Thursday, July 7, 2011
Issues in federalism and constitutionalism
Laurence Tribe, American Constitutional Law Third Edition Volume One
Chapter 2 “Model I – The Model of Separated and Divided Powers
In order to grasp our federalism, one must focus not principally on abstract theories or examples from other national charters, but on the peculiar edifice of national and state governments erected by our Constitution- an edifice no less real by virtue of being implicit in the Constitution’s plan rather than explicit in its text. (Page 129)
With respect to both federalism and separation of powers, then, the structure – as revealed by the explicit text and the implicit plan or design on the Constitution- is paramount. At times, text will be sufficient, without necessarily developing an overarching vision of the structure, to decide major cases: thus, the presentment clause and the bicamerality requirement furnished the rule of decision in INS v. Chadha… Sometimes, however, it will be necessary to extrapolate what amounts to a blueprint of organizational relationships from the fundamental structural postulates ones sees as informing the Constitution as a whole; such a method is appropriate, for example, to decide the kinds of federalism issues the Court had to confront in cases like National League of Cities v. Usery, New York v. United States. The sort of extrapolation appropriate in deciding such federalism issues is similarly appropriate where explicit in deciding such federalism issues is similarly appropriate where explicit constitutional text provides little help in deciding separation of power issues, such as questions of presidential privilege and immunity or questions of congressional standing. (Pages130-131)
Missouri v. Holland, 252 U.S. 416 (1920)
Congress had passed laws regulating the hunting of migratory waterfowl on the basis that such birds naturally migrated across state and international borders freely, and hence the regulation of the harvest of such birds could not realistically be considered to be province solely of individual states or groups of states. Several states successfully sued to have the law declared unconstitutional, on the premise that the United States Constitution gave Congress no enumerated power to regulate migratory bird hunting, and hence the regulation of such hunting, if there was to be any, was the province of the states according to the Tenth Amendment.
Congress then empowered the State Department to negotiate with the United Kingdom, which at the time still largely handled the foreign relations of Canada, a treaty pertaining to this issue. The treaty was subsequently ratified and came into force, and required the Federal Government to enact laws regulating the capturing, killing, or selling of the protected migratory birds, an obligation that it fulfilled in the Migratory Bird Treaty Act of 1918. The state of Missouri then sued on the basis that the federal government had no authority to negotiate a treaty on this topic.
Justice Oliver Wendell Holmes said: “With regard to that we may add that when we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to preserve that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago. The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment. We must consider what this country has become in deciding what that amendment has reserved”.
Alden v. Maine, 527 US 706 - 1999
Congress cannot abrogate State’s sovereign immunity. States pre-exist the constitution and all powers not delegated by the States to the Union are reserved. Congress cannot commandeer states and local authorities under the 1789 constitution. “Sovereign immunity of the States neither derives from nor is limited by the terms of the Eleventh Amendment. Rather as the Constitution’s structure, and its history, and the authoritative interpretations of by this Court make clear, the States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the constitution.”
Nixon v. United States,506 U.S. 224 (1993)
Judge Walter Nixon was impeached in 1989 for high crimes and misdemeanor. He challenged the procedure in the Supreme Court. Held that Non-justiciable political questions are not resolved by the Supreme Court.
Printz v. United States,521 U.S. 898 (1997)
The Congress enacted a federal statute requiring local authorities and sherrifs etc to carry out background checks on people applying for firearms. Court held: It infringes on authority and powers of federal executive and dilutes presidential powers. Note: Tribe believes the argument that structurally Congress cannot commandeer the state and local authorities since Congress acts on the people under the Constitution was a better one that federal authorities.
Metropolitan Washington Airport Authority v. Citizens for Abatement of Aircraft Noise, 501 U.S. 252 (1991)
The Court struck down a law that conditioned transfer of airports near Washington DC from the federal government to local authorities on the creation by those local authorities a “board of review” comprising nine members of the Congress. Held that the said board was subject to separation of powers review.
INS v. Chadha, 462 U.S. 919 (1983)
Chadha was an international student in the US who managed to persuade the Immigration and Naturalisation Service to let him remain in the US after his visa had expired. To his chagrin, the House of Representatives vetoed the suspension of deportation by a resolution.
House of Representatives’ legislative veto in the Immigration and Naturalization Act was considered a legislative act because it had the purpose of altering the legal rights, duties and relations of persons outside the legislative branch.
