Constitutional Law Outline
Standards of Review
o When a court reviews the constitutionality of govt action it is likely to choose one of the
following reviews
o The standard to be applied depends on the type of gov restriction or classification in question
Strict Scrutiny: (hardest to satisfy)
o Government action must:
(a) Further a compelling government interest and
(b) Be narrowly tailored to achieve that interest
o The gov action must be the least restrictive means to achieving a compelling
gov interest
o Government acts that are subject to SS are rarely upheld
Intermediate Scrutiny (mid-level)
o Government action must:
(a) further an important gov interest and
(b) be substantially related to achieve that interest
Rational Basis (default; easier to satisfy)
o (a) Government action will be upheld so long as it is rationally related to a legitimate
govt. interest
If irrational or animus action will NOT be upheld
o (b) Government action is almost always upheld under RB.
1
, Constitutional Law Outline
Part 1: Separation of Federal Powers
Background
o Blueprint of government
Avoid monarchy
o Split power among branches (horizontal)
Maximize efficiency of government (trade, military)
Splitting power
o State v. Federal
State has localized interested reflected in state laws
History of state
Splitting powers
o Article 6 Supremacy Clause Federal overrides state law (except in some cases)
Rights bill of rights (1st ten amend)
Why in Amend? – when framers wrote C there was a debate if they should be put down
in the first place, ultimately decided yes but uneasy about it
o Interpretation Methods
Text
Framers Intent
Practices at time of ratification
Tradition
Social needs
Evolution of societal norms
Improving society aspirational.
(A) The Role of the Judiciary
o The Federal Judicial Power
Judicial Review
o Marbury v. Madison
Constitution does not state that the Sc may determine the constitutionality of
acts of other branches. Marbury v. Madison established judicial review of other
branches.
Facts: Before leaving office, Adam’s SOS forgets to give Marbury his
commission. Jefferson orders his SOS, Madison but he does not. Marbury sues.
Majority: [Marshall]
o (1) Establishes judicial review for executive powers. Was filed directly in
Supreme Court. Marbury wanted his commission and job
o (2) Establishes that Article 3 is the ceiling of federal court jx. Congress cannot
expand the original jx of the SC. Article 3 authorizes maximum jx of federal
courts.
o (3) Authority for judicial review for legislative acts
2
, Constitutional Law Outline
o Can court review legislative act? Marshall considers the judiciary act of
1789 said it gives too much
Does the C prevail over congressional law? – or is it an aspirational
document like declaration of independence? No, it is real law
SC gets to interpret the C – can review state decisions
o Interpretive, Congressional, Justiciability
Interpretive methodologies
o Text
o Intent of the writers
o Understanding at time of ratification
o Contemporary values
o Precedence
o Preference for policy
o Originalism – theory that judges should rule in step with norms clearly stated
in C
o Non-Originalism – believes in an evolving interpretive C
Methods of Constitutional Interpretation
o D.C v. Heller
Facts: DC has law prohibiting possession of handguns. Law was unconstitutional
Majority:
o Majority [Scalia] – looked at the text, prefatory clause (a well-regulated
militia) which announces its purpose, and the operative clause (right of the
people) which is the point of the statement
“right of the people” – refers to the other amendments where right of
people referred to individual rights – cites other times the phrase has
been use
Looks at history of phrasing “keep arms” “bear arms”, “arms” meaning
weapons. C protects all bearable arms, just like 1st amend protects modern
forms of speech
Second text implicit recognizes a preexisting right to bear arms as it says
“shall not be infringed”
o Dissent [Stevens]
Policy reasons
Textual interpretations (basically took the opposite position of Scalia)
Cites precedent U.S v. Miller which said sawed off shotguns had no use
for a well-regulated militia
o Dred Scott v. Sandford
Facts: declared Missouri compromise unconstitutional and said slaves are
property and not people. The compromise prohibited slavery.
3
, Constitutional Law Outline
o Strong commitment to wording of the K
o Close in time to framers intent
o Text + intent support idea of slavery
o Shows how interpretive and textual readings can lead to bad conclusions
Majority: people of African descent brought to the US held as slaves are not
considered citizens of the U.S and are not entitled to the protects and rights of the
constitution. the job of the judiciary is not to judge the wisdom of the policy, but
to interpret the application of the constitution as written
Justiciability
o Standing – determination of whether a person is the proper party to bring about the
matter to a court for adjudication.
Injury – (req in Article III)
o Clapper v. Amnesty International
Facts: FISA allows atty gen to surveil people outside of the U.S media
lawyers allege they work closely with individuals abroad.
Opinion
o Alito – respondents say the injury will occur but court says it’s too
speculative and that it must be “certainly impending” even if they did
it would be hard to prove it was fairly traceable to the act. They also
argue that they had an immediate injury by taking steps and
expenditures to avoid surveillance, but court said they cannot
“manufacture standing by choosing to make expenditures on
hypothetical future harms”
o Dissent – Breyer – says harm is actually not too speculative
Causation and Redressability
o must show he has suffered or will suffer an injury imminently
o The injury is fairly traceable to ’s conduct
o must allege a favorable court decision is likely to redress the injury
o 2 prudential principles (Congress can override prudential limits by statute)
(1) party may assert only his rights and cannot bring 3P claims
(2) party may not sue as a taxpayer who shares a grievance in common
with all other taxpayers
o Linda v. Richard (no standing) Child support would lead to father paying
but his arrest. Would not redress the situation. Would not ensure she’d get her
money. Policy argument would be that it would deter him from doing so in the
future.
o Warth v. Seldin (no standing) ’s couldn’t prove zoning laws would
redress the situation. s included people who wanted to live in NY town but
couldn’t because of zoning restrictions on low-income multifamily houses. s
4
Standards of Review
o When a court reviews the constitutionality of govt action it is likely to choose one of the
following reviews
o The standard to be applied depends on the type of gov restriction or classification in question
Strict Scrutiny: (hardest to satisfy)
o Government action must:
(a) Further a compelling government interest and
(b) Be narrowly tailored to achieve that interest
o The gov action must be the least restrictive means to achieving a compelling
gov interest
o Government acts that are subject to SS are rarely upheld
Intermediate Scrutiny (mid-level)
o Government action must:
(a) further an important gov interest and
(b) be substantially related to achieve that interest
Rational Basis (default; easier to satisfy)
o (a) Government action will be upheld so long as it is rationally related to a legitimate
govt. interest
If irrational or animus action will NOT be upheld
o (b) Government action is almost always upheld under RB.
