Constitutional Law

SPRING 2013

Sources of Law (where is it?)1. Constitutional Law

(a) State(b) Federal

2. Statutory law(a) Legislative bodies(b) Uniform laws

3. Administrative law(a) Legislative delegation(b) Rulemaking/Enforcement/Adjudication

4. Common law

The Common Law TraditionCommon Law = Judge-made or Decisional law

• Feudal system: Different rules for different fiefdoms; no consistency

• 1066 – The Norman Conquest: William the Conqueror/King’s Courts

• Built on PRECEDENT; the principle that similar cases should be decided similarly

• A system of recording decisions evolved: Judges issued opinions which could be referred to by other judges to guide their decisions

• Unified the country by creating more consistent and predictable rules

Stare Decisis = Precedent• Bedrock Principle of US Jurisprudence; it has two

components: (a) If a Court establishes a precedent in how it handles

a particular situation, all lesser courts facing the same situation are bound to follow it, too (it’s “binding authority” on that court).

(b) A Court should not depart from a precedent without a strong reason to do so.• When will a Court depart from precedent?

(a) Precedent is incorrect(b) Societal change has overtaken(c) Often “distinguish” as opposed to overrule

Binding Authority• Courts are bound to apply the law from its several

sources• Constitutional provisions• Statutes• Administrative rules• Previous decisions of a higher courtWhen there is no precedent:• In a case of first impression, a Court should look to

similar (although not binding) cases, statutes or other sources – this is “persuasive authority”

Law v. EquityCourts work by providing remedies to persons who are aggrieved. Usually, the form that legal remedy takes is an award of money. • The King’s Courts awarded monetary or economic remedies –

became known as remedies at law.• However, sometimes a remedy at law is not adequate, and what

would be just or fair would be a decree or order tailored to address a specific situation: to order someone to refrain from doing something harmful, or to require someone to come through on a deal that was made. An equitable remedy.

• When a subject petitioned for a remedy other than money, the King delegated the decision to his Chancellor. Thus, the Chancery Courts were the Courts of Equity while the King’s Courts were the Courts of Law.

Equity = Fairness; Law = MoneyNo longer two different court systems in Texas or in most other states, nor in the federal court system. Same courts can dispense both equitable and legal remedies. Normally:• Equitable Remedies include: Injunctions, Specific

Performance, Recission, Reformation, Mandamus. Usually, one must show that a legal remedy would be inadequate, and that irreparable harm will result if the requested remedy is not awarded.

• In addition, equitable remedies are regulated by certain principles or “maxims” of equity, such as clean hands, he who seeks equity must do equity, equity regards substance over form, etc. (see page 10)

Marbury v. Madison

Start our study of the Constitution by taking a look at this famous case:

• Marbury defined the relative roles of a constitutional provision and a law passed by Congress;

• Marbury defined the role of the judiciary in the federal system.

Constitutional Powers of Government

• Federalism: The federal constitution was a political compromise between advocates of state sovereignty and central government.

• Separation of Powers: Executive, Legislative and Judicial. Provides checks and balances.– Legislative: enacts laws.– Executive: enforces laws.– Judicial: declares laws/actions unconstitutional.

Three Branches of Government

1. LEGISLATIVEMakes the laws

2. EXECUTIVEEnforces the laws

3. JUDICIALInterprets the laws

What’s in it?

The Original Document is in just 7 Articles.

• Article I – the Legislature• Article II – the Executive• Article III – the Judiciary• Article IV – the States• Article V – Amendment• Article VI – Debts, Supremacy, Oaths• Article VII - Ratification

Some Important Clauses in the First Seven Articles

Article I, Section 8: Sets forth specific powers of Congress. Among these are the authority to:

• “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes…”

(this is the Commerce Clause) We’ll cover in more detail in a minute

• “…establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States…”

(immigration laws and bankruptcy laws)• “…promote the Progress of Science and useful Arts, by

securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”

(copyrights and patents)

Familiar and Important Constitutional Clauses

• “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water”

(war powers)• “To make all Laws which shall be

necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof”

(the Necessary and Proper Clause)

Familiar and Important Constitutional Clauses

Article VI contains this passage:• “This Constitution, and the Laws of the

United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land…”

(This is referred to as the Supremacy Clause)

Familiar and Important Constitutional Clauses

Article I, Section 9 applies some limits to Congress’s powers:

• The “privilege of the writ of habeus corpus shall not be suspended…”

(this is a legal action by which one can challenge his detention as unlawful…sometimes called the “great writ” because of its importance)

• No bill of attainder(this is a law declaring a person or group of

people guilty of a crime without a trial)• No ex post facto law(this is a law declaring something that

already happened to be illegal)

Familiar and Important Constitutional Clauses

Article II describes the office of the President. He or she shall:

• “be Commander in Chief of the Army and Navy…”

• “have Power, by and with the Advice and Consent of the Senate, to make Treaties…and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers…”

• “from time to time give to the Congress Information of the State of the Union”

• “be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors”

Familiar and Important Constitutional Clauses

Article III establishes the federal courts.• “The judicial Power of the United States, shall be vested in one

supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”

• “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office”

(This means that federal judges are appointed for life) • Section 2 states the jurisdiction of the Supreme Court. “In all

Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction…”

(Recall that this is the language that John Marshall hung his hat on in deciding Marbury v. Madison and establishing judicial review. The Constitution does not itself state anywhere that the Supreme Court has authority to declare a law passed by congress to be unconstitutional)

Familiar and Important Constitutional Clauses

Article IV, regarding the States contains:• “Full Faith and Credit shall be given in each

State to the public Acts, Records, and judicial Proceedings of every other State….”

