I have posted several answers to the 1997 exam. I offer them, without comment, as examples of the answers that were submitted. I generally found the answers imaginative and informed.
The Constitutional Court will be a judicial body with final authority over all constitutional issues, similar to the constitutional courts of Spain and Germany (CB-805; CB-773). The Court will be distinguishable from France's non-judicial Constitutional Council (Notes-11/6/97).
The Amendment's primary purpose is to create a body capable of impartially and efficiently producing a comprehensive, uniform, and consistent body of constitutional doctrine. The Supreme Court has failed to accomplish this, because the current system is flawed in four major ways.
First, the Supreme Court's appointment process has undue political influence and has failed to select the most qualified justices. Second, issues of constitutionality are frequently decided by lower courts, creating inconsistent interpretations. Third, the Supreme Court is anchored in the "case or controversy" language of Article III, which prevents it from resolving gaps in constitutional law that do not reach the Court via litigation (CB-775). Fourth, although Marbury implicitly established that Supreme Court cases have the effect of binding law, the Constitution does not expressly address to what extent the case law is binding (CB-774). Marbury v. Madison, 5 U.S. 137 (1803). The Amendment significantly alters the process of constitutionality review in order to solve the current system's shortcomings and to facilitate the formulation of a complete and consistent body of constitutional law.
The number of justices is higher than other courts (e.g., Spain: twelve justices) (HO-Constitutional Court), so as to dilute the influence of any one justice. The concept of judicial panels has its origins in the French Cassation Court (Notes-10/28/97). By sitting in panels vice en banc, the Court will be able to review and resolve more constitutional issues.
The requirement of non-lawyers springs from the German labor and administrative courts (CB-565). The Amendment compels lay justices, because constitutional issues are interwoven with American history, traditions, morality, values, and culture. Non-lawyers should be able to inject a dose of common sense when interpreting these non-legal issues.
The term length is less than the present term for federal judges (life) but more than the terms for justices in Germany (twelve years) and Spain (nine years) (CB-774; CB-805). The system of replacing one-third of the justices every five years is based upon the Spanish system (HO-Constitutional Court). Fifteen years is long enough for the justices to be independent, but the periodic replacements allow for new ideas to enter the Court.
The concept of a separate commission for selecting justices is utilized in Spain, where the General Council of the Judiciary selects two justices (HO-Constitutional Court). However, most constitutional court justices are selected through some type of political process. In Spain, the Government, Congress, and Senate appoint seven of the nine justices (HO-Constitutional Court). In France, the Presidents of the Republic, the Senate, and the Assembly appoint members to the Constitutional Council (HO-Constitutional Framework of France). Members of the German Constitutional Court are elected by two thirds of the Parliament (HO-Judicial Review). In the United States, the President nominates justices, whom the Senate must approve. See U.S. Const. art. II, § 2, cl. 2. Under the Senate's approval process, the quality and independence of a nominee are not scrutinized as much as her views about "hot" political topics.
The Amendment rejects the European and U.S. models for selecting justices and creates an appointment process that minimizes the intrusion of politics into the Court. The Amendment's process is grounded upon two American precedents.
First, the Amendment is based upon the "Missouri Plan," a practice used by many states. See James E. Lozier, The Missouri Plan A/K/A Merit Selection is the Best Solution for Selecting Michigan's Judges, 75 Mich. B.J. 918, 920 (1996). The Missouri Plan's purpose has been to eliminate the partisanship in state courts that resulted from popular elections of judges. See id. The Plan establishes an independent commission, composed of non-politicians. See id. The commission nominates three candidates for a judicial post, from whom the governor appoints one. See id. Just like the Missouri Plan, the Amendment's Judicial Commission is non-political and has the function of nominating candidates for the Court.
Second, the Amendment also borrows from the process used to close U.S. military bases. See Tyrus W. Cobb, Close the Bases Now, Washington Post, June 1, 1994, at A19. To exclude politics, a non-partisan commission submitted a list of base closures to the President, who could either accept or reject the entire list. See id. The Amendment's selection process is similar in that it only permits the President to accept or reject the Commission's list of nominees in toto. The purpose behind this "all-or-nothing" approach is to prevent the President from rejecting nominees who offend his politics.
