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Constitutional Law I
Rutgers University, Newark School of Law
Bell, Bernard W.


Created in response to the weak federal quasi-structure created under the Articles of Confederation, under which there was no federal executive or judiciary
à EXAMPLE: The pre-1787 Constitution didn’t enable the federal government to tax

Ratified by 1788 and enabled the federal government to be its own sovereign power

Despite the colonial emphasis on individual liberties, the Constitution didn’t initially have a civil liberties section for two possible reasons:
1.       Fear of debate over them and its potential for not getting the document passed.
2.      Not including the Bill of Rights empowered Congress to invade rights not specifically protected under the Constitution

Eventually, it was amended and outlined and preserved individual liberties. There is a question of whether it limits government powers or individual rights

Federalism is one of the mechanisms by which we recalibrate the powers of the state and federal governments and their goals

The framers of the Constitution didn’t contemplate a 2-party political system and expected candidates to run independently. They made a drafting mistake regarding the Electoral College. The one who got the most votes would be president and the one with the second most votes would be vice president. The Congress would decide the winner in case of a tie. By the time Jefferson and Burr ran, candidates were running on tickets

Marshall view of the Constitution: This is a Constitution we’re expounding, not a code of laws (pragmatic view of the document; anti-thesis of literalist view)

Articles I-III  of the Constitution are the source of the “separation of powers doctrine”

Separation of Powers & Federalism

THE JUDICIARY – Article III        

** The federal judiciary can interpret the Constitution, statutes, treaties, and adjudicate disputes b/w states, diversity suits, states and foreign citizens, and cases & controversies w/in exclusive jurisdiction of the federal courts

** The Court is a political body and has the same ability as the other branches to set national policy. However, it has limits – though such limits are unclear. Even if a matter is unconstitutional, the power to effect change may be beyond the courts since the judiciary lacks its own police force to enforce its decisions

à ‘Tinkerbell’ theory: “We believe, we believe.” As the public, the court only has so much as we believe it has. The court depends on the good will and acceptance of the American people to enforce its decisions.
à EX: Eisenhower enforce Brown in the Little Rock 9 situation though he disagreed with it

JUDICIAL REVIEW: The judiciary is the ultimate arbiter of rights and has the final word on the Constitution’s meaning in cases before it.  It’s the federal judiciary’s job “to say what the law is.” 

Created by Justice Marshall in MARBURY
Rule: the federal judiciary may review the constitutionality of actions taken by the legislative and executive branches of the national government. 

Why do many describe Marshall’s opinion in Marbury as “politically astute” at the time it was rendered? His opinion expands judicial powers by establishing judicial review, but he does so under the guise of limiting the judiciary through the separation of powers doctrine.   

Learned Hand: The principle of separation of powers is constitutionally grounded but judicial review is a practical accommodation to making the system work.  Since judicial review isn’t constitutionally grounded, it should be used sparingly.

Judicial review is countermajoritarian because it allows the judiciary to set aside the democratic will of the populace represented through the Congress.   A boiler plate rule here is that courts should decide cases if at all possible to avoid constitutional issues as not to intrude in the democratic decision making process, unless it is absolutely necessary to do so. 

à Justified by: The Constitution. The framers were clear about granting certain, limited powers                  to the branches. It is implied that the court must interpret the language of the Constitution and                          maintain its integrity.  What sense would it make if the framers’ language couldn’t be interpreted?              The judiciary is not a usurper by interpreting the Constitution. It’s just doing its job.

If judicial review didn’t exist, then there’d be oscillation between congressional interpretation of the Constitution and judicial interpretation.
à Lincoln said there is an ongoing dialogue between the branches (judicial ruling on the case and                        other political branches’ pressure on the courts to reconsider or try to effect the ruling in a manner              they see fit but within the framework of the ruling)

§  MARBURY PROBLEM: When the Court uses its discretion to not address a constitutional issue (because it feels it can’t effect a substantive result in the controversy or feels the result is better achieved in another arena) and leaves open the possibility for congressional interpretation of the Constitution. Thus, it's relinquishing its role as the ultimate arbiter of the Constitution's meaning.

Marbury requires that there be a rule of law, but flexible room for counterbalancing

The Supremacy Clause  implicitly makes state court decision subordinate to U.S. Supreme Court rulings

ARTICLE III, Sec. 2: The Supreme Court has original jurisdiction in cases where the following are parties:
a.      Ambassadors
b.      Consuls
c.       Public ministers
d.      States

à Under Sec. 1257, the lower courts have concurrent jurisdiction over these issues as well

Certiorari power: The Court has discretionary authority to hear state cases raising substantial fed. Issues

Justiciability (jurisdiction)
Definition – the ability of the Court to decide a case.
“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.
This ensures that the judges won’t overstep their bounds
The definition of “controversy” is malleable but it’s come to mean “case”
Declaratory judgments constitute a controversy if there’s sufficient concreteness that the person bringing the controversy is subject to prosecution for potential violation of a law and would then suffer an injury
‘Justiciability’ and ‘standing’ aren’t mutually exclusive terms.
Justiciability defines the limits of Article III judicial power by focusing on our expectations of the types of matters judges commonly decide.  Thos expectations are applied and developed through the lens of four specific doctrines: 1) standing, 2) ripesness, 3) mootness, 4) political questions.  These four doctrines seek to prohibit the Court from acting outside of its jurisdiction.

