Fall 2017 Flashcards
What are the Six Modalities of Constitutional Interpretation?
- Text
- Structure
- History
- Doctrinal
- Prudential
- Ethical
What is Textual Interpretation?
A strict reading of the text of the constitution
What is Structural Interpretation?
Using other parts of the constitution to provide meaning and context (comparative)
What is Historical Interpretation?
- Original Intent
- Original Meaning
- Context
- Traditions
Historical evaluation of the framing, ratification, and other actions during the time of the creation of the constitution.
What is Doctrinal Interpretation?
Stare Decisis - prior interpretations of the constitution by the supreme court.
What is Prudential Interpretation?
Balancing the costs/benefits of various interpretations to seek the most practical or pragmatic alternative.
What is Ethical Interpretation
The moral and ethical commitments reflected in the constitution.
What is individual sovereignty?
The people are sovereign and grant power to the government which limits governmental power.
What is the Locke Theory of Governance?
- Each person has a state of nature of perfect freedom and equality.
- Government is necessary to enforce the law, fairly without prejudice
- People consent to form and restrict rights to protect life, liberty, and property.
What is the Montesqui view of Government?
Separation of Powers - checks and balances
What are the major outcomes of Marbury?
- Constitution is regulatory
- Congress cannot exceed limits of constitution in granting jurisdiction
- Court can compel excutive action for ministerial (legal) duties, cannot for political duties
- Judicial Review - review of legislation for constitutionality
- Appellate Review not Orginal Jurisdiction
Categories of Justices
- Textual, Structural, Historical - Originalist
- Doctrinal (precedential) - C.L. Traditionalist
- Moral/Ethical - Ethical
- Prudential - Pragmatist
What is a case or controversy?
Adverse proceeding between litigants
Muskrat - Request for advisory opinion denied
What are the 5 limits on Jurisdiction?
- Case or Controversy (No Advisory Opinions)
- Standing
- Ripeness
- Mootness
- Not a Political Question
What is Standing?
A party must be the proper person to bring suit
- Real Injury
- Injury “fairly traceable” to Defendant
- Redressable by judicial action (Remedy by judgment)
Lujan - Future observations of endangered species was too speculative to serve as a real injury.
What is Ripeness?
A case or controversy whose disposition is not too early or too late for ajudication
What is Mootness?
A question that has already been resolved, no longer requiring ajudication
What is a Political Question?
A question whose remedy is best resolved by political action, either through the legislative or executive branches.
What are the 3 elements of standing?
- Concrete and Particularized
- Causation (Traceable)
- Redressable by Judicial Action
What constitutes a concrete and particularized case?
- Injury in Fact (Type)
- Actual or imminent, not conjectural (Time)
What is concrete?
Real not abstract (tangible harm), or ideological harm (government not following the law)
What is particularized?
- Injury suffered by oneself (subjective injuries are not particularized)
- Violation of a constitutional right is an injury
When does a party have standing?
- When an injury exists at time of filing (original case)
- No standing, if an injury does not exist at time of filing
When is a case moot?
- When a case that had standing (injury at time of filing) loses standing because the injury is gone (settlement, withdrawl, etc.) after filing.
- De Funis* - University of Washington law school student’ s challenge to an affirmative action program, where DeFunis graduated before the Supremes could hear it.
When does a Taxpayer have standing?
Generally no standing for unconstitutional “tax and spend”, exceptions are;
- A taxpayer,
- That can show a logical link between the status and issue,
- A nexus between status/issue and unconstitutionality;
- Like the Establishment Clause (separation of church and state)
Flast - tax and spend for religious aid group
Can 3rd Party’s have standing?
Generally no, except when:
- no antagonism exists between the 1st and 3rd party.
- That is, they share common interests and identities of rights, or
- there is an obstacle/impediment for the 1st party to bring suit.
Singleton - A doctor (third party) brings an action for his patients regarding overly restrictive abortion laws.
What are the policy reasons for no 3rd party standing?
- 3rd parties must assert their own rights
- Parties (1st and 3rd) may be antagonistic
What is “fairly traceable”?
The injury must be plausibly traceable to the defendant.
What is redressable?