The Amendment's selection process attempts to eradicate the first major problem of the current system: undue political influence in the appointment process, which has prevented the selection of the most qualified and independent candidates. The goal of the Judicial Commission is to bring qualified justices to the Court, who will make independent, non-political decisions.
The Amendment's process for constitutionality review by the lower courts is based upon the German system and rejects both the Spanish and French models. First, Spain's system is similar to the current U.S. system, in that all courts have the power to constitutionally invalidate a law (CB-587). An adoption of the Spanish approach would only perpetuate the second major problem of the current U.S. system: Constitutional decisions by lower courts create inconsistent constitutional law. For example, the Fifth Circuit has ruled that affirmative action is unconstitutional unless used for remedial purposes, yet in the other ten circuits, affirmative action continues. See Hopwood v. Texas, 95 F.3d 53 (5th Cir. 1996). Such inconsistencies cause inequitable administration of the law.
The French system is at the opposite extreme. Once a proposed law is enacted, no French court may invalidate it (CB-758). The Amendment rejects the French approach, because to prohibit any post-enactment constitutional review would violate a citizen's due process rights. Often laws which are constitutional on their face are later found to be unconstitutional when applied. See, e.g. Yick Wo v. Hopkins, 118 U.S. 356 (1886).
Under the preferred German model, courts do not have the power to declare laws unconstitutional, but courts may stay proceedings and refer a constitutional issue to the Constitutional Court (CB-773). Such a system creates uniformity and consistency, because only one court is making constitutional decisions, as opposed to a multitude of courts in Spain and the U.S. The German system is also preferable to the French system, because it adequately protects due process by allowing post-enactment constitutional review.
The Amendment does allow for one narrow exception from the German approach. Some rights, such as voting, equal protection, and due process, have been considered "fundamental." When it is clear "beyond a trace of doubt" that the government is violating a fundamental right, a lower court should be able to enjoin government action without having to wait for a Constitutional Court ruling. An example of being "beyond a trace of doubt" would be a governor who bars African-Americans from a university because of their race. In order to check lower court abuse in using this narrow exception, the Constitutional Court must promptly review any appeal of an enjoined executive act.
Presently, the Supreme Court is basically limited to one method of reviewing the constitutionality of laws: granting certiorari review of lower courts' cases. This limitation is the third major problem with the current system and has caused constitutional law to be plagued with gaps. A recent example is the Piscataway case, which concerned affirmative action by a school board. Since this case was settled and not decided, a gap remains in the law of equal protection. See James K. Glassman, Buying Off Justice, Washington Post, Nov. 25, 1997 at A18. By adopting European processes of constitutionality review, the Amendment broadens the tools available to the Constitutional Court to fill the gaps in constitutional law.
Preventive judicial review originated in France and was later adopted in Spain (CB-805). (Preventive judicial review is a misnomer, because it is not a truly judicial process.) The Amendment's preventive judicial review is similar to the French model, except that neither the minority in the House or Senate are able to request constitutional review of proposed bills (CB-543). Such a provision would probably be abused, as it is in France, by a minority in order to hinder a majority's legislative proposals (Notes-11/6/97). The Amendment also expands beyond the French model by allowing governors to request a ruling from the Court on pending state legislation.
Preventive judicial review will promote efficiency, because legislators will not have to pass a law and then wait for protracted litigation and a court ruling to determine a law's validity. For example, the proposed Constitutional Court could have already resolved the issue of whether the recent line-item veto bill was constitutional, so long as the President, House Speaker, or Senate Majority Leader requested a review. In contrast, under the current system, the nation has to wait for a plaintiff with standing in order for the law to be clarified.
Abstract norm control is a process of constitutionality review used in Germany and Spain, and it is distinguishable from preventive judicial review, because the review occurs after, not before, a law's enactment (CB-805; CB-773). The Amendment is different from the German model in that only a minority in either house of Congress or a percentage of state governors may challenge a law under abstract norm control (CB-773).
