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Constitutional Law I
Santa Clara University School of Law
Armstrong, Margalynne J.

Constitutional Law Outline

A. History and Theory of the Constitution
1. The Constitution: attempts to take a middle path between tyranny denounced in the Declaration and the weak federation of the Articles. The Constitution created a more powerful federal govt. It also, significantly, was a different kind of government: not merely a league of independent sovereignties, but a nation unto itself, with the full powers of a govt.
a. Differences Between the Articles of Confederation and the Constitution


Articles of Confederation

Separation of Powers = Executive, Judicial, and Legislative branch

No Separation of Powers: Only entity with Federal power is Congress (But Congress is a creature of the states)

Bicameral Legislature

Unicameral – each state only gets one vote.

Congress has Power to declare war, to raise and support armies

States provide their own armies for the common defense, and retain the power to appoint the officers of their own armies (A. VII) Congress can ask states for their armies = US is a league of different armies with coordination problems

C. has the power to lay and collect taxes

Feds just took $ from the states = hard to get $.

Congress has Power to regulate interstate commerce ­= frees up trade among states (economic doctrine favoring free trade among states over local protectionism)

C. has no power over interstate commerce, but only a treaty power that partly limits states’ abilities to impose tariffs at their borders (A. VI) Allowed states to treat each other as foreign nations and impose tariffs

Article I section 10 takes away state’s power to coin money V centralization of economic power

No uniform currency = reduction in trade.

Makes specific accommodations for slavery
*enumeration by 3/5 of all other persons
*C can’t restrict the importation of people
*if slaves escape another state has an obligation to return them
** Constitution is/was NOT all about freedom and equality

No specific accommodations for slavery

Req. super majority of states to amend constitution.

Required unanimous decision by all state legislatures to ratify and amend.
Required nine of thirteen to approve all laws.

b. New govt.’s power was legally limited: The experience of the British monarchy, however, had taught the former colonists to fear a large, powerful govt., and so the new govt.’s power was legally limited in three ways:
(1) Federalism
(2) Separation of Powers
(3) Guarantee of Individual Rights
The basic idea, reflected in Federalist 10 (Madison), is to prevent tyranny by making it hard for govt. to get things done without a broad consensus that they’re worth doing.
c. Federalist 10 (Concern with Factions)- Madison, 1787: Madison thinks the primary problem of gov’t is the control of factions. He wants a system in which even a majority of people would have difficulty securing power. A well-constructed union will “break and control the violence of faction”
(a) Worry over Factions: A faction is a group, whether a majority or a minority, that is united by a passion that is adverse to the rights of other citizens or to the interests of the community.
(b) Remedy: The diversity of interests would reduce the risk that a common desire would be felt by sufficient numbers of people to oppress minorities. In this respect, the likelihood of factional tyranny contained a built-in check in a large republic.
– Republic opens a different scheme and is the way to control effects of faction
Different from pure democracy in two ways
1. a small number of citizens are elected by the rest
– The greater number you have to choose from for your elected reps the more likely you are to pick the right people.
– Since a greater number of people are voting in a large republic, then one unworthy candidate is less likely to be able to swindle people into voting for him. and when the votes of people are more free they will be more likely to vote for the person with the most merit.
(1) Federalist 51 (System of Checks and Balances to reduce Factionalism): The system of checks and balances was designed with the recognition that even national representatives may be prone to the influence of “interests” that are inconsistent with the public welfare. Checks and balances are supposed to act as check against factions and self-interested representation.
(a) Separate and distinct powers in gov’t is thought to be essential to preserve liberty: Need each dept. to have a will of its own and the members of each should have as little agency as possible in appointing members of the others.
(b) The larger the republic the better able it is to self govern.When there are many different interests parties and sects as there are in the US “a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good…” Many sects, interests, parties = protection for the minority
(c) Result is a complex system of checks: National representation, bicameralism, indirect election, distribution of powers, and the federal-state relationship. All act in concert to counteract the effects of faction in spite of the inevitability of the factional spirit. The system of checks and balances would ensure that, if representatives became self-interested, or if a particular group acquired too much power over one set of representatives, there would be safeguards to prevent either representatives or private groups from obtaining authority over the national government in general.

