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Constitutional Law I
Santa Clara University School of Law
Epperson, Lia

Judicial Review:2Judicial Review:
Nonjusticiability of Political Questions: p 34 (AKA: The Political Question Doctrine)3
Legal ? (opposed to political)3
Political ?. 3
What Is A Political ? 4
Political ? Doctrine Since Baker v Carr4
Rule Against Advisory Opinions. 6
Standing to Litigate. 6
a… Art. 3 case or controversy requirement6
b…. Self imposed prudential considerations. 7
Mootness. 8
Ripeness. 9
Supreme Court Authority to Review State Court Actions. 9
Political Restraits On The Court: May Congress Strip The Court Of Its Jurisdiction?. 10
I. Congress, has enumerated powers, which are supplemented by the power to make:11
The Commerce Clause. 12
Commerce Clause Review After Lopez. 13
Constitution,  Appendix A, A1-A15
I)            Functions of Const’n:
 establishes national gov’t and divides authority between the branches
Article 1; creates Congress and grants it legislative powers, process for election and law making
Article 2; Executive Branch
Election of the president is very anti-majoritarian
Article 3; creates the Supreme Court and grants authority to create lower courts
Also safeguards federal judges tenure and salary
James Madison: Federalist Papers #51, greatest protection against ammassing of power in any one branch is creation of interest in individuals to combat that amassing (ambition against ambition), also see #10
I.            Why have a const’n at all?
Unlike a statute, our Cn constitutes our gov’t
it’s foundational
and much more difficult to change the contents thereof
·      “A law repugnant to the Constitution is void; and that courts, as well as other departments are bound by that instrument.” 
a)        Marbury v. Madison, pg 10 [Marshall] ·     It is the duty of the judicial department to interpret the Constitution, to be able to apply the proper law to cases at bar, and decide what the law is
b)        Marbury v. Madison, pg 9 [Marshall]                                    

CT than specific precedents
¨ Constitutional Convention: rejected Council of Revision proposal, where Court would also veto
¨ The federalist Papers: most outspoken support for Judicial Review, written as propaganda during NY ratification of Constitution
¨ Judicial Role: Hand – Wechsler, modern debate pg 18, H: Judicial Review not in Constitution and actually contrary, W: against not adjudicating constitutional question, case rightly before the court “neutral principles”
¨ Democracy: is Judicial Review contrary to principles of elective gov’t?
                                     i.    Popular sovereignty replacing legislative sovereignty
·          Authoritativeness of Supreme Court Decisions
States (through agencies or individuals) must follow the Court’s Constitutional rulings (though not parties to the proceedings)