1
, Constitutional Law Outline
Part 1: Separation of Federal Powers
Background
o Blueprint of government
Avoid monarchy
o Split power among branches (horizontal)
Maximize efficiency of government (trade, military)
Splitting power
o State v. Federal
State has localized interested reflected in state laws
History of state
Splitting powers
o Article 6 Supremacy Clause Federal overrides state law (except in some cases)
Rights bill of rights (1st ten amend)
Why in Amend? – when framers wrote C there was a debate if they should be put down
in the first place, ultimately decided yes but uneasy about it
o Interpretation Methods
Text
Framers Intent
Practices at time of ratification
Tradition
Social needs
Evolution of societal norms
Improving society aspirational.
(A) The Role of the Judiciary
o The Federal Judicial Power
Judicial Review
o Marbury v. Madison
Constitution does not state that the Sc may determine the constitutionality of
acts of other branches. Marbury v. Madison established judicial review of other
branches.
Facts: Before leaving office, Adam’s SOS forgets to give Marbury his
commission. Jefferson orders his SOS, Madison but he does not. Marbury sues.
Majority: [Marshall]
o (1) Establishes judicial review for executive powers. Was filed directly in
Supreme Court. Marbury wanted his commission and job
o (2) Establishes that Article 3 is the ceiling of federal court jx. Congress cannot
expand the original jx of the SC. Article 3 authorizes maximum jx of federal
courts.
o (3) Authority for judicial review for legislative acts
2
, Constitutional Law Outline
o Can court review legislative act? Marshall considers the judiciary act of
1789 said it gives too much
Does the C prevail over congressional law? – or is it an aspirational
document like declaration of independence? No, it is real law
SC gets to interpret the C – can review state decisions
o Interpretive, Congressional, Justiciability
Interpretive methodologies
o Text
o Intent of the writers
o Understanding at time of ratification
o Contemporary values
o Precedence
o Preference for policy
o Originalism – theory that judges should rule in step with norms clearly stated
in C
o Non-Originalism – believes in an evolving interpretive C
Methods of Constitutional Interpretation
o D.C v. Heller
Facts: DC has law prohibiting possession of handguns. Law was unconstitutional
Majority:
o Majority [Scalia] – looked at the text, prefatory clause (a well-regulated
militia) which announces its purpose, and the operative clause (right of the
people) which is the point of the statement
“right of the people” – refers to the other amendments where right of
people referred to individual rights – cites other times the phrase has
been use
Looks at history of phrasing “keep arms” “bear arms”, “arms” meaning
weapons. C protects all bearable arms, just like 1st amend protects modern
forms of speech
Second text implicit recognizes a preexisting right to bear arms as it says
“shall not be infringed”
o Dissent [Stevens]
Policy reasons
Textual interpretations (basically took the opposite position of Scalia)
Cites precedent U.S v. Miller which said sawed off shotguns had no use
for a well-regulated militia
o Dred Scott v. Sandford
Facts: declared Missouri compromise unconstitutional and said slaves are
property and not people. The compromise prohibited slavery.
3
, Constitutional Law Outline
o Strong commitment to wording of the K
o Close in time to framers intent
o Text + intent support idea of slavery
o Shows how interpretive and textual readings can lead to bad conclusions
Majority: people of African descent brought to the US held as slaves are not
considered citizens of the U.S and are not entitled to the protects and rights of the
constitution. the job of the judiciary is not to judge the wisdom of the policy, but
to interpret the application of the constitution as written
Justiciability
o Standing – determination of whether a person is the proper party to bring about the
matter to a court for adjudication.
Injury – (req in Article III)
o Clapper v. Amnesty International
Facts: FISA allows atty gen to surveil people outside of the U.S media
lawyers allege they work closely with individuals abroad.
Opinion
o Alito – respondents say the injury will occur but court says it’s too
speculative and that it must be “certainly impending” even if they did
it would be hard to prove it was fairly traceable to the act. They also
argue that they had an immediate injury by taking steps and
expenditures to avoid surveillance, but court said they cannot
“manufacture standing by choosing to make expenditures on
hypothetical future harms”
o Dissent – Breyer – says harm is actually not too speculative
Causation and Redressability
o must show he has suffered or will suffer an injury imminently
o The injury is fairly traceable to ’s conduct
o must allege a favorable court decision is likely to redress the injury
o 2 prudential principles (Congress can override prudential limits by statute)
(1) party may assert only his rights and cannot bring 3P claims
(2) party may not sue as a taxpayer who shares a grievance in common
with all other taxpayers
o Linda v. Richard (no standing) Child support would lead to father paying
but his arrest. Would not redress the situation. Would not ensure she’d get her
money. Policy argument would be that it would deter him from doing so in the
future.
o Warth v. Seldin (no standing) ’s couldn’t prove zoning laws would
redress the situation. s included people who wanted to live in NY town but
couldn’t because of zoning restrictions on low-income multifamily houses. s
4