II. The Institution of Judicial Review
A. The Basic Framework
1. Review of Acts of Congress – If the S/Ct. identifies a conflict between a constitutional provision and a congressional statute, the Court has the authority (and the duty) to declare the statute unconstitutional and to refuse to enforce it. (Article III)
a) Marbury v. Madison (1803): Establishes Judicial Review, the power of federal courts to declare statutes unconstitutional. John Adams (federalist incumbent president) appointed several justices of the peace, including Marbury, at the end of his Administration. Federalist controlled Senate confirmed the appointment. Formal commissions had not been delivered when Jefferson took office. Jefferson then refused to honor the appointments for which commissions had not actually been delivered prior to the end of Adam’s term. Marbury brought suit directly to the S/Ct. They sought a writ of mandamus compelling Jefferson’s Secretary of State (James Madison) to deliver their commissions. First, Marshall decided that Marbury and the other justices did indeed become entitled to their commissions once these had been signed by the President. Secondly, as to the remedy, Marshall distinguished between political acts, which are not reviewable by the courts and acts specifically required by law, which are reviewable. The refusal to deliver the commissions fell into the latter category. Thus Marbury and the other justices were entitled to a remedy. Lastly, Marshall held that the particular remedy that the plaintiffs sought, a writ of mandamus, could not be granted. While the then-effective Judiciary Act explicitly authorized the Court to grant this relief, Marshall concluded that this grant of jurisdiction was in conflict with Article III, §2 of the Constitution, which grants the S/Ct. original jurisdiction only “[i]n all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party.” Since issuance of mandamus is not among the types of cases as to which original jurisdiction is conferred on the S/Ct, Marshall held, the congressional statute was at odds with the Constitution (and Marbury does not get his commission.)
IMPORTANT HOLDING – If the S/Ct. identifies a conflict between a constitutional provision and a congressional statute, the Court has the authority (and the duty) to declare the statute unconstitutional and to refuse to enforce it. Therefore, Marshall concluded the requested writ of mandamus could not be issued.
Marshall made two interlocking arguments (which are the foundation of judicial review):
1) Constitution is Paramount: The very purpose of a written constitution is to establish a fundamental and paramount law. If follows from this that any act of the legislature that conflicts with the Constitution must be void. (Supremacy Clause)
2) Who Interprets: “It is emphatically the province and duty of the judicial department to say what the law is.” That is, it is the court, not the legislature, which must make the determination whether, in a particular case, an act of Congress is in conflict with the Constitution. To deny the permissibility of judicial review of the constitutionality of a congressional statue would be to say that the courts “must close their eyes on the constitution, and see only the law. This doctrine would subvert the very foundation of all written constitutions.”
Why the Ct should be allowed to prefer the Const. over law:
1) judges took an oath to support the Const. (also applied in Martins, Cooper)
2) existence of a written constitution
3) Article VI—Const. “shall be the supreme law of the land” {supremacy clause}
4) Judges better versed at saying what law is
b) Criticism of Marbury
(1) Who determines Constitutionality: Most critics agree with the first part of the argument, but not the second. The critics argue that nowhere in the Constitution does it state that the courts, not Congress, ought to decide whether a given statute does in fact conflict with the Constitution.