Exparte v. McCardle (exceptions and regulations principle – Article III)

*    McCardle shows that Congress does indeed have at least some power to control the boundaries of the SC’s appeallte jurisdiction.
The Court held that it was constitutional for Congress to repeal the part of the Habeas Corpus Act of 1867 which vested the Supreme Court with appellate jurisdiction to hear an appeal of a denial of a writ of habeas corpus.
Note that the reason Congress decided to repeal this part of the Act of 1867 is because it did not want the Supreme Court to interfere with its Reconstruction of the South.
Chief Justice Chase’s reasoning goes a little something like this: The Supreme Court has appellate jurisdiction over everything. However, Congress has the power to limit that appellate jurisdiction. Therefore, in any case where Congress has not expressly granted the Court the power of appellate jurisdiction, it must be assumed that Congress has implicitly denied the Court appellate jurisdiction over that matter.

McCARDLE: During the Reconstruction era, the South was under military control until it purged itself of rebellion. Because of judicial review, cases relating to the Reconstruction could be heard. He was a Southern journalist who didn’t support the military government or the Republican Congress. They threw him in jail, and he sought habeas corpus. Congress thought it would lose the case because the court decided in favor of the plaintiff in the past. The case was submitted and argued, but the court says it hadn’t yet decided the case. So when the Congress withdrew appellate jurisdiction for the Supreme Court, no decision could be overturned as a result because it had not yet been rendered. The Court upheld the Congress’s repeal of the 1867 act that gave the court power to hear the case
à RULE: The Supreme Court’s appellate jurisdiction of a matter’s subject to Congress’s power under the exceptions and regulations clause of Article III
à RULE 2: The Supreme Court cannot rule on an issue over which it has no jurisdiction.
Holding: The SC upheld Congress’ restriction of the Court’s jurisdiction. The opinion noted that the appellate jurisdiction of the SC is conferred “with such exception and under such regulation as Congress shall make.” The limitation enacted by Congress here was such an exception. Therefore, the court concluded, it had no jurisdiction to decide this case.
Limited Significance:  Thus, Maccardle does not by any means stand for the proposition that Congress may strip the federal courts in their entirety of the right to issue habeas corpus relief; such congressional action would probably be a violation of the prisoner’s rights to  due process.  Also note, that the decision is limited in withdrawing that right only where the SC got the case from the lower courts by appeal; and original jurisdiction for habeas corpus could be commenced in the SC itself.
1)       If Congress denied all habeas cases, there would have been a grave issue of due process
2)      Though an avenue to the Supreme Court is blocked, there are other ways to have the case heard.
3)      Whenever hot-button issues come up like abortion, legislators always propose a way to withdraw federal jurisdiction from these cases.

What is the loophole that the Supreme Court leaves in McCardle? Congress can withdraw jurisdiction so long as the case is not pending.

United States v. Klein
*    Klein shows that there are some limitations to Congress’ power to modify SC’s appellate jurisdiction.  Congress must exercise the exceptions and regulations principle consistently with the separation of powers concept.
The Court held that it was unconstitutional as a violation of separation of powers for Congress to take away the Supreme Court’s appellate jurisdiction over claims to property made by people who had been given presidential pardons.
Klein speaks to the hint given in McCardle that if congress interferes with the substance of judicial power rather than form, than that may violate the separation of powers.
Congress took away the Court’s appellate jurisdiction and ordered the Courts of Claims to deny Southerners, who had been pardoned by President Johnson, of their property that had been taken away from them after the Civil War. The Court found this unconstitutional because in taking away the Supreme Court’s appellate jurisdiction in this instance, Congress was attempting to negate a power delegated to the President by the Constitution.

KLEIN: In 1870, Congress passed an act that directed the courts to immediately dismiss claims of a person trying to reclaim property seized during the Civil War upon proof of a pardon, which was proof of disloyalty. In 1870, Klein, a pardonee, won his suit and the government appealed on the basis of the act. The Court ruled that Congress couldn’t make such an act because it interfered with judicial affairs.
à RULE: Though 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?”

­à Congress can rein in judicial review through this clause
Add in Flast v. Cohen

Justiciability doctrices:

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.

Standing is a gate-keeping tool used by the Court in much of the same way it uses its writ of certiorari power to hear a case. It’s become an issue as the court has shifted away from the Warren court and became less activist.

