CONSTITUTIONAL LAW SPRING 2007 – PROF. FISCHER
Outline for Class 3: Limits on Judicial Power: The Political Question
Doctrine
I.
II.
III.
IV.
V.
VI.
VII.
VIII.
IX.
X.
XI.
XII.
XIII.
Central Themes
Political Question Doctrine: a Misnomer?
Origins of Political Question Doctrine: Marbury v. Madison
(1803)– slightly different from modern political question
doctrine
The Classic Statement of the Political Question Doctrine in
Baker v. Carr (1962) Are these good criteria?
Prominent on the surface of any case held to involve a political
question is found a textually demonstrable commitment of the
issue to a coordinate political department; or a lack of judicially
discoverable and manageable standards for resolving it; or the
impossibility of deciding without an initial policy determination
of a kind clearly for nonjudicial discretion; or the impossibility of
a court’s undertaking independent resolution without expressing
lack of the respect due coordinate branches of government; or an
unusual need for unquestioning adherence to a political decision
already made; or the potentiality of embarrassment from
multifarious pronouncements by various departments on one
question. [Casebook at p. 35]
The need for case-by-case inquiry (Baker v. Carr) [CB p. 34]
Guaranty Clause cases (Art 4 § 4): Luther v. Borden (1849)
[CB p. 35]
Reapportionment cases: Colegrove v. Green (1946), Baker v.
Carr (1962) [CB p. 33]
Foreign Relations cases: Goldwater v. Carter (1979 [CB p. 40]
Case law on Congress’ ability to regulate its internal processes:
Powell v. McCormack (1969) [CB p. 39]
Case law on the impeachment process: United States v. Nixon
(1993) [CB p. 41]
The process for ratifying constitutional amendments: Coleman
v. Miller (1939) [CB p. 47]
Should there be a political question doctrine?
Is the political question doctrine constitutional, prudential, or
both?
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Outline for Class 4: Limits on Judicial Power: Justiciability Doctrines of
Standing, Ripeness, Mootness
XIV. Central Themes
XV. Ban on Advisory Opinions
I. Constitutional Basis for Ban on Advisory Opinons
II. What Is an Advisory Opinion?
III.
Should There Be a Ban on Advisory Opinons?
XVI. Standing:
I. Constitutional and Prudential Bases for Standing Doctrine
II. Standing Requirements:
i.
Personally Suffering/Imminently Will Suffer
Injury, Causation, Redressability) (Warth v.
Seldin (1975), Arlington Heights v. Metropolitan
Housing Corp. (1977), Lujan v. Defenders of
Wildlife (1992)),
ii.
No Third-Party Standing (4 exceptions to this
doctrine) (Elk Grove Unified School Dist. v.
Newdow (2004),
iii. Prohibition Against Generalized Grievances
(Frothingham v. Mellon (1923), Flast v. Cohen
(1968), U.S. v. Richardson (1974), Schlesigner v.
Reservists Committee to Stop the War (1974),
iv.
Within the Zone of Interests Protected By the
and one Statute (Bennett v. Spear (1997))
III.
Should these Requirements Be Broadened?
XVII. The Ripeness Doctrine
A. Differences from Standing: When is Review Appropriate
B. Overlap with Standing
C. Requirements for Ripeness (Substantial Hardship from
denial of preenforcement review, fitness of the issues for
judicial determination) (United Public Workers v. Mitchell
(1947)
D. Constitutional and Prudential Justifications for Ripeness
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V. The Mootness Doctrine
A.Constitutional and Prudential Bases for Mootness Doctrine
B. Flexibility of Mootness Doctrine
C. Exceptions to Mootness Doctrine: Collateral (or Secondary)
Injury, Wrongs Capable of Repetition Yet Evading Review
(Roe v. Wade (1973), Voluntary Cessation, Class Actions
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Outline for Class 5: Judicial Power: Supreme Court Authority to Review
State Court Judgments and
I.
Finish up Mootness and Ripeness Doctrines (see Outline for
Class 4 for issues
Central Themes for Class 5
Supreme Court Authority to Review State Court Judgments
II.
III.
A. Martin v. Hunter’s Lessee (1816) (CB p. 71)
i. Background
ii. Judiciary Act of 1789 § 25: That a final judgment or decree
in any suit, in the highest court of law or equity of a State in
which a decision in the suit could be had, where is drawn in
question the validity of a treaty or statute of, or an authority
exercised under the United States, and the decision is against
their validity; or where is drawn in question the validity of a
statute of, or an authority exercised under any State, on the
ground of their being repugnant to the constitution, treaties or
laws of the United States, and the decision is in favour of their
validity, or where is drawn in question the construction of any
clause in the constitution, or of a treaty, or statute of, or
commission held under the United States, and the decision is
against the title, right, privilege or exemption specifically set up
or claimed by either party, under such clause of the said
constitution, treaty, statute or commission, may be reexamined
and reversed or affirmed in the Supreme Court of the United
Stats upon a [writ of error].
iii. Virginia’s arguments that Supreme Court did not have the
power to judicially review the ruling of the Virginia Court of
Appeals that it did not have to obey the 1813 Supreme Court
order.
iv.
Justice Story’s reasoning in support of Supreme Court
decision in 1816.
B. Cohens v. Virginia (1821) (CB p. 74) (John Marshall’s
opinion)
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C. Later in 19th c. more extreme challenges by advocates of
strong strong states rights theories such as those of John Calhoun
(e.g. nullification, secession)
D. Cooper v. Aaron (1958) (CB p. 26)
 Federal power of judicial review of state laws and state
executive acts
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Outline for Class 6: Congerssional Power to Jurisdiction Strip;
Federalism and the Scope of National Power
IV.
