Constitutional Law

Constitutional LawGovernment has limited powers

Enumerated powers: coining moneyImplied powers: chartering national

bankIndividuals’ rights also limit gov’t powers

Enumerated rights: Speech, AssemblyImplied rights: Association, Privacy

Sources of Law

• Natural Law• Customary Law• Statutory Law• Judicial Precedent (Common Law)

Constitutional tradition requires rule of law

Law is universal and treats all like cases similarly without special treatment for any person.

Rule of law applies to the state as well as all private parties

Tom Paine: “as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.”

H.L.A. Hart

Rule of law requires both1. Primary rules – obligations and

prohibitions2. Secondary rules – which govern

primary rules and give them proper effect, signaling when they are legitimate

Judicial Review:

Judges Examine the Legitimacy of Primary Rules

using Secondary Rules

Dr. Bonham’s Case (England, 1610) Parliament could not delegate judicial

powers over disciplinary cases to the Royal College of Physicians when the Royal College receive the proceeds of the fines because of the principle of due process that “no man should be a judge in his case”

Dr. Bonham’s Case (England, 1610)Chief Justice (Sir) Edward Coke

wrote, “when an act of parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such act to be void.”

Bayard v. Singleton (North Carolina, 1787)

Bayard sought to reclaim her Loyalist (Tory) family's confiscated property after the Revolutionary War.

A panel of local judges (NC did not yet have a Supreme Court) found that the NC law allowing confiscation violated the right to property.

U.S. v. Klein (1872)In 1870, Congress passed a law that

prohibited courts from recognizing a Presidential pardon in cases involving property of former Confederates and denying Supreme Court jurisdiction over such cases

Supreme Court strikes down law on two grounds:

U.S. v. Klein (1872)1. Congress had stripped court of

jurisdiction to protect unconstitutional intrusion in to Executive power of pardon

2. Congress had intruded into judicial sphere to dictate results of cases properly before the courts

Attempted Jurisdiction Stripping Bills• Abortion• Congressional Contempt Citations• Electoral Redistricting• Gay Marriage• Keep God in Pledge of Allegiance• School Desegregation• Women in Armed Forces

Employment Division v. Smith (1990)

Drug counselors apply for unemployment, argue discharge for peyote consumption discriminates against religious obligation

Supreme Court (via Scalia) says that “generally applicable” laws may burden religion under Free Exercise clause, state need not show “compelling interest”

Religious Freedom Restoration Act (RFRA) of 1993

"Government shall not burden a person's exercise of religion even if the burden results from a rule of general applicability [unless] it demonstrates that application of the burden... 1) furthers a compelling governmental interest, and (2) is the least restrictive means of furthering that compelling governmental interest."

Religious Land Use and Institutionalized Persons Act (RLUIPA)

Act passed in 2000 in response to Boerne v. Flores

Restored strict scrutiny to federal, state, and local government regulations concerning prison inmates’ religious practices and property use by religious institutions

Regulation of government only, more closely tied to Congress’ 14 Amend powers

Berg v. Obama (3rd Circuit, 2009)Berg, a “birther,” challenged Obama’s status

as a “natural born” citizen and thus his qualifications to serve as President

Court denied Berg standing, noting that he shared any possible injury w/ >300 million others, and noting multiple political remedies (electoral college, Congress) and other litigants (states, other candidates, political parties, members of Congress, etc)

Arizonans for Official English v. AZ (1997) Arizonans passed initiative requiring all

official state acts to be carried out in EnglishDistrict Court struck down part of initiative as

overbroad. AZ chose not to appeal, AOE files to appeal District Court ruling

Sup Ct denies for other reasons, but also notes that AOE was not “authorized by state law to represent the State's interests” and denies standing

Environmental Standing

Legal Personality: A person or organization that can legally enter into a contract, and may therefore be sued for failure to comply with the terms of the contract.

Also includes: Corporations, ShipsBut what about trees or nature?

Sierra Club v. Morton (1972)Sierra Club challenges Forest Service

permit for ski resort in valley then near (now in) Sequoia Nat’l Park

Question was: Should Sierra Club have standing to sue?

Majority found no injury to SC members, rather than generalized harm

Sierra Club v. Morton (1972)“The river as plaintiff speaks for the

ecological unit of life that is part of it. Those people who have a meaningful relation to that body of water - whether it be a fisherman, a canoeist, a zoologist, or a logger - must be able to speak for the values which the river represents and which are threatened with destruction....”

William O. Douglas (dissenting)

U. S. v. Students Challenging Regulatory Agency Procedures (S.C.R.A.P.) (1973)

SCRAP challenges railroad rate setting that made shipping recyclables more expensive

Claims standing because each member’s outdoor experience “was disturbed by the adverse environmental impact caused by the nonuse of recyclable goods brought about by a rate increase on those commodities.”

Lujan v. Defenders of Wildlife (1992)

Defenders challenge U.S. A.I.D. grants to Egypt and Sri Lanka by suing Secretary of Interior to require that he take action to stop disbursement of funds under Endangered Species Act.

Lujan v. Defenders of Wildlife (1992)

Two questions:1. Do plaintiffs have particularized interest in welfare of endangered animals? Court says No.2. Is Lujan the proper defendant, as dams are primarily funded and erected by other governments, and USAID is part of State Dept? Court says No.

Massachusetts v. EPA (2007)Majority grant MA standing to challenge EPA

inaction on greenhouse gases as“the State has an interest independent of

and behind the titles of its citizens, in all the earth and air within its domain. It has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air."

Enforcement Provisions – Private Attorney Generals

Civil Rights Act of 1964. Allows any individual to sue a public accommodation on account of discrimination in service.

Americans with Disabilities Act of 1991. Provides disabled individual right to sue a public accommodation on account of discrimination because of lack of access.

Political Questions

• Republican Form of Government• Mode of Amending Constitution • Partisan Gerrymandering• Termination of Treaties• Recognition of Indian Tribes• Form of Senate Impeachment Trials