church of England JUDICIAL REVIEW Analysis Political Question Doctrine (Baker v. Carr, 1962) Textual Constitutional Commitment to another branch someone is SATPOP Nixon v. US (1993) – Judges should rule on removal of other judges Judicial impeachment is an Art. 2 power of Congress Institutional Competence – Lack of discoverable/manageable standards Coleman v. Miller (1939) – No standard to determine what is “too long” for voting on a Constitutional Amendment Comity – Prudential reasons to abstain (respect for coordinate branches) Standing
Does Marbury have a to the commission? Do the laws afford him a remedy? And can the SC issue this remedy? Reasoning – Authority for Judiciary to review constitutionality of exec./leg. acts Constitutional Supremacy Intent of framers – original government charter Constitution is written – Sets and bounds of discretion Art. 4 Supremacy Clause – “This Constitution, and the Laws… which shall be made in Pursuance thereof” “Constitution” is and laws must conform in order to trump state law Judiciary as Interpreter of the Constitution Textual – Courts hear all “arising under” the Constitution Judicial Competence – Interpreters of law/expertise in conflict resolution Judicial Oath to protect the Constitution Holding: § 13 is unconstitutional because Congress can’t original jurisdiction beyond what is enumerated in the Constitution Marbury is entitled to the commission, judicial remedy wouldn’t interfere with executive discretion, mandamus is the appropriate remedy, Madison cannot assert sovereign immunity, § 13 authorizes the writ in this case Escape Hatches Recusal – Marshall was Secretary of State when Marbury was appointed Contract Law – Decide the commission only vests on delivery (rather than appointment) NOTE: Does not work if Π is SATPOP – revoke any time Political Question – If Constitution gave power over this decision to another branch Statutory Interpretation – Interpret § 13 to allow SC appellate rather than original jurisdiction over writs of mandamus no conflict Constitutional Interpretation – Secretary of state as a “minister” Exceptions Clause – Make an exception that adds original jurisdiction FEDERALISM Analysis Values of Federalism Efficiency Local issues should be resolved at local level (States – environmental regulations), larger national issues should be resolved at the federal level (defense, transportation, communication) BUT can just have central government with local municipalities Individual Choice States give menu of options assuming mobile population One state bans smoking 70/30, one does not 40/60 Nationally 110/90 So if federal 90 pissed off, if 70 pissed off (30 + 40) Experimentation – Very similar to Individual Choice New State Ice, Brandeis dissenting – “Laboratories of experimentation” State policies can spread, then be adopted nationally later trial
Legislation must be justified by an actual and compelling interest and the legislation must be precisely tailored to meet it Important non-economic state interest No reasonable nondiscriminatory alternative Carefully consider comparisons to the following examples Maine v. Tailor (1986) Maine bans out-of-state baitfish constitutional because they are protecting from undetectable parasite found in out-of-state fish Pretext – Hawaii regulation on all alcohol with an exception for alcohol made with a only found in HI unconstitutional Participant Exception State acting as a market participant (purchase, sell, subsidize, etc.) can act like any other private participant (but no regulation) Reeves, Inc. v. Stake (1980) – Upheld SD state-owned cement plant selling primarily to in-state companies South Central Timber Dev. v. Wunnicke (1984) – Overturned regulation requiring Alaska timber to be “partially processed” in state even though state was also a timber processor Does the (non-discriminatory) state regulation burden interstate commerce? If yes, invalid unless interest in regulation outweighs the burden on interstate commerce (Pike v. Bruce Church) State regulation has nondiscriminatory purpose, but discriminatory effect Balancing (Hughes v. OK, 1979) Whether statute regulated even-handedly with only “incidental” effects on interstate commerce or instead discriminated against interstate commerce facially or in practical effect (i.e. threshold) Whether the statute serves a legitimate local purpose, and if so Whether alternative could promote this local purpose as effectively without discriminating against interstate commerce v. Bruce Church (1970) – AZ law requiring cantaloupes grown to be crated in-state before shipping, Church wants to crate in CA Struck down even without intent to discriminate because exceeded benefits Privileges and Immunities Clause P&IC – If a state gives a right to its citizens, it must give the same right to citizens of other states Corfield v. Coryell (1823) Right to pass through or travel in state Right to “reside in state for business or other purposes” Right to do business there whether it involves “trade, agriculture, professional pursuits, or otherwise” Right to “take, hold, and dispose of property, either real or personal” Right to pursue a livelihood Toomer v. Witsell (1948) – Struck down SC statute requiring non-residents to pay 100x the licensing fee of in-state residents for commercial shrimp boats