V.
General Themes
(Held Over From Class V) DOES CONGRESS HAVE THE
POWER TO STRIP THE SUPREME COURT AND/OR
LOWER FEDERAL COURTS OF JURISDICTION
A. Constitutional Text: Exceptions Clause in Art. III § 2 cl. 2: “The
Supreme Court shall have appellate jurisdiction, both as to Law and
Fact, with such Exceptions, and under such Regulations as the
Congress shall make.”
B. Precedent: Ex Parte McCardle (1869) (CB p. 77), Ex parte Yerger
(1868) (CB pp. 79-80), Felker v. Turpin (1996) (CB p. 80), United
States v. Klein (CB p. 81), Plant v. Spendthrift Farm (1995) (CB p.
81)
C. Policy Considerations
VI.
Federalism and the Scopt of National Power
A. Textual Limits on Federal Government’s Power (Articles I-III, A.
I s. 10, Amendment X)
B. Breadth of Federal Governments Power: McCulloch v. Maryland
(1819) (CB p. 90)
i. Background to Case
ii. 2 Issues for Supreme Court review
iii. John Marshall’s opinion: Historical practice,
sovereignty, textual arguments, structural arguments
including “representation reinforcement review” (as
later developed by John Hart Ely)
“Necessary and Proper Clause” in Art. I § 8 c. 8
provides that Congress has power “[t]o 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.”
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iv. John Marshall’s view of the breadth of government
power to legislate has controlled throughout
American history
C. Other structural limits on the powes of the states: U.S. Term
Limits, Inc. v. Thornton (1995) (CB p. 111)
i.
ii.
iii.
Elections Clause in Art. I § 4 c. 1: grants to states the
power to regulate the “Times, Places and Manner of
holding Elections for Senators and Representatives . . . “
Qualifications Clauses in Art. I § 2 cl. 2 and Art I § 2 cl.
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Basis of Constitution: Popular Sovereignty vs. State
Sovereignty
i. Popular Sovereignty: McCulloch v. Maryland,
majority opinion of Justice Stevens (joined by Justices
Ginsburg, Souter, Breyer, concurrence of Justice
Kennedy)
ii. State Sovereignty: dissenting opinon of Justice
Thomas (joined by Rehnquist, Scalia,
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Outline for Class 7: Commerce Clause I: History of Interpretation of
the Commerce Clause from Gibbons v. Ogden to 1937
I.
Announcement: Class on Thursday January 25 begins at 1:30 due
to University Mass for the Feast of St. Thomas Aquinas.
II.
Central Themes
III.
Constitutional Text
i.
ii.
iii.
iv.
IV.
Does the Constitution contain guidelines for its own
interpretation? If so, where?
Commerce Clause at Article I Cl 8 § 3. It provides that
“The Congress shall have Power . . . to regulate Commerce
with foreign Nations, and among the several States, and with
the Indian Tribes.”
Vague Terms: “Commerce”, “among the several States”
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.
Early Nineteenth Century Interpretation of the Commerce Clause
Gibbons v. Ogden (1824) (CB p. 124) - interpretation of “Commerce”
and “among the . . . States”, as well as whether Tenth Amendment
limits Commerce power.
V.
Interpretation of the Commerce Clause from 1895-1936 – focus
on interpretation of terms “Commerce” and “among the . . .
States,” as well as whether/extent to which, Tenth Amendment limits
Commerce power
i.
COMPARE United States v. E.C. Knight Co. (1895) (CB p.
126) WITH Houston E. & W. Ry. Co v. United States (The
“Shreveport Rate Case”) (1914) (CB p. 128) (origins of
“substantial effects” test)
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ii.
iii.
iv.
VI.
COMPARE The Shreveport Rate Case (above) WITH
Schechter Poultry Corp. v. Unite States (1935) (CB p. 135)
and Carter v. Carter Coal Co. (1936) (CB p. 137)
COMPARE Swift & Co. v. United States (1905) (CB p. 129)
(“stream of commerce” theory) and Stafford v. Wallace
(1922) (CB p. 129) WITH Railroad Retirement Board v.
Alton R.R. Co., (1935) (CB p. 135)
COMPARE Hammer v. Dagenhart (the “Child Labor
Case”) (1918) (CB p. 132) WITH Champion v. Ames (the
“Lottery Case”) (1903) (CB p. 130) (and Hipolite Egg Co. v.
United States (1911) (CB p. 131) and Hoke v. United States
(1913) (CB p. 132))
FDR’s Court-Packing Plan: What was the switch in time that
supposedly saved nine? See footnote 3 at CB p. 141.
VII. Interpretation of the Commerce Clause from 1936 –1995: focus on
- interpretation of “Commerce” and “among the . . . States”, as well as
whether Tenth Amendment limits Commerce power.
i.
Regulatory Laws – (Substantial) Effects Test
a. NLRB v. Jones & Laughlin (1937) (CB p. 143)
b. United States v. Darby (1941) (CB p. 144)
c. Wickard v. Filburn (1942) (CB p. 147)
d. Hodel v. Virginia Surface Mining & Recl. Ass’n (1981)
(CB p. 148) (pay attention to Rehnquist warning in his
concurring opinion; it will be highly relevant for
Thursday’s class)
ii.
Civil Rights Laws
a.
Heart of Atlanta Motel v. United States (1964) (CB p.
150)
b.
Katzenbach v. McClung (1964) (CB p. 151)
iii.
Criminal laws
Perez v. United States (1971) (CB p. 153)
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