The first purpose of the Amendment's abstract norm control is to counter-balance the majority's power to seek constitutional review under preventive judicial review. Allowing the minority to challenge a law after its enactment is more efficient, because it will curb abuses of attempting to stall legislation in pre-enactment stages. The minority would not be able to prevent a the passage of a law, such as the line-item veto, under abstract norm control. However, the minority could quickly obtain a constitutional resolution, if the majority, knowing a law's constitutionality was dubious, had refused to seek preventive judicial review.
The second purpose of the Amendment's abstract norm control is to protect federalism. State governments are often injured indirectly when Congress passes laws that overextend the federal government's power, but the state has insufficient standing under the current system to sue in court. To protect the states, the Amendment allows a percentage of governors to seek a post-enactment review from the Court.
The Amendment's concrete norm control strictly conforms with the German reference procedure (HO-The German Constitutional Structure). Concrete norm control is similar to the current American system in that a case will reach the Constitutional Court through the lower courts. However, unlike the present process, the lower courts will not decide the constitutional issue but only defer it. Additionally, unlike the Supreme Court, the Constitutional Court will not resolve non-constitutional issues. Concrete norm control is a necessary process, so that constitutional disputes arising during litigation may be resolved.
Individual complaint is a process originating from Germany and Spain that is procedurally distinguishable from the current American system (CB-805; CB-773). First, an individual is not appealing to the Constitutional Court but rather is filing a complaint, just as a plaintiff does in a trial court. Second, unlike the Supreme Court, the Constitutional Court will be obligated to hear the complaint and will not have the discretion to deny review. This mandatory vice discretionary review should prevent the Constitutional Court from avoiding difficult issues like the current Supreme Court frequently does.
The individual complaint is a necessary process, because it serves as a safety net for any unconstitutional acts which the first three methods fail to catch. If no constitutional review request is made through preventive judicial review, abstract norm control, or concrete norm control, a citizen may still protect his rights by filing a claim directly with the Court.
The Amendment's four processes for constitutionality review should give the Constitutional Court more tools than the Supreme Court currently has to fill the gaps of constitutional law. By using these tools of constitutionality review, the new Court should be able to effectively provide a comprehensive and complete body of constitutional doctrine.
The Amendment adheres to the German model, under which the Constitution expressly recognizes that the Constitutional Court's decisions have the force of law (CB-759). Germans decisions are added to the Federal Gazette alongside statutes. (HO-Judicial Review) A decision not only binds the two parties in the dispute, but it binds all branches of government (CB-759).
The current U.S. system has been basically the same as the German system in a de facto manner. Marbury established the supremacy of the judicial branch in determining the meaning of the Constitution. Marbury, 5 U.S. at 137. However, the fourth major problem with the current system is that the reach of the Marbury decision has been periodically questioned, as some government officials have attempted to claim that the Supreme Court's decisions are only binding upon the parties. See, e.g. Cooper v. Aaron, 358 U.S. 1 (1958).
The Amendment expressly designates that the Court's decisions will have the force of law. The Constitutional Court, unlike the present Supreme Court, will not have to resort to judicial fiat for its power, but it will be able to cite a specific provision in the Constitution. Removing any doubt as to the binding effect of decisions will empower the Court to precisely set forth comprehensive constitutional doctrines.
The Amendment changes the current system of constitutionality review to solve four major problems that have prevented the Supreme Court from producing a coherent, comprehensive body of constitutional law. First, the Amendment establishes an independent Commission to select Constitutional Court justices, so as to diminish the political influence upon the Court. Second, to prevent the development of inconsistent constitutional doctrines, lower courts are barred in almost all cases from constitutionally invalidating laws. Third, the Constitutional Court is empowered with four means of constitutionality review so it can fill all the gaps of constitutional doctrines. Fourth, the implicit holding of Marbury is expressly incorporated into the Constitution, so there can be no doubt as to the binding effect of Constitutional Court decisions.
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Ladies and gentlemen of the Senate, the area of constitutionality review has its roots in the American common law, specifically in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). In Marbury, the United States Supreme Court declared that the judiciary should be the branch of the government to decide on the constitutionality of the law. Even though there were numerous debates and criticisms as to Chief Justice John Marshall's rationale for making such declaration, the doctrine has since become the backbone of the American judicial system. Indeed, it has worked very effectively and efficiently over the 200 years of our nation's history and has served as the model for other nations building constitutionality review systems.
