Constitutional Law
Government has limited powers
Enumerated powers: coining money
Implied powers: chartering national
bank
Individuals’ rights also limit gov’t powers
Enumerated rights: Speech, Assembly
Implied rights: Association, Privacy
Sources of Law
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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 both
1. Primary rules – obligations and
prohibitions
2. 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
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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 English
District 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, Ships
But 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
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Republican Form of Government
Mode of Amending Constitution
Partisan Gerrymandering
Termination of Treaties
Recognition of Indian Tribes
Form of Senate Impeachment Trials