That a judicial action will have some effect or provide some remedy.
What is the Supremacy Clause?
U.S. Constitution is the supreme law of the land
What are Adequate and Independant Grounds?
If a case is heard based on state law that is independent of federal law and provides an adequate grounds for relief, SCOTUS cannot review the decision.
What is the “State” Plain Statement Rule?
State courts should plainly state that the decision rendered was based only “independent state grounds”.
What are the Prudential Aspects of Standing?
- Prohibition against 3rd party standing
- General Grievances
- Zone of Interest (in a group a statute was designed to protect)
What are the 2 Elements of Ripeness
- Fitness of the issues for judicial resolution (prevalent legal issue)
- Substantial hardship to the parties without judicial review
What are 3 Factors to consider about Ripeness?
- Likelihood that the policy will be enforced
- Present injury
- Is there a need for further factual development?
2 & 3 are like “Actual and Imminent” in Standing
What are the 4 exceptions to Mootness requirements?
- Collateral Consequences - a secondary/collateral issue that survives the primary issue
- Capable of Repetition and Evading Review - if the injury can happen again to the same P. (Roe v Wade)
- Class Action Cases - where a member of the class is continually injured
- Voluntary Cessation - if the D ceases injurious behavior but could begin again at any time.
What are the 6 factors of political questions?
- Separation of Powers
- Lack of judicially discoverable and managable standards for resolving it
- Protection of Executive and Legislative Spheres
- Mutual Respect between branches of government
- Embarassment from multifarious pronouncements from various departments
- Adhere to prior decisions of other branches
1, 2, 3 - Are structural
4, 5, 6 - Are Prudential
What are the clauses of the 14th Amendment?
- All born or naturalized persons are citizens of the US and state in which they reside.
- No state shall make or enforce any law which abridges the immunities or privileges of US citizens
- No state shall deprive any person of life, liberty, or property whithout due process of law.
- nor deny any person within its jurisdiction the equal protection of the laws.
What does the Privileges and Immunities clause protect?
Right and privileges granted as US citizens, access to seaports, right of travel, right to file lawsuits, foreign government infringments.
Slaughterhouse - Limited P&I clause
What are Public Interest Policies?
Policies which limit rights of individuals to serve the greater common interest, provided the limit is within the (Police) powers of the state and is not unconstitutional.
Munn -
What types of public interest regulations fall within the states “Police Powers”?
- Public Health
- Safety
- Morals
- General Welfare
Nebbia - Price controls on milk during the depression
When can “Police Powers” be envoked?
When the government needs to regulate some aspect of public interest.
- Is the regulation/law fair, reasonable, necessary?
- If unreasonable then, unconstitutional or a “violation of liberty”
- If reasonable then constitutional
What is the rational basis test?
Would a “rational and fair” person accept the “basis” of the law for the law in question. Routinely applied to socio-economic laws
Ferguson - Limiting the business of debt adjustment to lawyers exclusively.
What is total incorporation?
Assimilation of all bill of rights rights within the construct of the 14th amendment penumbra of liberties, and applied against the states.
Adamson - Justice Black’s historical and original intent argument made in dissent
What is the natural rights theory?
- The social contract gives rise to natural rights.
- Legislative Power cannot infringe on natural rights
- Judicial Split
- Iredell - strict textual reading of natural rights
- Chase - Can go beyond text, to social contract to find natural rights
Caldor -
What is incorporation?
Incorporating the bill of rights into the liberties asserted by the 14th amendment against the states.
BOR not incorporated against the states:
- 5th amendment - Right to Grand Jury indictment
- 7th amendment - Right to a Jury Trial - Duncan
- 3rd amendment - Housing Troops
- 8th amendment - Excessive bails and fines
What is selective incorporation?
The selective incorporation of bill of rights liberties, the only ones not currently included are a right to a grand jury indictment, and right to a jury trial.
Adamson - Frankfurter’s textual and structural argument that you dont need two amendments if the liberties of the first were intended to be fully incorporated.
What does the Equal Protection Clause cover?
- Racial classifications (strictly not allowed)
- Classification infringed (race, sex, etc.) or fundamental rights
When is strict scrutiny used?
