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Constitutional Law I
Santa Clara University School of Law
Gulasekaram, Pratheepan




1. Judicial Review (Marbury v. Madison = Constitution means what SCOTUS says it means)

a. = SCOTUS’ power to interpret the Constitution and declare a government act unconstitutional

b. Authority

i. Art. III §2 (Marbury = if SCOTUS can hear cases arising under the Constitution, it must decide what law applies and when two laws conflict it must be able to pick one) and

ii. Art.VI Supremacy Clause and Oath (Marbury = the judicial oath requires SCOTUS to uphold the Constitution, which is the supreme law of the land, so it must trump conflicting statutes)

1. The other branches take the same oath and have a chance to decide, but the judiciary gets to decide last (inherent in concept of SOP)

c. History

i. 1803: can declare a federal act unconstitutional (Marbury = Congress cannot modify SCOTUS’ original Jx because Art. III §2 is not a floor but exhaustive (limited Jx). Since the Constitution trumps under the Supremacy Clause, the Judiciary Act of 1789 purporting to give SCOTUS original Jx over writs of mandamus is unconstitutional so no power to force Madison to deliver required commission to Marbury)

ii. 1816: can review judgments of state courts on federal questions (Martin = Art. III §2 limits appellate power to types of cases, not particular courts, and allows SCOTUS to hear cases “arising under”)

1. State courts are still supreme on issues of state law

iii. 1821: can declare a state act unconstitutional (Cohens)

iv. 1958: once SCOTUS announces a constitutional ruling it is applicable everywhere (Cooper = states cannot ignore Brown because they have taken oath under Art. VI to uphold the Constitution and Brown is what SCOTUS has decided the Constitution says about school segregation)

d. Policies

i. Balanced co-equal branches (purse, sword, and judicial review)

ii. Ppl who write/enforce laws shouldn’t be the same who decide constitutionality

iii. Judiciary is not as subject to politics and pressures of the moment

1. Undemocratic? Possibly, but it’s so engrained now. Can always amend!

2. Congressional Restrictions

a. Judicial exclusivity in constitutional interpretation

i. Congress cannot supersede a constitutional decision legislatively (Dickerson = Congress’ attempt to overrule SCOTUS’ glossy constitutional interpretation in Miranda by statute is unconstitutional)

ii. So how can we overturn a ruling by SCOTUS?

1. Amending the Constitution under Art. V (very difficult)

2. SCOTUS can reverse itself

b. But Congress can take away appellate Jx over certain cases under Art. III §2 Exceptions Clause (Ex Parte McCardle = Congress gave SCOTUS statutory appellate Jx over habeas corpus cases. A military prisoner appealed his case on this basis, but Congress repealed SCOTUS’ Jx before the case was heard so SCOTUS has no Jx and could not proceed at all b/c it’s as if the act never existed)

i. Modern example = Marriage Protection Act with clause that strips SCOTUS of appellate Jx over cases under the act

1. Issue-specific Jx-stripping statutes have never been tested. Does this interfere with the essential function of the Court as implied by the Constitution?

2. Effectively means no federal judicial review (serious due process issue) since:

a. Congress can strip Jx from lower courts (b/c made them Art. III §1) and

b. SCOTUS usually declines to exercise original Jx power under Art. III §2

3. Justiciability doctrines (all derived from interpreting Article III §2 Case & Controversy Clause)

a. = Constitutional basis for SCOTUS to restrict own power by determining which cases to hear

i. Affirmative grant in Art. III §2 implies that it doesn’t extend to anything but case/contro.

ii. Threshold Questions

1. None are about the merits of the case, but they do have substantive effects

b. Advisory Opinions (no dispute between adverse litigants and decision will not affect change)

i. = opinions on the legality of executive or legislative action that do not involve a “case”

ii. Some states allow it, but SCOTUS doesn’t because:

1. There’s no case as required by Art. III §2 (nonadversarial)

2. SCOTUS only wants to issue opinions that affect injuries/change rights or duties

3. Even if it looks constitutional there could be a set of facts where it isn’t, so an advisory opinion wouldn’t be a guarantee

