Constitutional Law: Professor Yoshino Spring 2009 Outline

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Modalities of Constitutional Interpretation
Bobbit’s Six Modalities
Marsh v. Chambers [Handout]

Constitutional Law: Professor Yoshino

Spring 2009 Outline

Table of Contents 1

Modalities of Constitutional Interpretation 0

I.Post’s Three Modalities, and Criticisms 0

II.Bobbit’s Six Modalities 0

III.Marsh v. Chambers [Handout] 0

Judicial Review 1

I.History of Marbury v. Madison 1

II.Primary Criticism of Judicial Review: counter-majoritarian 1

III.Justifications for Judicial Review 1

IV.Defense of Judicial Review 1

V.Marbury [CB 108]: important for establishing power of judicial review, as well as political question (justiciability) doctrine 2

VI.Limits on Judicial Review 2

Federalism 3

I.Federalist Structure of Government 4

II.Values of Federalism 4

III.Foundational Federalism Cases 5

Commerce Clause and Substantive Due Process 6

I.Due Process versus Equal Protection 6

II.Lochner Era: Ebbing of Congressional Power 6

III.The New Deal Era 9

IV.Second Reconstruction to Rehnquist Revolution (1937-1995) 11

V.Rehnquist Revolution 13

Vertical and Horizontal Federalism 15

I.Vertical Federalism: relationship between federal gov’t and states 15

II.Horizontal Federalism: relationship btw states 16

Separation of Powers 18

I.Theoretical Background 18

II.Executive Power: Veto Power 18

III.Executive Power: Pardon Power 18

IV.Executive Power: Treaty Power 18

V.Executive Power: Appointments Power 18

VI.Executive Power: Chief Executive/Commander in Chief 18

VII.Executive Power: Habeas Corpus and Military Commissions 20

Fourteenth Amendment 25

I.Different conceptions of race and E.P. consequences 25

II.Categories of Rights 26

III.Introduction to Equal Protection Clause 26

IV.Privileges or Immunities Clause 27

V.Congressional Power Under 14th (and 13th) Amdt. 27

Equal Protection 28

I.Creation of Separate But Equal Doctrine 28

II.Road to Brown 29

III.Dismantling SBE 29

IV.Scrutiny Matrices 30

V.Strict Scrutiny 31

VI.Disparate Impact 33

VII.Affirmative Action 34

VIII.Sex Discrimination 36

Modern Due Process 39

I.Unenumerated Rights Drawing Some Degree of Heightened Scrutiny 39

II.Protection of Non-Economic Unenumerated Rights During Lochner Era 39

III.Birth of Modern Due Process 39

IV.Evolution of Fundamental Liberty Definitions 40

V.Abortion and Stare Decisis 40

VI.Modern Due Process and Equal Protection: Gay Rights 43

VII.Modern Due Process and Privileges and Immunities 47

Enforcement of Fourteenth Amendment 49

I.Katzenbach v. Morgan [CB 576]: important for being an aberrational grant of a lot of power to Congress under 14(5) → NOTE: this is just an historical artifact 49

II.Boerne and its aftermath 49

III.14th Amendment Enforcement and Sovereign Immunity 50

Modalities of Constitutional Interpretation

Post’s Three Modalities, and Criticisms
1. Doctrinal: authority of the const. as law → stability, reliability
  1. What happens at T1, when there is no doctrine? → you’ll need some other modality
  2. Why should we do something just b/c past courts have told us to? What to do w/ bad precedent?
2. Historical: equation of constitutional authority w/ consent → give effect to the original bargain that was struck/intent of the bargainers
  1. Fundamental criticism: why should we be bound by the consent/intent of long-dead framers?
  2. Implied consent: reverts to responsive modality → implied consent requires a connection btw present day Americans and the founders, through a national ethos
3. Responsive/Functional: authority of ethos (whole experience of nationhood) → let const. respond to the times, but it must grow out of the original seeds
  1. Does this really rest on any authority? What exactly is an “ethos”?
  2. Counter-majoritarian: why should we allow court to impose its own conception of ethos on Congress/country?
Bobbit’s Six Modalities
1. Historical (Intentional)
2. Textual
3. Structural: relationships between institutions
4. Doctrinal
5. Ethical (Post: Responsive)
6. Prudential: cost-benefit analysis
Marsh v. Chambers [Handout]
1. FACTS: Court finds that Neb. state legislature did not violate Establishment Clause in permitting or paying for prayers before legislative sessions
2. Majority (Burger) opinion:
  1. Historical/Intentional modality: even First Congress had legislative prayer → historical approval by First Congress of legislative prayer illustrates their intent behind Establishment Clause (to allow legislative prayer)
  2. Doctrinal: basically ignores doctrinal test
3. Dissenting (Brennan) opinion:
  1. Response to Burger’s historical argument: (1) legislators who allowed prayer may have been influenced more by politics (daily hurly-burly of lawmaking) as opposed to constitutionality of their decision (higher law-making); (2) states are responsible for ratifying const. → why do we care about intent of framers?; (3) meaning of const. isn’t fixed by intent of framers
  2. Doctrinal: under Lemon test, this would clearly be unconst.: (1) statute has a religious, not secular, purpose; (2) primary effect is religious; (3) leg. prayer improperly entangles state and religion (state supervision of religion, and creation of political divisions based on religion)
    1. Note: even Brennan seems to think that Lemon is too harsh and doesn’t heavily rely on it
  3. Functional/Responsive: what is Establishment Clause supposed to do, and how can we give effect to these functions w/ regard to this statute?

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