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Constitutional Law I
Rutgers University, Newark School of Law
Payne, John M.

Constitutional Law Outline

I.                    Judicial Review
a.        Court has the power to declare legislation or executive acts unconstitutional (Marbury)
i.      Implied power of the court
1.        Inferred from written Constitution
2.       Necessary to the judicial role in interpreting law
3.       Court must decide what the law is when statutes and Constitution conflict
b.       Supreme Court’s interpretation of the Constitution is exclusive
i.      State’s interpretation cannot override Supreme Court
ii.      Executive has very limited discretion to ignore the court—must execute the law, and Supreme Court decisions are the law
iii.      Congress can, of course, legislate after a law has been struck down, but it must do so in line with the Supreme Court’s interpretation of the Constitution
c.        Supreme Court has the power to review federal constitutional decisions handed down by the state courts (Martin)
i.      Article III gives Supreme Court appellate jurisdiction over ALL cases arising under the Constitution
ii.      There is no state sovereignty over constitutional interpretation
iii.      Interpretation of the Constitution must be uniform throughout the nation
iv.      Martin v. Hunter’s Lessee (parallel to Marbury)
The Court held that it was constitutional for Congress to vest the Supreme Court with the power to review decisions of the state courts in cases arising under the Constitution.
Justice Story justified his holding by emphasizing the need for a centralizing force to harmonize the different interpretations of the Constitution that will occur in a federal system. He also pointed out that there needs to be a check on the individual states’ interests, jealousies, and prejudices that might sometimes prohibit the administration of justice.
In order to arrive at his conclusion, Justice Story reasoned that because the Constitution vests in the Supreme Court appellate jurisdiction in all cases where it does not have original jurisdiction, and because Congress was not obligated by the Constitution to create lower federal courts, then if Congress choose not to create lower federal courts the only way the Supreme Court could exercise its appellate jurisdiction is over the state courts. He reinforces his conclusion by referring to Art. VI, which requires state judges to take an oath to uphold the Constitution.
Three ways to interpret the Constitution:
(1) Look at the original intent of the Framers.
(2) Look at the governmental processes established by the Constitution.
(3) Look at the fundamental principles embodied in the Constitution.
MARTIN: The Virginia ruled for the lessee. Lessee appealed to the Supreme Court sent the case back to Virginia and commanded the Court of Appeals to enter judgment for the claimant. The Court of Appeals refuses to enter such judgment because it feels they’re separate sovereigns and, thus, Section 25 of the Judiciary Act is unconstitutional. The Supreme Courts kills that argument.
à RULE: Though the state and federal systems are parallel, state court decisions are subordinate to rulings by the U.S. Supreme Court.

1) Justice Story: It makes no sense to have a system of judicial review and have no review of state decisions
2) Though the court establishes that its rulings reign supreme, it does not address its ability to compel compliance with its rulings from the lower courts. This shows an effort to maintain sovereignty of the state and federal systems.
3) The Supreme Court’s power allows efficacy and uniformity of decisions throughout the nation. Without this type of structure, the results and problems that would arise would be innumerable
4) Section 25 of the Judiciary Act reinforces the strength of the Supremacy Clause

Explain why Martin was justified on the basis of the need for “uniform decisions.” Subordinating state-court decisions to the Supreme Court is conducive to ensuring efficacy and consistency of decisions nationwide and avoids the multitude of problems that could arise from lack of such structure (like citizens being deprived of rights in one state but getting them in other states)
à Story wrote, there is a need for uniformity in decisions throughout the nation interpreting the constitution. “If there were no revising authority to control these jarring and discordant judgments, and harmonize them into uniformity, the laws, the treaties and the constitution of the US would be different in different states.”

In what sense is Martin more important than Marbury? It’s created a structure through which the state courts are subordinate to the Supreme Court, which helps to maintain precedential uniformity and efficiency of the federal legal system. Further, judicial review would be diluted if it wasn’t applicable to the states.

d.       Court will not review a decision from a state court that rests on adequate and independent state grounds
i.      State court decision must be adequate
ii.      State court decision must be independent of federal law
iii.      State court opinion must clearly state that it is relying on state law to reach its decision
iv.      The Supreme Court has the power to correct state decisions only to the extent that they wrongly adjudge federal rights. This preserves the principal of dual sovereignty.
v.      Even if the state says it’s deciding on state grounds, the case could still be reviewed if the state was wrong (Dale v. Boy Scouts). ‘Adequate’ or ‘independent’ doesn’t apply when:
1.              State court holds state law co-extensive with federal law
2.             State law bases itself on federal law
3.             Independence of state law based on case’s merits (ignoring applicability of federal law)
4.             State law provides less protection than the federal law or Constitution requires for a party