4. Too broad—just b/c unconstitutional doesn’t mean anyone would challenge it

iii. Instead, use declaratory judgments (28 USC 2201) to ask for a declaration of rights after the law’s passage but before enforcement



Don’t confuse with certification questions (ex. 9th Cir. asking Cal. to rule on issue of California law, which Cal. can decide to do or not, or answer any question it wants)

c. Standing (mandatory Jx component that can be raised at any time)

i. = there is a case or controversy, but are the plaintiffs the right people to be in court?

ii. Policy = promotes efficiency and SOP (fewer suits) and accuracy (specific controversy)

iii. Requirements

1. Personal injury-in-fact

a. Concrete and particularized (Sierra Club = walk through the park!)

i. Ex. bodily, $, lost opportunity to participate in race neutrality, aesthetic offenses, vote dilution… not just ideology (Florida Health Care Case = mere existence of state statute against fed health care triggers duty of state to defend it)

b. Imminent (Lujan = intent to return to Egypt to see wildlife does not support imminent injury…should have bought a plane ticket!)(Lyons = can’t show likelihood that you will be choked by cops again, so can only sue for injuries and not injunction) (Michigan Health Care Case = individuals’ present injury of being compelled to reorganize affairs)



à non-waivable

Associational standing ok for organizations if any of its members could have sued and the claim is germane to organization’s purpose

2. Causation

a. Injury fairly traceable to D (Allen = claim that IRS allowing tax-exempt status to private schools is hampering public schools’ desegregation too speculative and indirect, relying on actions of 3rd parties)

3. Redressability

a. Will P get relief from judicial decree? (Massachusetts = risk of catastrophic harm to Mass. from global warming is remote but real—already some coast gone–and would be reduced to some extent by enforcing the Clean Air Act) (Lujan = no guarantee funding agencies will follow Sec. of Interior’s orders and this agency only supports a fraction of funding for animal proj

rtant check)

3. Will breed disrespect for the court or show its impotence?

4. Will show disrespect for co-equal branches? (Goldwater = treaty disputes are btwn co-equal branches who can protect themselves through political process. Judiciary not mediator!)

5. Is there potential for embarrassing the nation (foreign policy = political b/c need finality)

g. State/Comity Based Limitations

i. State supreme courts are final interpreters of the meaning of state law and constitutions

ii. Federal courts will not review state court decisions when there are “adequate and independent” state grounds for decision (Long = SCOTUS requires a “plain statement” that a case was decided solely upon state law grounds, or else it has Jx)

h. Practical Constraints

i. = Since a judicial decision alone is not enough to bring about rule of law you need states willing to follow it or an executive willing to use force or a legislature willing to use money to make them

ii. Constitutional constraints

1. Judicial selection: the nomination and confirmation process Art. II §2

2. Impeachment Art. II §4

3. Court-packing Art. III §2 (Congress has power to set size and budget)

4. Court-stripping Art. III §2 Exceptions Clause

5. Amendments Art. V

——————————————-FEDERAL LEGISLATIVE POWER—————————————

Enumerated powers under Article I § 8 (not general, unenumerated police powers like the states)

1. Necessary and Proper Clause (Art. 1 §8)

a. = A methodology for Congress to exercise its enumerated powers.

i. Not an independent enumerated power! Can only use it in conjunction with something else in Article 8

b. Should be read broadly as “appropriate” and not as “essential.”

i. Congress’ own judgment deserves deference as long as it adopts means which tend directly to the execution of enumerated powers and are appropriate and plainly adapted to achieving legitimate needs (McCulloch v. Maryland = Congress can incorporate a bank because it is in relation to enumerated spending power. And Maryland can’t tax it b/c power to tax is power to destroy and states have no power to burden federal government or federal constitutional laws because the Constitution is supreme and that undermines the Union by indirectly taxing other states who had no representation to the process)

c. Suggests by negative implication that the federal government can’t aggrandize itself at the expense of the states

d. Where RB (default scrutiny) comes from?

2. Commerce Clause over IC and Foreign (Art. 1 §8 + Necessary and Proper Clause)

a. Justification for most laws (regulatory, civil rights, and criminal)