Ch9. Constitutional Review — Judicial Review, Equal Protection, and the First Amendment

Overview of Constitutional Review

Source: Art. III + Marbury v. Madison (1803)
Role: protect constitutional rights + constrain government power

Supreme Court composition:
- 9 Justices
- No fixed terms (life tenure, Art. III good-behavior clause)
- Appointments:
  President nominates; Senate confirms
  (simple majority since 2017 "nuclear option")

Quorum:
- 6 Justices required for a quorum
- Decisions on the merits require majority of participating
  Justices; 4-4 ties affirm the lower court without precedent

Supermajority thresholds (constitutional amendments):
- Two-thirds of each chamber of Congress to propose
- Three-fourths of states (38) to ratify (Art. V)

Five Core Powers of Constitutional Review

① Statutory constitutional review: invalidate acts of Congress
   or the states that violate the Constitution
② Impeachment trial: Senate tries impeached federal officers
   (Chief Justice presides at presidential impeachment trials)
③ Election law review: review of voting rights, districting
④ Separation-of-powers disputes: resolve conflicts between
   branches (e.g., executive privilege, legislative standing)
⑤ Individual rights enforcement: enforce the Bill of Rights
   and 14th Amendment against government action

Equal Protection and Levels of Scrutiny

14th Amendment Equal Protection Clause (applies to states;
5th Amendment Due Process applies same standard to federal gov't)

Rational Basis (default):
- Law must be rationally related to a legitimate government interest
- Very deferential; rarely struck down
- Used for: economic regulation, social welfare, most legislation

Intermediate Scrutiny:
- Law must be substantially related to an important government interest
- Used for: sex/gender classifications, illegitimacy

Strict Scrutiny:
- Law must be narrowly tailored to achieve a compelling
  government interest
- Used for: race, national origin, alienage (most cases),
  fundamental rights (voting, speech, travel, privacy)
- Presumptively unconstitutional; rarely survives

Fundamental Rights under Due Process:
- Substantive due process protects unenumerated rights
  (Griswold v. Connecticut — privacy; Obergefell — marriage equality)
- Procedural due process: notice + hearing before deprivation
  of life, liberty, or property

First Amendment — Free Speech Doctrine

First Amendment: "Congress shall make no law...
abridging the freedom of speech, or of the press."

Content-based restrictions:
- Presumptively unconstitutional
- Subject to strict scrutiny
- Government cannot restrict speech because of its message
  (viewpoint discrimination is absolutely prohibited)

Content-neutral restrictions (time, place, manner):
- Intermediate scrutiny
- Must be narrowly tailored to a significant government interest
- Must leave open alternative channels of communication

Unprotected categories (may be regulated):
- True threats
- Incitement to imminent lawless action (Brandenburg v. Ohio)
- Obscenity (Miller test)
- Defamation (with actual malice requirement for public figures
  — New York Times v. Sullivan)
- Fighting words (Chaplinsky v. New Hampshire)

Prior restraint:
- Nearly always unconstitutional (Near v. Minnesota)
- Government cannot forbid publication in advance

Impeachment Process (Federal)

House impeachment:
- House Judiciary Committee investigates and recommends articles
- Full House vote: simple majority to impeach
- No supermajority needed in the House

Senate trial:
- Chief Justice presides at presidential impeachment trials
- All other impeachments: Vice President or President pro tempore
- 2/3 of Senators present required to convict and remove
- Judgment: removal from office; optional disqualification
  from future federal office (requires separate majority vote)

Post-removal:
- Removed officer faces no bar to criminal prosecution
  (Art. I, §3: judgment does not extend further than removal
  and disqualification; party remains liable to prosecution)

Grounds (Art. II, §4):
- Treason, bribery, or other high crimes and misdemeanors

Separation of Powers Disputes

Who resolves branch-vs-branch conflicts?
- Federal courts (ultimately the Supreme Court)
  have jurisdiction over justiciable separation-of-powers claims
- Political question doctrine: some disputes (e.g., how Congress
  conducts impeachment) are non-justiciable

Key doctrines:
① Non-delegation: Congress may not delegate core legislative
  power without an intelligible principle
② Executive privilege: President has qualified privilege for
  internal communications (U.S. v. Nixon — privilege yields
  to specific criminal evidence needs)
③ Legislative standing: Congress members generally lack standing
  to sue for institutional injury in federal court
④ Youngstown framework (Steel Seizure Case):
  - Zone 1: President acts with express or implied Congressional
    authorization → maximum power
  - Zone 2: Congress silent → President acts on own authority
    in a "zone of twilight"
  - Zone 3: President acts against expressed Congressional will
    → lowest power, must rely solely on Art. II authority

Three-tier Scrutiny Framework ★★★★★ : Rational basis (default), intermediate scrutiny (gender), strict scrutiny (race/fundamental rights). Strict scrutiny is nearly always fatal. Memory hook: rational → intermediate → strict = more protected

First Amendment — Prior Restraint ★★★★★ : Government almost never may prevent publication in advance. Content-based restrictions are presumptively unconstitutional. Viewpoint discrimination is absolutely prohibited. Memory hook: prior restraint = almost never allowed

Constitutional Amendment Threshold ★★★★☆ : Propose: 2/3 of each chamber (or 2/3 of states via convention). Ratify: 3/4 of states (38). No presidential veto on amendments. Memory hook: 2/3 propose → 3/4 ratify

Practice Quiz

Q. Why can’t a convicted and removed federal official use impeachment as a shield against criminal prosecution?

Art. I, §3 expressly states that the “party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.” Impeachment and criminal prosecution are separate proceedings serving different ends — removal from office vs. criminal accountability.

Q. Under Youngstown, when is a President’s unilateral action at its weakest?

In Zone 3 (Jackson’s concurrence): when the President acts in direct defiance of an expressed act of Congress, the President’s power is at its lowest ebb — the President can rely only on Art. II authority minus whatever Art. I gives Congress. Courts are most likely to strike down such action.