The only negative aspect of our current constitutionality review doctrine is that it is uncodified in the United States Constitution. To the average person, the judiciary is the most mystical branch of our government because it lacks descriptions in the Constitution. As of today, Article III of the Constitution briefly establishes the judicial branch, and section 2 of Article III quickly glosses over the scope of the Supreme Court's jurisdiction. There is no provision on the number of justices in the Supreme Court or provision on the length of service of the justices. But most importantly, there is no provision as to who gives the final review on the constitutionality of the law and how the review operates. Meanwhile, the qualifications, term limits, and duties of both the legislative and executive branches are amply spelled out in Article I and II of the Constitution and also in the Amendments.
Students beginning to learn about the American government cannot refer to the Constitution and find the fundamental concepts of our common law judiciary system. Instead, they often have to rely on interpretations of Marbury v. Madison from secondary sources to understand that the judiciary interprets the law. Such an important and central duty of the United States Supreme Court ought to be found in the primary source: the United States Constitution. Other countries, such as France and Germany, have codified the doctrine into their constitutions. Albeit these countries are civil law countries that call for codification, the benefits of a clearly spelled out doctrine, even in a common law country, only make for better application of the law.
Therefore, in the continuing spirit of familiarizing the American people with our government, I propose a constitutional amendment to codify the doctrine and the process of constitutionality review. Nonetheless, despite the effectiveness and efficiency of our judiciary during the last 200 years, the fact that our Supreme Court consists of only nine justices have resulted in many rejections of meritorious constitutional cases. Thus, I further propose in the amendment that we moderately expand the number of Supreme Court justices to twenty-seven and the scope of constitutionality review to include advisory opinions. This will help alleviate confusions and discrepancies between the lower appellate and district courts when the Supreme Court could not decide on a particular constitutional matter.
The amendment shall state that the United States Supreme Court shall have the final word on the constitutionality of executive, legislative, or judicial actions. This is a mere codification of Marbury v. Madison, in which Chief Justice Marshall stated that the Supreme Court could not merely apply the law blindly without questioning its constitutionality at the same time. Many critics of the opinion have argued that Congress could also have been the ultimate interpreter of the law since the Constitution was silent on the issue. The best policy counterargument is that unlike Congress, the judiciary is not political, therefore it would not succumb to political pressures of congressional constituents and lobbying groups and be more likely to represent the minority's viewpoints.
Nevertheless, we should reject creating a separate body to review the constitutionality of legislations and governmental actions because it would not be beneficial to our system of government. For example, the French system of the separate Constitutional Council and the Council of State from the ordinary judiciary is too complex and bureaucratic. First, these administrative constitutional review tribunals lay within the executive (regulatory) branch of the government (CB-542). Even though they are "independent" from the executive branch (CB-543), under our system, such bodies will be presumed to have violated the separation of powers doctrine. Second, the Constitutional Council is useful only when its political members (and only its members, whom are former presidents and nine other members appointed by the President of the Republic, of the Senate, and of the Assembly) challenge the validity of a recently-passed legislation before the president of France signs it into effect (Constitutional Framework of France handout). When a law has been enacted, a citizen can only challenge the validity of the law's application upon that citizen by bringing suit in the administrative tribunals which might reach the Council of State upon appeal (CB-543, 550). Third, the French system does not allow for the invalidation of a law after enactment (CB-543). Thus, in the United States, if there had been a law permitting slavery, the law would still stand as of today; only its application had been invalidated through the 13th and 14th Amendments. Think of the potential outcry from the African-Americans when they see that the law is still on the books!
In that respect, the German model of a separate Federal Constitutional Court seems to be better than the French model because the German model allows for the invalidation of enacted laws. In fact, the Constitutional Supremacy concept, more specifically the "eternity clause", forbids any infringement of the Basic Law by any legislation (CB-555). Furthermore, unlike the French model, the German Federal Constitutional Court is only one body, thereby streamlining the review process.
