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Choosing Where to File the Law Suit

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Choosing Where to File the Law Suit 1 The Constitution I. Articles of the Confederation The Articles of Confederation set up a very weak federal government which provided A. Unanimous consent of states for amendment 1. Weak federal legislature B. No Supreme Court C. States retained all the powers that weren’t ‘expressly’ delegated 1. gives states much more power 2. States are essentially sovereign within their sphere D. No power to Congress to regulate interstate commerce 1. Resulted in trade wars between the states II. Functions of the Constitution The Constitution is important because it (all elements) A. Creates a National Government, with separated power between branches 1. Creates a system of checks and balances 2. Lessens the possibility of tyrannical rule B. Divides power between the federal government and state governments 1. Federalism is this vertical division of authority 2. Lack of clarity in Article I led to 10th Amendment C. Protects individual liberties III. Arguing about the Constitution In arguing about the constitution, one may rely upon (all elements) A. Plain text B. History 1. Original intention of framers and ratification a) But did they understand it themselves? 2. Historical practices C. Structure D. Moral Reasoning E. Consequences (of decisions) 1. Government 2. American life 3. Stability of society F. Ethos 1. Justice and fairness within the spirit of the Constitution G. Formalist vs. Functionalist 1. Formalist A formalist believes that (all elements) a) A branch’s powers are completely defined within the Constitution A branch may only share power with another branch to extent that Constitution allows i) Any deviation from the structure is illegal ii) Every power has got to be in some category (legislative, executive, etc) b) No authorization in Congressional Silence c) Historical practices have no legal consequences i) History may only prove the unconstitutionality of that action over time 2 2. Functionalist A functionalist believes that (all elements) a) A branch’s powers are not rigidly defined within the Constitution i) Balance competing considerations ii) Only disallow things which duly interfere the with ability of a branch to function iii) Relationship at the top is formally structured, but what may occur below the top is not set up in the constitution iv) Practical – look at how the world works b) Congressional Silence may have meaning c) Historical practices may have meaning i) The fact that something has consistently occurred over time could have meaning IV. Overruling of Cases A case may be overruled by (all elements) A. Constitutional Amendment B. NOT a statute C. The Court A case may be overruled by the court considering (all elements) 1. Wrong decision A wrong decision must be present, but the court needs more so as not to risk stability of the law 2. EITHER a) Proven to be unworkable i) Garcia v San Antonio Metropolitan Transit Authority b) When it is inconsistent or conflicting with another line of cases The inconsistency of the law may damage reliance interests c) Abandoned rule due to the evolution of legal principle d) Change in factual underpinning or understanding of the facts i) West Coast Hotel Lochner’s recognition of implied right to contract flawed ii) Brown v Board of Education Facts fundamentally different V. Justices changing their minds A justice, who is no longer on the court, no longer wields the power of a supreme court justice. Therefore, Unless willing to acknowledge that someone who is not on the court has influence on the court (strikes at legitimacy of court) must recognize that a justice no longer on the court has no influence on the law 3 Federalism The people are the ultimate source of power for the government, but federalism is the basic relationship between the states and the federal government. States are sovereign within their sphere and cannot act within the federal sphere. VI. Exclusive Federal Powers A power is exclusively federal IF (any element) A. The power of states is expressly limited Powers which are expressly limited or prohibited of the states’ exercise thereof ARE (any element) 1. Treaty 2. Coinage of money 3. Duty on imports B. Inherent Federal Powers Powers which are exclusively federal because of their nature ARE (any element) 1. Declaration of war 2. Federal citizenship 3. Naturalization 4. Borrowing money on the credit of the US 5. Foreign Relations VII. Exclusive State Powers All powers not prohibited to the states by the Constitution are reserved to the states, but the expansive interpretation of the federal powers leaves little state power that is exclusive. VIII. Absence of Powers Powers which are denied to both Congress and the States ARE (all elements) A. Setting of qualifications for Congress The Qualifications Clause in the Constitution, which sets the qualifications to serve in Congress, are exclusive and cannot be altered by Congress or the states. Powell v McCormack; US Term Limits v Thornton (Arkansas’ imposed term limit for members of Congress was invalidated) a) Precedent i) Powell federal can’t expand qualifications – so states shouldn’t either ii) McCulloch states may not use power to undermine federal institutions b) History i) Original understanding as exclusive source of qualifications – no fed/state power ii) Historical Practices – states’ control over elections can be overwritten by federal c) Text i) No reserved powers – took time to specify time, place, and manner – no power d) Democratic principles / Representation re-enforcement i) The people of the US have a right to choose whether or not they want more experience in Congress - benefit people outside of a state as citizens of the US B. Default rules in silence A justice must often rely on things outside of the text, including heart, character, political philosophy, to resolve ambiguities and silence in the text and history of the Constitution to be either in favor of 1. Broad federal power - Resolve ambiguities in favor of federal power 2. Narrow federal power - Resolve ambiguities in favor of state sovereignty IX. Concurrent Powers 4 The Judicial Power X. The Judicial Power A. Power of Judicial Review Judicial review is the power or authority of the Supreme Court to assess or review the constitutionality of certain actions. The court has the authority to review 1. Other branches of federal government The Supreme Court may determine the constitutionality of acts of other branches of government as it is the province and duty of the judiciary to declare what the law is. Marbury v Madison (argument over court’s authority to issue writ of mandamus) a) Sources of Judicial Review The source of power for judicial review of other branches exists within (all elements) i) The written Constitution The court must hold government to what it says so the Constitution has meaning ii) The Court’s jurisdiction to cases ‘arising under the Constitution’ Denying the court the ability to interpret the Constitution in cases that arise under the Constitution would be to deny their jurisdiction iii) Oaths of office Judges are obligated to uphold the constitution, but so are Congress & Pres. iv) Structure of the Constitution The Constitution defines the rules the courts must follow v) The Court’s duty The court must determine what the law is in order to determine what is legal vi) Supremacy of the Constitution A law not consistent with the Constitution is not part of the supreme law of the land and as such the court may declare a law unconstitutional Marbury v Madison b) Modern Judicial Review of other branches Where the modern court has a choice to read a statute to avoid constitutional problems, it shall read it in such a manner. c) Countering Supreme Court decisions Other branches of government can counter Supreme Court decisions by (any element) i) Under-enforcement 1) Non-enforcement is controversial ii) Veto iii) Appoint justices who disagree iv) Impeachment of Justice v) Attempt to amend the Constitution vi) Ask the Supreme Court to overrule an opinion vii) Federal Regulation of the Supreme Court’s jurisdiction 2. State acts Judicial review of state acts are limited by statute to those highest state courts’ decisions that reject and refuse to follow claims based on federal law decided by the Supreme Court Martin v Hunter’s Lessee (VA court argues it does not have to follow the Supreme Court’s 5 decision because its appellate power didn’t extend to that court and sovereignty diminished, but the court holds it has review – sovereignty was diminished when joined the Union) a) Sources of Judicial Review The source of power for judicial review of state acts exists within (all elements) i) Uniformity of federal law A court must ensure uniformity in interpretation and enforcement of federal law ii) Hostility of the states The court must ensure that any hostility felt by state courts towards federal law does not dictate the outcome of federal law. 1) Hostility may find its source in a. Undermining of state sovereignty b. Majoritarian / electoral pressure of state court judges c. Structural matters of living in the state 2) Federal judges are insulated from hostility due to (all elements) a. Life tenure b. Undiminished compensation c. Protection against political retaliation d. BUT may argue insulation allows political acts – How do you know something based on law and not politics? iii) Federal judges’ expertise in federal law The Court will be sufficiently knowledgeable about the federal law iv) Damages due to different outcomes in different states v) Finality Avoid re-litigation in different states 3. Federalism Issues Any claims that implicate the relationship between the federal government and the states are resolved by the Supreme Court McCulloch v Maryland (state bank charter) US Term Limits (states vs. federal over setting of qualifications) a) Representation-Reinforcement Judicial review is necessary in order to make up for deficiencies in the political process, which may deny citizens outside of a state any political redress.
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