Equal protection clause to undo racial classifications, infringments based on classifications (race, gender, etc.), and abridging fundamental rights.
What does the Due Process clause protect?
- Liberty of Occupation and freedom to contract - Lochner
- Incorporation of other rights (BOR, Nontextual) - Adamson
- Substantive Autonomy Rights (Nontextual) Privacy Rights - Meyer
What are the steps to review Substantive Due Process?
- Indentify the right/liberty at issue.
- Is the right/liberty fundamental or subject to heightened scrutiny?
- Has the right liberty been infringed or substantially impaired?
- Apply correct level of scrutiny, strict, balancing test, or rational basis.
Who has final authority, SCOTUS or State Supremes?
SCOTUS has final authority over all cases that arise under the laws and treaties of the United States.
Martin - Va. ruled one way, SCOTUS the other. SCOTUS won.
What are the reasons for no “Advisory Opinions” from SCOTUS?
- Structural - the Constitution prohibits encroachment of the powers of other branches, advisory opinions could result in SCOTUS telling them what to do.
- Prudential - Judiciary should be deciding the constitutionality of actual issues, not hypothetical ones.
What limitations can Congress place on SCOTUS?
- Can impeach justices - Nixon
- Appointed justices are confirmed by Congress
- Can amend the constitution to overrule SCOTUS
Ex. Parte McCardle - Congress can regulate jurisdictional rules.
What are fundamental rights?
Enumerated and Non-textual rights that have been determined to be guaranteed by the constitution.
- Precedent
- History
- National Values
What examples of fundamental rights?
- Right to raise your child as you see fit - Pierce, Troxel
- Right to pursue an education - Meyer (state prohibition on German language classes)
- Right of procreation - Skinner (forced sterilization)
- Right to not procreate - Griswold (denial of contraception falls within penumbra of rights in BOR)
- Right to marry (Inter-racial) - Loving
- Right to marry (same sex) - Obergefell
- Right to sexual intimacy (privacy) - Lawrence
- Right to use contraceptives when unmarried - Eisenstadt
- Right to live together as a family -
- Right to refuse medical treatment as a competent adult - Cruzan
- Right to an abortion - Roe, modified by Casey
- Right to interstate travel - Saenz, Shapiro
What are Non-Fundamental Rights?
Non-textual rights that are deemed important but not fundamental, these are reviewed as rational basis, or a balancing tests
Who has the burden in the rational basis test?
Under rational basis, all laws are considered constitutional unless the plaintiff can show that the law is not rationally related to a permissable government interest.
Williamson - Regulations for eyeglass prescriptions (Holmes dissent)
Who has the burden in “strict scrutiny” cases?
The government must show that the legislation is narrowly tailored, that is by the least restrictitve means, to serve a compelling government interest or purpose.
What are examples of non-fundamental rights, but protected liberties?
- Economic rights
- Grandparents rights to children - Troxel
- Government funded abortion
- Physician assisted Suicide - Glucksberg
- Marry in Jail
- Prisoner’s right to vote
- Felon’s right to a gun
- Right to Raise Extended Family - Moore
- Rights of Biological Out of Wedlock Father - Michael
What is the “undue burden” test?
A balancing test applied to abortion cases which evaluates whether a regulation/statute has the “purpose” or “effect” of placing a substantial obstacle in the path of a woman seeking an abortion.
Casey - Waiting period for potential abortion not deemed unconstitutional.
What is substantive due process?
Substantive rights not enumerated but contained within the term “liberty” and supported by the 9th amendment.
How has the undue burden test been applied to abortion?
Casey
- Undue Burden
- Spousal Consent
- Doctor’s admitting privileges - Whole Woman’s Health
- Facilities meeting ambulatory surgical standards - Whole Woman’s Health
- Not Undue Burden
- 24 hour waiting period
- Providing full disclosure of abortion process
- Providing details of alternatives to abortion
- Written consent
- Tests for fetus viability
What was the holding in Strauder?
The Supremes applied the equal protection clause of the 14th amendment to strike down a law not allowing african americans to serve on juries. The race based element was struck down, other non-race criteria could be used.
What were the Civil Rghts cases?