There are 2 branches of the analysis:
1. Procedural: (Adequacy) When state court refuses/fails to rule on merits of the federal issues because they weren’t presented in the way required by state procedure
— There is always a question of how to define “adequacy”2. Substantive: (Independent) When the state court decides on an independent substantive ground that will be dispositive regardless of how the federal issue is decided
e.        Judicial review is counter-majoritarian
i.      Congress represents the political majority
ii.      Congress is often intolerant of the political minority
iii.      Since the Constitution often protects the political minority, and the court is politically isolated, the court is in the best position to level the playing field
iv.      Thus, judicial review advances the democratic process.
f.        Judicial review is also said to be anti-democratic
i.      Federal Judges are not elected, they are appointed.
ii.      Thus, judicial review is not expressing the will of the people in the democratic sense because they are not elected by the people
g.        Judicial review stabilizes the meaning of the Constitution between the three branches of government
h.        It is difficult to correct any errors of interpretation by the Supreme Court
i.         Judicial review can be limited by amendment, appointment, or impeachment.
j.         Marbury v. Madison
The Court held that it could not issue a writ of mandamus to the Secretary of State ordering him to deliver a judicial appointment, because the congressional enactment that gave the Court the power to issue such a mandamus (§13 of the Judiciary Act of 1789) was unconstitutional.
1.        Chief Justice Marshall used this case to create the power of judicial review. Marshall declared that the Constitution is the supreme law of the land and therefore any legislation repugnant to the Constitution is void. It is the role of the Court to interpret the Constitution and to determine whether a law is in fact constitutional.
2.       Note that Marshall’s textual basis for judicial review is Art. III, §2, the Supremacy Clause, and the part of Art. VI that makes judges take an oath to protect the Constitution. However, nowhere in the text of the Constitution is judicial review explicitly mentioned.
3.       Judicial review was not a concept pulled from thin air by Marshall, it was mentioned in the Federalist Papers and is said to be intended by the Framers.
4.       At the time this case was politically controversial, not because of Marshall’s holding, but because of the feud between the Federalists and the Republicans. Marshall’s opinion was extremely shrewd because while he gave President Jefferson a technical victory by holding that the Court could not order the commission to be delivered to Marbury, he won a substantive victory for himself by placing the power of judicial review into the hands of the Supreme Court.
5.       Note that the dicta in Marshall’s opinion talks of how Marbury has a legal right to his commission. However, Marshall did not go so far as to order the delivery, because he would have had no means of compelling Jefferson to obey such an order.
6.       What if there was no judicial review?
7.       Congress would be able to make unconstitutional laws and the judiciary would have no recourse. The president could veto the law then congress could overturn it.
MARBURY: Marbury and others were appointed justices of the peace during President Adams’s administration. Their commissions were signed and sealed by then-Secretary of State John Marshall, who was appointed chief justice of the Supreme Court, at the eleventh hour (midnight judges). However, the commissions were not delivered before Marshall’s term expired. The Jeffersonian Republicans came into power and it hated the Adams administration (Federalists). The new Secretary of State, James Madison, refused to deliver the commissions as instructed by President Jefferson. Marbury brought an original action against Madison in the Supreme Court, where the case was heard before Justice Marshall (conflict of interest)
à RULE: The Supreme Court has original jurisdiction only in those cases specified by Article III of the Constitution
à RULE 2: The Supreme Court has the power to review and override a legislative act that is repugnant to the Constitution (judicial review)
What is the relationship between the Marbury power and Congress’ control over the jurisdiction of the federal courts? The Court is the ultimate arbiter of the Constitution’s meaning/federal courts will determine what the law is in ONLY those cases that Congress allows to come before it.
1) This decision was unique and controversial because it authorized judicial review, which wasn’t expressly listed in the Constitution. The court would be the final arbiter of rights and interpretation of the Constitution
2) The decision of the executive is conclusive. Officers/agents of the president are “organs” through which the president’s will is voiced. Thus, their job-related acts cannot be reviewed by courts. However, when individual liberties are compromised by the performance of arbitrary acts by the officer, the discretionary power is no longer a shield. In such case, the aggrieved has a legal remedy
3) Mode of analysis for:
a. Has a legal wrong been committed? (Here, yes. He’s entitled to the office)
b. Is there a remedy for the legal wrong? (Yes, for every wrong against a right, there’s a remedy. Writ of mandamus here)
àIf this has been a granted discretionary act within the president’s power, there would have been no remedy even if              arbitrary because the president has that right.
à Marshall uses this section as his bully pulpit from which he can lecture Jefferson about his conduct. He also speaks on         the merits of the case by leaving the jurisdiction question last
c. Does the court have jurisdiction to hear the case? (NO)
à The Constitution doesn’t give Congress the authority to determine whether a mandamus issuance can only be given in an         appellate capacity or cases specifically deemed for original jurisdiction. Though it could be argued that Congress should be         able to expand jurisdiction under the E & R clause, the Court rules that Congress’s Section 13 of the Judiciary Act must be         overturned because it’s unconstitutional
4) Random: Alien Sedition Act is analogous to the USA Patriot Act
5) Marbury might’ve brought the case 10 months later th