Nevertheless, creating a separate body specifically to review the constitutionality of actions and legislations would be bureaucratic and time consuming. Cases accepted by the U.S. Supreme Court almost always deal with constitutional issues anyway. Having to defer to a specialized body to review the constitutional issues would not quicken the pace of the appeal. In fact, it might even hinder the process by creating decisional inconsistencies between the justices and the constitutional review body. Because of our common law system and the historical development of our nation, our judiciary can combine its normal adjudication of cases with constitutionality review. Therefore, our Supreme Court is the equivalent to the French and German constitutional administrative courts.
The amendment shall state that the process of appointing Supreme Court justices shall be as provided in the Constitution, with the advice and consent of the Senate, the president shall nominate and appoint justices to the Supreme Court (U.S. Const. art. II, § 2, cl. 2). However, the number of justices shall triple to twenty-seven, giving three panels of nine justices, theoretically tripling the number of cases accepted by the Supreme Court. Although the increase
in the number of justices is nowhere near the hundreds of judges in the Cour de Cassation, the rationale is essentially the same: to hear more cases.
The qualifications for becoming a Supreme Court justice shall remain the same. All of the current Supreme Court justices come from diverse backgrounds. Justices O'Connor and Souter came from their respective state judicial systems, while the other justices, with various backgrounds as law professors, private practitioners, special counsels, and attorney generals, came from federal courts of appeals. The length of service of a justice shall also remain the same, which is life-term unless impeached by the Senate (U.S. Const. art. I, § 3, cl. 6).
However, in no circumstances shall the selection process become an election process. The most important characteristic of the Supreme Court is its non-political affiliation. Justices are not political leaders like the president and members of Congress; they are officers of the court sworn to uphold the law. The application of the law and justice must be fair and blind. If the position of a Supreme Court justice, a position that is extremely powerful and influential to the course of American legal policies, was an elected position, then it is highly probable that those with the most financial support from interested lobbying groups would succeed in becoming Supreme Court justices. Even though the justices now are appointed and approved by political figures in the government, the process lacks the direct influence from interested groups that would seek favors from the justices if the justices had been elected with the groups' support.
The selection process of justices in the Spanish Constitutional Court appears to be compatible with the American process: four are elected by Congress (3/5 of majority), four by the Senate (3/5 of majority), two by the government, and two by the general council of the judiciary, all of whom then are formally but nominally appointed by the king of Spain (CB-587).
A third of the justices will be reappointed every three years (CB-587). Furthermore, these justices must have fifteen years of experience prior to appointment, serve only a nine-year term, and must not hold any concurrent offices within the government (CB-587). Other than the term-limit and term-rotation differences, both the American and Spanish systems look for experienced law professionals that would be as unbiased as possible while serving in the judicial office.
Both the state and federal courts shall still be able to rule on the constitutionality of governmental actions. Likewise, their decisions shall be subject to appeals to the Supreme Court. The rationale is that if and when it can, the Supreme Court should be the ultimate arbiter of constitutional issues. Conversely, if the Supreme Court rejects the appeal, the lower court has already adjudicated the issue, and the case would not be in limbo because the Supreme Court has denied certiorari.
This is procedurally different from the French and German constitutional appellate procedures. The French Council of State reviews references by the lower administrative tribunals (Constitutional Framework of France handout). The German Federal Constitutional Court reviews references from lower courts whose proceedings had been stayed pending the Court's review (CB-560, The German Constitutional Structure handout). Since in both systems the constitutional courts have the final say on constitutional matters, the lower courts cannot continue until the resolution of the constitutional matter.
The only procedure in our federal system that remotely resembles the reference procedure in Germany and France is the interlocutory appeal (28 U.S.C. § 1292). However, a § 1292 appeal requires a finding of "substantial ground for difference of opinion and that an immediate
appeal from the order may materially advance the ultimate termination of the litigation" and an acceptance by the court of appeals (28 U.S.C. § 1292). Unless the party making the appeal can satisfy the high requirements, it's unlikely that the interlocutory appeal will be successful.