(the Full Faith and Credit Clause)• “The Citizens of each State shall be entitled

to all Privileges and Immunities of Citizens in the several States”

(the Privileges and Immunities Clause)

Commerce Clause

• Article I, Section 8. Greater impact on business than any other provision of the Constitution, it gives Congress power to:

“…regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes…”

• In early years, this was interpreted as allowing regulation only of interstate as opposed to intrastate commerce. 1824 case of Gibbons v. Ogden allowed Congress to legislate purely intrastate matter under the commerce clause as long as the commerce substantially affected commerce involving more than one state.

The Commerce Clause

• Since Gibbons, federal regulatory powers have expanded under Commerce Clause:– Wickard v. Filburn (1942). Purely local

production, sale and consumption of wheat was subject to federal regulation.

– Heart of Atlanta Motel v. U.S. (1964). Motel that provided public accommodations to guests from other states was subject to federal civil rights legislation.

Commerce Clause

• Since then, Commerce Clause has been the chief vehicle of expanding federal government authority over all kinds of matters.

• There is very little that Congress cannot do when it acts under the Commerce Clause.

The Commerce Clause

• Commerce Clause Today:– Theoretically: the federal government

has unlimited control over all business transactions since any enterprise (in the aggregate) can have a “substantial effect” on interstate commerce.

– Practical Limits: Supreme Court has curbed federal regulatory powers in U.S. v. Lopez (1995) and U.S. v. Morrison (2000).

– Most Recent: Affordable Care Act upheld

Bill of Rights• 1791: Ten written guarantees of

protection of individual liberties from government interference.

• Originally, Bill of Rights only applied to the federal government.

• Later, the Bill of Rights was “incorporated” via the 14th Amendment and applied to the States.

The Bill of Rights

The first ten amendments to the Constitution comprise the Bill of Rights.

First AmendmentCongress shall make no law respecting an establishment of

religion, (called the Establishment Clause)or prohibiting the free exercise thereof; (called the Free Exercise Clause)or abridging the freedom of speech, or of the press; or the right

of the people peaceably to assemble, and to petition the Government for a redress of grievances.

(freedom of speech, press, right to assemble and to petition)

First Amendment: Freedom of Speech

• Right to Free Speech is the basis for our democratic government.

• Free speech also includes “symbolic” speech, including gestures, movements, articles of clothing.

• Offensive speech and conduct that is intended as speech also protected, see Snyder v. Phelps. But it’s not always clear what conduct is speech and what isn’t. (See J. Alito dissent)

First AmendmentCongress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

1. Demonstrators, including Johnson, burn an American Flag at a protest rally and are arrested by the local authorities. They are charged with violating a law prohibiting the desecration of the American Flag. The demonstrators challenge the constitutionality of the law. What result?

In the 1989 case of Texas v. Johnson, the Supreme Court held that burning a flag to protest government policies is an act of expression, and thus protected political speech. It struck down the local law.

First Amendment

Free Speech Rights of CorporationsThe Supreme Court overruled prior cases holding that political speech may be banned based on the speaker's corporate identity. Under the 1st Amendment, corporate funding of independent political broadcasts in candidate elections cannot be limited. Majority held political speech is indispensable to a democracy, and this is no less true because the speech comes from a corporation as opposed to an individual. Citizens United v. FERC

First Amendment

Commercial (not political) speech treated differently than non-commercial speech.

More leeway given to regulation ofThe content of commercial speech

(See Handout)

Unprotected Speech

• Certain speech is NOT protected:– Defamatory speech.– Threatening speech that violates criminal laws.– Fighting Words.– Obscene Speech is patently offensive, violates

community standards and has no literary, artistic, political or scientific merit.

– False or Misleading Advertising

First Amendment:Freedom of Religion

• First amendment guarantees that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”

• Establishment clause: no state-sponsored religion or preference for one religion over another.

• Free Exercise clause: person can believe what he wants, but actions may be unconstitutional.

Second Amendment

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Third Amendment

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Fourth Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Fifth Amendment

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Sixth Amendment

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Seventh Amendment

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Eighth Amendment

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Ninth Amendment

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Tenth Amendment

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

• State have inherent “police powers.” – Police powers include right to regulate health,

safety, morals and general welfare.– Includes licensing, building codes, parking

regulations and zoning restrictions.

Fourteenth Amendment

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

….Section 5. The Congress shall have power to

enforce, by appropriate legislation, the provisions of this article.

Due Process• Due Process is both procedural and

substantive.• Procedural: any government decision to

take life, liberty or property must be fair. Requires: Notice and Fair Hearing.

• Substantive: focuses on the content or the legislation (the right itself).– Fundamental Right: requires compelling

state interest.– Non-Fundamental: rational relationship to

state interest

Equal Protection• 14th Amendment: A state may not

“deny to any person within its jurisdiction the equal protection of the laws.”

• Means that government must treat similarly situated individuals (or businesses) in the same manner. Courts apply different tests:– Minimal scrutiny-economic rights.– Intermediate scrutiny.– Strict Scrutiny – fundamental rights.

But it’s not unlimited...