à The Warren Court was probably more lenient on standing issues and probably would’ve                               allowed the state court decision in Michigan to remain in tact because it expanded civil liberties

Test for standing:
1.       Real injury in fact (a looser requirement for declaratory judgment suits)
2.      Causation: a nexus must exist b/w the challenged conduct and the plaintiff’s actual injury. The injury must be one which was caused by the act being complained of ; and
3.      The injury can be redressed through potential adjudication (redressability) Would the plaintiff get relief if the suit goes in their fa

the court’s intervention in the matter can assert the concomitant rights of 3rd parties who are directly injured by the alleged unconstitutional or illegal conduct

1) Though the issue was moot as to the male plaintiff since he was 21 and no longer affected by the statute. But the court ruled that the vendor did have standing as a third party
2) Brennan (majority) feels there’s standing and looks at the P as a licensed beer vendor. Burger thinks she doesn’t deserve standing and refers to her as a saloonkeeper
3) This case also gives rise Equal Protection. This is an intermediate scrutiny case because it involves gender classification. But it also gives rise to the issue of whether the saloonkeeper’s compliance with state law that discriminates against men makes her a state actor.

LUJAN: Members of wildlife organization try to strategize by making an injury-in-fact claim that if the regulation was upheld, they wouldn’t be able to see the Sri Lankan animals whenever they decide to re-visit the site. The Court held that they had no standing because their injury was not an injury-in-fact but, instead, was speculative. The enforcement of the Act and neglect of the regulation doesn’t help secure any concrete interest held by the members.
à RULE: A plaintiff claiming a “procedural injury” or “generalized grievance”– only harm to his and every citizen’s interest in proper application of the Constitution and laws and seeking relief that no more tangibly benefits him than it does the public at large — doesn’t state an Article III case or controversy
à RULE 2: Congress cannot confer standing to citizens by giving them a power vested in the executive branch through Article II
à RULE 3: A congressionally conferred right of standing requires that the P suffer an injury-in-fact

1. Souter: If Congress is going to confer a right, it must do so properly
2. The ESA statute relied on this case lacks a monetary incentive, which is usually part of these conferral statutes
3. Kennedy: If the statute had been reframed and gave rise to a valid real injury claim, the outcome would’ve been different. By conferring standing to every citizen, Congress is breaking the concreteness standard required under Article III.
4. The important doctrinal point of this case is that the claim of standing derives from congressionally-created statute, not an inchoate citizen status
5. Justice Scalia(majority): There must be a quantum of injury in fact sufficient to satisfy article 3.  Such “someday intentions – without any description of concrete plans, or indeed any speculation of when that someday will be – do not support a finding of the  ‘actual or imminent’ injury that our cases require.
6. Blackmun and O’Connor dissent: Based on Summary judgment a reasonable fact finer could find members of Defenders would return to Egypt and Sri Lanka. 

What is the difference between Congress’s attempt to confer standing in Trafficante and in Lujan? In Trafficante, the right of standing was extended to a P who was suffering a concrete injury to his 1st Amendment right of association, while in Lujan Congress was conferring standing to a P who suffered no injury-in-fact and was giving it a power vested in the executive branch.

POLITICAL QUESTIONS: Blanket term for those considerations generally growing from the separation of powers.  These issues involve generally nonjusticiable topics and can most likely be resolved by other branches.  ‘Political question’ isn’t a blanket statement for all controversies with political undertones.
Separation of power: The court will not decide matters which it concludes are committed by the Constitution to other branches of government for decision; and
Prudential concerns: various “prudential” considerations, because of which the Court concludes that it is unwise, even if not strictly unconstitutional, for it to decide the case.

How does the PQ doctrine have its origin in Marbury? The Court won’t use its powers of judicial review to resolve controversies for which there’s no judicially manageable standard or that are constitutionally committed to other branches. 

How does the PQ doctrine relate to the concept of “separation of powers”? Under the political question doctrine, the Court won’t use judicial review over issues that are constitutionally committed to the executive or legislative branches

The court won’t answer political questions that have a: (most important)/(prudential considerations)
1.      Textually demonstrable constitutional commitment of the issue to an executive or political department*;
2.     OR Lack of judicially discoverable and manageable standards for resolving it*;
3.      OR Impossibility of deciding it without an initial policy determination of nonjudicial discretion;
4.      OR Impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government;
5.       OR Unusual need to defer to a political department’s pre-existing decision (Ex: wars, foreign policy)
6.      OR Potentiality of embarrassment from different statements from various departments on 1 question (Ex:  Luther v. Borden)

The following types of cases don’t involve justiciable issues  and are political questions outside of the court’s jurisdiction:
1.       Foreign relations: This topic is primarily within the province of the legislative and executive branches. HOWEVER, in some situations, courts may interpret a treaty if it clashes with state law or federal law
2.      Duration of Hostilities: The courts won’t review a political department’s determination on whether a war has or has not ended.
3.      Validity of Enactments: The courts won’t determine how long a proposed constitutional amendment is open to ratification or if passed enactments met all the required formalities. But if the statute lacks a date, the court will look at legislative records to preserve the enactment
4.      Republican form of government: The power to render final judgment on a republican form of government is vested in the executive (Luther v. Borden)