Foundation of anti-classification jurisprudence (Thomas especially) Undermines affirmative action as unconstitutional Historical Race – Race as a thick attribute – a phenomenon that creates difference through contingent historical practice Foundation of anti-subordination remedial jurisprudence Remediation has an inherent time limit Cultural Race – Race as “culture, community, and consciousness” Foundation of “diversity” principle – positive effects associated with race Badges and Incidents of Slavery Civil Rights Cases – Narrow close to subjugation/involuntary labor Jones v. Mayer (1968) – Expands to racially restrictive covenants Congress has under 13th Am. rationally to determine what are the badges and incidents of slavery and authority to translate that into legislation Traditional Breakdown of Rights Political, and Social Rights Political Social to hold property Right to sue Right to contract Right to travel Right to vote to hold office Right to associate Right to marry Prohibitions in 13.1 and 14.1 Public Actors Private Actors Prohibition of Badges and Incidents of Slavery 13.1/14.1 13.1 Prohibition of Equal Protection Violations beyond B&I of Slavery 14.1 Neither Cases Strauder v. West Virginia (1880) Δ convicted by jury where African Americans were excluded Holding Δ has a right to jury of his peers, no right to have AA on the jury but has a right to not have them excluded based on race Statute excluding AAs from the jury is discrimination of potential jurors Note standing issue: Since no potential juror would ever challenge the law, court allows Δ to challenge (also constructs injury through exclusion argument) Dissent argues this is a political right, points to 15th Am. right to vote separate Consider: Jurors anti-classification, Δ’s anti-subordination interest in having AAs on the jury both cut the same way here Remaining issue of how far EPC should extend Intentionalist: 13th and 14th are only about slavery/race Textual: 13th specifically refers to race, 14th is broader The Slaughterhouse Cases (1873) LA law moving animal slaughter below NOLA and granting monopoly to the Slaughter House Company is challenged by butchers under 13/14th Am. 13th Am. claim is dismissed – exclusion from practice is not slavery EPC claim dismissed – does not recognize occupational distinctions DPC claim dismissed – no substantive element only procedural PorI of 14th Am. Analysis – Three interpretations
that Congress felt crack was cheaper, stronger, and more dangerous so unless Π can demonstrate intent rational basis Modification and Critique of the Doctrine Argument that Davis is inconsistent with framers intent WRT EPC Broad language is closer to Title VII Argument that Clary is an incorrect application of Arlington Change Feeney to require “knowing” rather than “purposeful” intent Comparison to environmental law where we routinely require the government to justify its actions Affirmative Action Timeline Case Context (Rationale) Promulgating Entity Majority Opinion Level of Scrutiny Result (1978) Education (Rem. & Div.) State No Intermediate (Brennan op.) Program Invalidated Fullilove (1980) Contracting (Remedial) Federal No Unarticulated (Burger op.) Program Upheld Wygant (1986) Education (Remedial) State No Strict (Powell Plurality) Program Invalidated Croson (1989) Contracting (Remedial) State Yes Strict Program Invalidated Metro B. (1990) Broadcasting (Diversity) Federal Yes Intermediate Program Upheld Adarand (1995) Contracting (Remedial) Federal Yes Strict Program Invalidated Grutter (2003) Education (Diversity) State Yes Strict Program Upheld (2003) Education (Diversity) State Yes Strict Program Invalidated Note that between 1990 and 1995 Federal programs didn’t get strict scrutiny because 14.5 gave prerogative to feds to undo discrimination Key distinction here is that anti-classification and anti-subordination cut in opposite directions in these cases Two Government Interests Remedial Interest – Remedy past discrimination that has current effects E.g. Often pops up in contracting cases Diversity Interest – Areas where there is significant exchange of ideas E.g. Education and broadcasting Amar argues that we want to foster robust exchange of Cases