Our common law system operates under the stare decisis principle. This means our courts work under a system of faith and trust in which lower courts must faithfully apply the wisdom of precedent case laws, and the Supreme Court trusts that the lower courts will apply the laws faithfully. When the Supreme Court rejects an appeal, at least one presumption is that the lower court's decision (usually a federal court of appeals) did not violate any constitutional precedents, and thus the decision is valid even without constitutional review. Nonetheless, even with the proposed increase in the number of justices, requiring judicial reference on constitutional matters would only constrict the daily operations of the Supreme Court and create unnecessary breaks into the trial proceedings.
The current American appellate system already allows for incidental challenges on the constitutionality of the law (CB-759). The challenge is incidental when the resolution of the constitutional question is incidental to the resolution of the case and controversy (CB-759). However, this "case and controversy" scope of review, which is found in Article III, § 2 of the Constitution, is too limited. With the expansion of the number of justices in the Supreme Court, the Court's jurisdiction ought to be expanded as well. Specifically, the Court should be able to give advisory opinions. These advisory opinion requests can be raised by those with special standing: Congressmen, the President, and judges. The German system allows for this type of governmental reference by certain federal institutions such as the Bundestag or the state government (CB-568).
However, the emphasis on the inclusion of advisory opinions should be placed upon judicial references. Often, the Supreme Court declines to comment on a legitimate issue of law because the issue is uncontroverted. However, a comment by the Court might prevent subsequent litigations. For instance, in a tax case, Crane v. Commissioner, 331 U.S. 1 (1947), the Supreme Court held that a seller must include any nonrecourse debt taken subject to by a buyer in the amount realized. Meanwhile, in a footnote, the Court raised a question: when the nonrecourse debt is greater than the value of the property, and the seller could walk away from paying the debt, must the seller still include the nonrecourse debt in the amount realized?
This advisory opinion question was not addressed until 1983, when Commissioner v. Tufts, 461 U.S. 300 (1983), was decided. The Court in Tufts held that the seller still has to include the nonrecourse debt in the amount realized. However, during the thirty-six years prior to Tufts, the Third and Fifth Circuits disagreed on the resolution of the issue, and the differences of the opinions created even more uncertainty in the area of nonrecourse debt. If the Supreme Court had resolved the advisory opinion question back in 1947, the subsequent cases might not have been necessary. Therefore, we should consider a procedure similar to Germany's direct constitutional review in which certain agencies can bring an action before the Court to test the validity of a statute (or a case law doctrine for our system) even though there is no case or controversy (CB-759-60, Judicial Review handout).
On the other hand, the Court should not have original jurisdiction with respect to direct citizen complaints. The concept is very attractive because it embodies the notion of fairness and justice for the masses. Germany permits this direct complaint procedure to the Constitutional Court for a citizen who has exhausted all available remedies and has standing (CB-560-61, The German Constitutional Structure). This procedure accounts for about 97% of the Constitutional Court's dockets (CB-568). However, because our country has a population of over 250 million people, this procedure would be impossible to implement, even if we require the exhaustion of remedies and standing. If the percentage were of any indication, any attempt to permit direct complaints would seriously halt the activities of the Supreme Court, turning it into another backlogged government office.
Finally, the Supreme Court's decision shall always be binding upon all parts of the government in the United States: federal, state, and local, and all parties involved in the proceedings. The nature of our judicial system -- a common law system that follows stare decisis-- requires the parties to follow prior Supreme Court's decisions pertinent to the adjudication of a case. Furthermore, in order to give credence to the Supreme Court, governmental entities must not act inconsistent with the decisions of the Supreme Court.
Our overseas allies apparently agree. The French Constitutional Council's decisions are final, unappealable, and binding on all branches of the government and all administrative and judicial officials (CB-543). Decisions of the Council of State are also binding on the actions of administrative agencies and officials (CB-545). Similarly, in both Germany and Spain, the Constitutional Courts have the final say on constitutional matters and their decisions are binding to all parties to the case and to all participants in the legal process (CB-759).
Conclusion
To summarize, the following is a list of the areas covered by the proposed amendment:
The proposed amendment only increases the number of justices in the Supreme Court and expands the scope of the Court to include the review of advisory opinions. It does not affect the doctrine of stare decisis in any way. We are still a common law system of government, and a clarification of the judicial branch in the U.S. Constitution is a way of educating the American people.