The court construed the 14th amendment as applying only to state actions and not to dicrimination by individuals. In this case public houses (inns, motels, etc.).
What was the holding in Yick Wo?
The discriminatory application of racial neutral legislation was also in violation of the 14th amendment.
What is Rational Basis with a Bite?
In cases where the government action indicates an animus toward a non-suspect group, the rational basis test requires the state to show that the legislation was rationally related to a permissable government purpose.
- Cleburne* - Zoning permits not granted to keep a group home for the mentally disabled from being located in the city.
- Moreno* - Unrelated family members not eligible for food stamps overturned due to harming a politically unpopular group
When is an equal protection class “under-inclusive”?
- When a law does not burden or benefit all those who are similarily situated (same class)
When is an equal protection class “over-inclusive”?
- The law extends the benefit or burden not only to those in the class (similarily situated) but to others as well.
How big does the class need to be for Equal Protection?
As few as 1
Willowbrook - a single property owner prevailed against the city for easement rules only applied to them. The court held that an irrational and arbitrary state action violated equal protection even in a class of 1.
What are the factors to overrule “Stare Decisis”?
- Workability
- Is the law working?
- Reliance
- Is the law being relied on?
- Undermining legislation with the doctrine
- What ripple effect would this have on other laws?
- Whether the facts/basis of ruling has changed
- Has time changed the need for the law?
What constitutes “Property”?
- Real Property (Land)
- Pecuniary Property (money)
- Chattels (Stuff)
- Legitimate Claim or Entitlement to Government Benefits
- Welfare
- Social Security
- Job in some cases
Which Amendment applies to Equal Protection?
- Federal Discrimination - 5th Amendment
- State Discrimination - 14th Amendment
What are some arguments for Affirmative Action?
- The Constitution is really not color blind
- Despite our best intentions, racism still persists in society
- The disparity between classes of citizens based on race still exists and needs to be fixed.
- Affirmative action is qualitatively different, closes the disparity gap
- Equal Protection clause guarantees equality of outcomes/results.
What is the difference between equality and equity?
What three areas can Congress regulate with respect to Interstate Commerce within the Commerce Clause?
- Channels of Commerce
- Instrumentalities of Commerce
- Activities which have a Substantial Relation to Interstate Commerce
What are Channels of Interstate Commerce?
Modes of commerical activity, like internet sales, or products which originate in one state and are sold in a different state.
What are instrumentalities of Interstate Commerce?
The actual means of moving interstate commerce around, like trucks, rail, ships, internet.
What is the vacuum theory
Every place is subject to legislation, state, federal, or both. There can be no place where a legislative vacuum occurs.
What is a fundamental difference between the Commerce Clause and the Tax and Spend power of the Federal Government?
- Commerce Clause is direct action to regulate activities. Cannot be refused
- Tax and Spend is indirect action via conditions on money received from the Federal Government and can be refused.
Can the President make laws?
Executive Orders must have a base in President’s Powers
- Enumerated
- Bicameral/Presentment (delegated by Congress)
- Impoundment
- Discretionary Spending
What is the Establishment Clause
NOT TESTED
The government shall not make laws “respecting the establishment of religion”
What is the aggregation effect in Interstate Commerce?
Even small consumers in a single state can be subject to the Commerce Clause if the aggregate effect of all of the individual actors has a substantial affect on commerce.
- Wickard* - Wheat
- Raich* - Home grown sticky icky,
What is the test for Congressional conditions to states on spending grants?
- General Welfare
- Unambiguous Condition on State Funds
- Related to a Federal Program
- Cannot violate another Constitutional Provision
What is executive privilege?
MC
Some actions of the president are subject to privilege, especially in the areas of National Security, etc..
- The judiciary will apply a prudential balancing test to determine
- The need for the information, versus
- The need to keep the information secret
- The information will be reviewed in-camera by the judiciary and the information assessed for privilege.
Nixon - Watergate tapes
What is Historical Gloss?
Judge Frankfurter suggested that presidential action:
- should be viewed with an historical gloss to determine the actions that presidents had traditionally taken (historical modality).
- Even for those acts that the president might not have direct authority, the historical precedent would suggest authority. (Presidential squatter rights)