(a) Congress could decide: Congress would be seen as having the duty to make sure that no act promulgated by it exceeded the Constitution; but Congress’ interpretation of the presence or absence of a conflict, not the courts’ would be the method of enforcing constitutional limits.
(b) Response– Assumption, not conclusion: One answer to this criticism is to say that Marshall was making an assumption, rather than a deduction, when he stated that courts have the ultimate right to interpret constitutionality. That is, the Constitution can be classified as being “indeterminate” as to who has the final say. When viewed in this way, Marshall’s assumption is at least as reasonable as the contrary one (that Congress, not the court’s should decide constitutionality) – this contrary assumption is also nowhere to be found in the Constitution.
(c) Response–Judicial Independence: Furthermore, if one is merely trying to decide which assumption to make, there are some practical reasons why judicial interpretation, rather than legislative interpretation, might be a better means of construing the Const. 1) Fed. Judges are appointed for life, and are thus free of day-to-day political pressures. 2) Since Congress generally responds to the majority’s will, and since one of the key functions of the Const. is to protect the rights of minorities, the relatively apolitical judiciary will interpret the Const. in a way more sensitive to this minority-protection goal.
(2) Const provides the minimum for original jurisdiction and Congress can expand it just can’t reduce the scope of orig. juris.
(3) Merits of the Case: Marshall’s way of ordering the issues is extraordinary. Ordinarily, the question of whether the court has jurisdiction should be considered first; if the answer is no, then there is no occasion to reach the substantive issues, such as whether Marbury has a right to his commission.
2. Review of State Court Decisions: When the S/Ct. reviews the judgment of a state court, it is of course exercising its appellate, rather than its original jurisdiction. Art. III, §2 provides that the S/Ct.’s appellate jurisdiction may be regulated and limited as Congress shall provide. Since the original Judiciary Act was enacted in 1789, the S/Ct.’s appellate review of state court judgments has always been limited to the federal questions decided by the state courts. Thus the S/Ct. may determine whether a state court has reached a decision that is not in conformity with the Constitution; but it may not review state court decisions that merely adjudicate questions of state law.
a) Martin v. Hunter’s Lessee (1816): Upholds as constitutional §25 of the 1789 Judiciary Act, which allows the S/Ct. to hear appeals of const. issues decided by the highest court of a state.
Facts: Involved the issue of whether a particular VA statute conflicted with a federal treaty. The VA courts took the position that if litigation commenced in state courts, then it was up to the state court to say whether the state action violated the federal constitution, and the U.S. S/Ct. had no right to review whatever conclusion the state court reached. S/Ct. flatly reject the VA court’s view and held that the Court could review the constitutionality of a decision by a state’s highest court. (appellate juris.)
There were two principal strands to the Court’s opinion
1) Jurisdiction over all case constitutional cases: First, Story notes that Art. III, §2 of the Const. gives the Court jurisdiction over all constitutional cases, regardless of their origin. Sovereignty argument rejected: Secondly, the VA ct’s assertion that it was “sovereign” was rejected, on the grounds that the federal Constitution cut back upon state sovereignty in numerous respects. There was no reason to presume that state judiciaries were immune from this set of limitations. Further, congress created the lower courts.
2) Uniformity: Finally Story relies on a prudential argument that uniformity of decision is important. He wrote that there is a need for uniformity in d