hough Congress can determine the appellate jurisdiction of the courts, it cannot intervene in the decisions of the court because it would violate the separation of powers and invade the judicial function
·         This case stands for the proposition that “Any jurisdictional limitation must be neutral; that is, Congress may not decide the merits of the case under the guise of limiting jurisdiction.

§          What is the distinction between McCardle and Klein? Forum and substance. In McCardle, closing the door to the forum is allowed under the Constitution. In Klein, using that power to achieve a certain substantive outcome when a case is pending isn’t authorized. This would enable Congress to pre-empt the court’s power.

§          What are the 2 ways that Congress violated the doctrine of separation of powers by withdrawing appellate jurisdiction?
1. It pre-empted the judiciary’s power to decide the case                             
2. It invalidated the president’s power by denying effect to his pardon
§          ARTICLE III, Sec. 2 (Exceptions and Regulations clause): Congress can regulate appellate jurisdiction. It derives a great deal of power from this clause. It can allow a case to come in at the trial level, up to the Court of Appeals, and stop it there.
§          à The court can withdraw jurisdiction so long as the case isn’t pending and the withdrawal isn’t done to achieve a substantive result (McCardle & Klein). Congress may regulate appellate jurisdiction but it can’t categorically stop a case from being heard at the federal level. An opportunity for adjudication must be reposed SOMEWHERE in the federal legal system (See Klein). It would be wrong to deny a right to the holistic jurisdiction of the federal legal system.
§          — USE THIS AS AN ANSWER TO: “How would you advise a member of Congress on the Con. limits on withdrawing jurisdiction?”
­àCongress can rein in judicial review through this clause

§          There are 2 ways of handling jurisdiction cases:
1.        First argue jurisdiction and wait for a ruling to decide on whether the case can make it to the stage where it will be reviewed on its merits OR
2.       Argue the case on the merits AND jurisdiction because you’re not sure if the court will have jurisdiction to hear the case

III.              Justiciability – “Case or Controversy” Requirement à Capable of being adjudicated; the Supreme Court is relegated to hearing cases and controversies as defined under Article III. The Court will not hear hypothetical cases or issue advisory opinions. There must be a focused controversy and an actual injury involved. It’s a general gate-keeping tool that controls which individuals can proceed w/ substantive claims before the court.
a.        Article III § 2 limits federal judicial power to cases or controversies
i.      Court cannot render advisory opinions
ii.      Constitutional Standing to sue is required
iii.      Standing: A party’s right to make a legal claim and be entitled to judicial adjudication of that claim. This requirement focuses on who constitutes the proper plaintiff. It is a subset of the justiciability doctrine.
iv.      There are 2 types of standing:
1.     Article III standing: case-or-controversy requirement of Article III, thus invoking judicial power. The Court will not step into areas committed to other branches (federal spending)
2.    Prudential considerations standing: discretionary standing (Cases in which a third party has standing, for example) [Non-constitutional judgments about what constitutes wise policy in administering the judiciary] à Standing can also derive from a federal statute that confers it. This suggests that Congress could get around the Article III requirement. (See Lujan)
à The principle distinction is that Congress is not free to override the SC as to an element of standing found by the Court to fall within “case in controversy” requirement, but it is free to override prudential considerations.

Why did Ms. Frothingham lack both types of standing in her case?
1.      She lacked Article III standing because her claim challenged federal spending, an area constitutionally committed to the legislative branch, which essentially precludes her claim from being considered an Article III case/controversy to be resolved by the courts. 
2.      She lacked prudential standing because she was asserting a generalized grievance who’s injury was too remote. Her injury was diminimus (too small). [The court must be satisfied that he has prudential] a.        What do you do on an exam?
i.      Be honest about your uncertainty. The possibility that it could be decided either way. 

Using the P in Roe v. Wade, illustrate the difference between Art. III standing and “prudential” standing.  A pregnant woman who challenges an anti-abortion statute AFTER having her baby would lack Article III standing because she no longer has a case or controversy. The issue would be moot to her. But she may have prudential standing as a third party because her pregnancy is capable of repetition but likely to evade review.