Select Page

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

CONSTITUTIONAL LAW
GULASEKARAM
SPRING 2012
 
JUDICIAL POWER
 
JUDICIAL REVIEW
 
Article III, § 2, clause 3:  JUDICIAL POWER
Gives USSC original jurisdiction “in all Cases affecting Ambassadors, other public Ministers & Consuls, & those in which a State shall be Party.”
 
            Gives USSC appellate jurisdiction “in all the other Cases before mentioned. . . both as to Law & Fact, with
            such Exceptions, & under such Regulations as the Congress shall make.”
 
Article IV, clause 2:  SUPREMACY CLAUSE
            “This constitution, and the laws of the US which shall be made in Pursuance thereof; and all Treaties
            made, or which shall be made, under the Authority of the US, shall be the supreme Law of the Land”
 
Supremacy clause
            Creates judicial review that is not explicitly stated in the constitution
            Power to review legislative actions for constitutionality — Marbury v. Madison
            PROS ~ arguing for supremacy clause
                         * Weak ~ no power over sword or purse, only declare whether constitutional, & cannot enact laws
                         * No pressures ~ subject to appointment, no external or electoral pressures
                         * Impartial ~ free from political pressure or motivation, lifetime appointments
                         * Limited ~ their work can only be done when cases come before them
                         * Reasonable amount of decision-makers ~ unlike hundreds in legis. or one in exec.
                         * Balancing ~ can check other branches of government
            CONS ~ arguing against supremacy clause
                         * Non-representative ~ because they are appointed and not elected
                         * Political ~ appointed by a president that is politically affiliated
                         * Too liberal ~ easier to change constitution through their opinions than for legis. to respond
                         * No compelled expertise ~ does not require J.D.
                         * No real check on their power ~ amendment can be seen as a check
 
Advisory opinions
            USSC refuses, a few states allow
            When other branch wants judiciary to give opinion on constitutionality of proposed litigation
            Judicial power only extends to an actual case & controversy
                         * Facts of cases allow court to see how/who/what affected — Rescue Army v. Municipal Court of LA
                         * Avoids wasting judicial resources & everyone’s time
            PROS ~ arguing for advisory opinions
                         * Decisions would be made in friendly atmosphere rather than adversarial context
                         * Allowing would do job of legislature, which blurs the distinction of each branch
 
 
 
JUDICIABILITY
 
Review of state & local actions
            Judiciability ~ ability for a court to hear a case
            Appellate review
                         * USSC has power under appellate jx to review state & local actions — Martin v. Hunter’s Lessee
                         * Judicial power cannot extend by original jx because state courts already had original jx
                         * PROS ~ arguing for appellate review
                                     – State interests might obstruct regular administration of justice
                                     – Uniformity of decisions ~ if constitution was interpreted differently in every state, it would
                                        effect economy & trade
                         * CONS ~ arguing against appellate review
                                     – Materially impair sovereignty of states
                                     – State judges take oath to support US constitution
            Exclusivity
                         * Constitution is the supreme law of the land
                         * USSC decisions are binding on everyone, not just parties to the case — Cooper v. Aaron  
            Review for validity
                         * USSC can review validity of state laws in criminal proceedings — Cohens v. Virginia
                         * Even though the state is a party in the case, the power of review is necessary
                         * State judges are subject to external pressures
            Congress cannot overrule USSC w/a statute
                         * USSC interpretation of constitutionality is binding on Congress
                         * If Congress doesn’t like USSC interpretation, they can amend the constitution
                         * Dissent:  Scalia said Miranda is not a constitutional requirement, but a procedural prescription
 
Mootness/ripeness
            Mootness
                         * Case brought too late, no controversy due to changed circumstances — party dies, law changes
                         * Exceptions
                                     – Consistently evades review because of the nature of the harm
                                     – Voluntary cessation ~ D stops offending action, wait for case to moot, then continues action
                                     – Election law
                                     – Abortion regulation
            Ripeness
                         * Case brought too soon
                         * Case not yet sufficiently defined so court ruling may be too broad if all facts not yet known
                         * Prevents premature adjudication
                         * Pre-enforcement review is sometimes okay
           
Political question doctrine
            Some issues are better dealt w/by legislative branch
                         * Issues dealing w/foreign policy or defense
                         * Issues dealing w/executive or legislative branch powers/proceedings
            Requirements — Baker v. Carr
                         1) Textually demonstrates commitment to another branch
                         2) Lacks judicially discoverable & manageable standards for resolving it
                         3) Impossible to decide w/o initial policy determination of a kind clearly for non-judicial discretion
                     

.”
 
10th Amendment:  STATE POWERS
            “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are
            reserved to the states respectively, or to the people.”
 
Necessary & proper clause
            Constitutional basis + NPC = affirmative source of Congressional power
            Federal gov’t limited by 10th A
                         * Can only exercise powers granted it by the constitution
                         * Federalist view
                                     – Only constitutionally enumerated powers, everything else left to states
                         * State autonomy view
                                     – Reserves substantive zone of activities for states — US Term Limits v. Thorton
                                     – Reserved powers to states include local police powers — police, education, health care
            Constitution implicitly authorizes Congress to take means necessary — McCulloch v. Maryland
            PROS ~ arguing for state power
                         * Enhances democracy
                         * Lessens risk of tyranny, looks less monarchal
                         * States are laboratories for experimentation
                                     – 50 “labs,” states can learn from each other
                                     – Experimentation can also be bad — bigotry during Reconstruction
 
CIVIL RIGHTS ENFORCEMENT POWER
 
13th Amendment, § 1:  ABOLISHING SLAVERY
            “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have
been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”
 
15th Amendment, § 1:  VOTING RIGHTS
            “The right of citizens of the United States to vote shall not be denied or abridged by the United States or
            by any State on account of race, color, or previous condition of servitude.”
 
Scope
            Substantive view
                         * If Congress thinks it necessary for equal protection
                         * Use power to expand scope of rights by enacting a law
            Remedial view
                         * Congress can only provide remedies for what USSC has determined to be a violation
                         * Congress solely provides enforcement mechanism
                         * Congress can add to 14th A rights but not detract — Katzenbach v. Morgan