that Congress may place certain limits both on the S/Ct.’s appellate jurisdiction and on the jurisdiction of the lower federal courts. First, Art. III, §2 states that in all cases not falling within the S/Ct.’s original jurisdiction (but falling within the federal judicial power), the S/Ct. shall have “appellate Jurisdiction both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”
b. Ex Parte McCardle (1869): The S/Ct. has confirmed that Congress does indeed have at least some power to control the boundaries of the S/Ct.’s appellate jurisdiction. McCardle was on trial for writing papers critical of reconstruction. He appealed under an 1867 Congressional statute, authorizing the grant of habeas corpus by fed. circuit cts. and also authorizing appeal to the S/Ct. in such cases. After the S/Ct. heard arguments in the McCardle case, but before it handed down its decision, Congress passed a law repealing the portion of the 1867 Act which allowed appeals to the S/Ct. (Congress did this out of fear that the Ct. would hold in McCardle that the Reconstruction Acts were unconstitutional.) Thus C. purported to deprive the S/Ct. of its right to decide the McCardle case and any other habeas corpus case coming to it by appeal from the circuit courts. The S/Ct. upheld Congress’ restriction of the Court’s jurisdiction. The opinion noted that the appellate jurisdiction of the S/Ct. is conferred “with such exceptions and under such regulations as Congress shall make,” (under the Exceptions Clause) The limitation enacted by Congress here was such an exception. Therefore, the Ct. concluded, it had no jurisdiction to decide the case. (Note: C was not completely w/drawing the SCt.’s right to hear habeas corpus cases, rather it was w/drawing that rt only where the SCt got the case by appeal from the lwer cts)
c. Limits on Congressional Power: But Congress does not have unlimited power to tamper with the Supreme Court’s appellate jurisdiction. US v. Klein (cannot use power to make rule of law inconsistent w separation of power but can withdraw jurisdiction)
E. “Case or Controversy” Requirements and the Passive Virtues
-Article III, Section 2 of the Constitution provides that “[t]he Judicial Power shall extend” to enumerated “cases” and “controversies.”
1. Restraints Imposed by Case/Controversy Requirement
a. Courts may not issue opinions based on abstract or hypothetical questions. This is known as the prohibition of “advisory opinions”
b. Courts may not decide “political questions”
c. Courts must have before them someone with “standing,” or some kind of personal stake in the controversy
d. Courts may not decide issues that are either “premature” or “moot.”
e. Ripeness – case must be based on actual facts, not hypothetical
2. Standing – The Plaintiff must have a significant stake in the controversy to merit her being the one to litigate it. (Thus focusing on the party rather than the issue at stake.)
b. 6 Standing Requirements (First three are constitutional)
(1) Plaintiff must allege that she has suffered or imminently will suffer INJURY.
a) The injury suffered must be concrete and “individuated,” that is, it must not be precisely the same harm as is suffered by an extremely large group of others.
-As long as the litigant alleges the requisite “concrete” and “individuated” harm, standing will not be denied merely because there is a large number of people suffering the harm.
-Conduct that denigrates a minority group. Members of a minority group will not from that membership alone derive standing.
-Members of a political body, such as a legislature, do not have standing to litigate against an action that they say takes away the political power of that body.
b) The injury must be “actual or imminent.” If the threatened harm is too far in the future, or too speculative, the “actual or imminent” element will not be satisfied, and standing will not be found.
-Lujan v. Defenders of Wildlife (1992) Ps challenged certain federal agency action that, they say, will have the effect of endangering certain species abroad. Def, U.S. Govt. argues that the plaintiffs do not have standing. The Ps retort that they have in the past, and will again, travel abroad to the habitats of the potentially affected species, in order to observe and study those species. The ct held that the Ps have not shown the requisite actual or imminent harm, therefore they do not have standing. Ct. held that the plaintiffs cannot sue because they are not the objects of the government action. “Such ‘someday’ intentions – without any description of concrete plans, or indeed any specification of when the someday will be – do not support a finding of the ‘actual or imminent’ injury that our cases require.”
—In addition to the “injury in fact” requirement, the action challenged must be the “cause in fact” of the injury. This encompasses both the second and third standing requirements The challenged action must be a “but for” cause of the injury (Requirement #2) and that the relief being sought, if granted, has a reasonable likelihood of redressing the injury. (Requirement #3)
(2) Plaintiff must allege that the injury is fairly traceable to the defendant’s conduct (the “but for” cause).
-Allen v. Wright (1984) Parents of black children attending public schools in districts undergoing desegregation brought nationwide class action alleging that IRS had not adopted sufficient standards and procedures to fulfill its obligation to deny tax-exempt status to racially discriminatory private schools. The USDC dismissed on standing grounds. The Court of Appeals reversed and remanded. Certiorari was granted. The Supreme Court held that: (1) parents did not have standing to prevent the government from violating the law in granting