The Supreme Court held that all action taken by the Congress that is legislative in character must be taken in accord with the single finely wrought and exhaustively considered procedure set forth in the explicit and unambiguous provisions of Article I namely the Presentment Clause and the bicamerality requirement. Held that the presentment clause and bicamerality requirement constitute crucial structural restraints on the hydraulic pressure inherent within the legislature to exceed outer limits of its power and that bicamerality and presentment rules apply not just to when Congress purports to legislate but when Congress is deemed to legislate.
Mcculloch v. Maryland,17 U.S. 316 (1819)
The court determined that Congress had the power to charter the bank. Chief Justice Marshall supported this conclusion with three main arguments. First, he stated that the Constitution was a social contract made with the people of the United States at the Constitutional Convention. The government proceeds from the people and binds the state sovereignties. Therefore, the federal government is supreme, based on the consent of the people. Marshall declared the federal government’s overarching supremacy: "If any one proposition could command the universal assent of mankind, we might expect it would be this— that the government of the Union, though limited in its power, is supreme within its sphere of action." Second, Congress must act under explicit or implied powers of the Constitution. Pragmatically, if all of the means for implementing the explicit powers were listed, then we would not be able to understand or embrace the document; it would not be possible to write them all down in a brief document. And although the term "bank" is not listed in the Constitution, Congress enjoys express powers in the Taxing and Spending Clause, thus giving Congress the implied power to create the bank so as to better implement this express power. Third, Marshall supported the Court's opinion textually by invoking the Necessary and Proper Clause, which permits Congress to seek an objective that is within its enumerated powers so long as it is rationally related to the objective and not forbidden by the Constitution. In liberally interpreting the Necessary and Proper clause, the Court naturally rejected Maryland's narrow interpretation of the clause, which purported that the word "necessary" in the necessary and proper clause meant that Congress could only pass those laws which were absolutely essential in the execution of its enumerated powers. The Court rejected this argument, on the grounds that many of the enumerated powers of Congress under the Constitution would be useless if only those laws deemed absolutely essential to a power's execution could be passed. Marshall also noted that the Necessary and Proper Clause is listed within the powers of Congress, not the limitations.
Nevada v. Hall,440 US 410
The Respondents were residents of California, injured on a California highway when their vehicle collided with a vehicle owned by the University of Nevada that was being operated on official business. The California Supreme Court ruled that the Respondents could bring suit against the State of Nevada and that a Nevada law, limiting liability, did not apply. The trial court found against the State of Nevada and awarded respondents $1,500,000 in damages. Nevada appealed the decision and the California Court of appeals affirmed and the State Supreme Court denied review. Nevada then appealed the decision to the United States Supreme Court. The Court ruled that the Eleventh Amendment does not preclude suit against a state in the courts of a sister state. The Court ruled that sovereign immunity between states is a matter of comity and that since the Supreme Court of California gave respondents leave to sue, comity had been waived. Justice Stevens, writing for the majority, further argued that the Eleventh Amendment provided no bar to suit because it is specific to suits brought in federal court, while the pending matter was a state court issue. He did conclude that states might be advised to voluntarily grant immunity to each other or at least agree to respect each other's statutes limiting liability in order to maintain friendly interstate relations.
Living Tree Doctrine (Canadian Constitutional Law)
This is known as the Doctrine of Progressive Interpretation. This means that the Constitution cannot be interpreted in the same way as an ordinary statute. Rather, it must be read within the context of society to ensure that it adapts and reflects changes. If constitutional interpretation adheres to the Framer's Intent and remains rooted in the past, the Constitution would not be reflective of society and eventually fall into disuse.
The Honourable David C. McDonald, Legal Rights in the Canadian Charter of Rights and Freedoms, Second Edition
A third consequence of the Charter being a constitutional instrument is that its interpretation is to be approached in a manner that is different from that of an ordinary statute. Even before the Charter, the provisions of the British North America Act, 1867 (now known as the Constitution Act, 1867) had given rise to judicial pronouncements as to its interpretation that have now been held to apply to the Charter. (Page 6)
Edwards v. Canada (Attorney General), 1929 3 W.W.R. 479 AT 489 (P.C.)
"The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits." (Lord Sankey)
Reference re Same-Sex Marriage  3 S.C.R. 698, 2004 SCC 79
“The ‘frozen concepts’ reasoning runs contrary to one of the most fundamental principles of Canadian constitutional interpretation: that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life.”