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

FALL 2011
·         Judicial review in the United States refers to the power of a court to review the constitutionality of a statute or treaty, or to review an administrative regulation for consistency with either a statute, a treaty, or the Constitution itself.
·         The Judiciary Act of 1789
o   Established the lower federal courts and specified the details of federal court jurisdiction.
§  Section 25 of the Judiciary Act provided for the Supreme Court to hear appeals from state courts when the state court decided that a federal statute was invalid, or when the state court upheld a state statute against a claim that the state statute was repugnant to the Constitution.
·         This provision gave the Supreme Court the power to review state court decisions involving the constitutionality of both federal statutes and state statutes.
·         The Judiciary Act thereby incorporated the concept of judicial review.
·         SCOTUS Authority for Judicial Review of Congressional (Legislative) and Presidential (Executive) Actions
o   Constitution was silent as to whether federal courts have an authority to review executive and legislative acts
§  Who says it’s the Courts, and not Congress, to decide whether a given statute does in fact conflict with the Const’?
o   Marbury establishes the power of the judiciary to review the constitutionality of executive actions
§  For example, some matters–such as whether to veto a bill or who to appoint to office–are entirely within the president’s discretion and cannot be reviewed.
o   Can SCOTUS declare laws unconstitutional?– Marbury says yes
§  Constitution imposes limits on gov’t powers and that these limits are meaningless unless subject to judicial enforcement
§  Inherent to the judicial role to decide the constitutionality of the laws that it applies
·         “It’s emphatically the province and duty of the judicial dept to say what the law is”
·         “and any law that is repugnant to the const’ is void”
§  Court’s authority to decide “cases” arising under the Constitution implied the power to declare unconstitutional laws conflicting with the basic legal character
§  Judges have taken an oath and oath would be violated if it allowed enforcement of unconstitutional laws
§  And Article VI states that the Constitution is the “supreme law of the land”
·         Only the laws that are made pursuant to the constitution have rank
o   Case: Marbury v. Madison
§  Facts: π brought suit directly to SCOTUS because his commission as a judge was not get delivered.  Π argues that judiciary act gave SCOTUS original jdx. However, SCOTUS chose to read it differently.
§  Holding: SCOTUS ruled against π and held that it could not constitutionally hear the case as a matter of original jurisdiction.
·         Judiciary Act explicitly authorized the relief being sought by plaintiffs (writ of mandamus)
·         It was unconstitutional because Congress cannot allow original jdx beyond the situations enumerated in Article III of the Constitution.
o   “Original jdx only in all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a party.”
o   The court read the Act to give Court original jdx over matter
·         Therefore, SCOTUS held that when there is a conflict between a constitutional provision and congressional statute, the Court has the authority (and the duty) to declare unconst’
·         Review of State court is the exercise of SCOTUS’s appellate jdx
o   Art III § 2
§  “Supreme Court’s appellate jdx may be regulated and limited as Congress shall provide.”
·         Constitution does not explicitly say that SCOTUS may review state court decisions
·         But the Judiciary Act of 1789 provided for SCOTUS review of the state court judgments
o   Section 25 allowed SCOTUS to review state court decisions by a writ of error to the state’s highest court
·         Can SCOTUS review the Constitutionality of a Decision by a State’s Highest Court?
o   Case: Martin v. Hunter’s Lessee
§  Facts: VA gave land to a US citizen. British guy claims that it is his land and wants to eject him. VA trial court says plaintiff wins. Federal question jdx because it involved a disputed federal treaty
·         SCOTUS issued a writ of error and reversed Virginia’s decision
·         Virginia Court of Appeals declared that SCOTUS lacked the authority to review state court decisions
·         Argued that SCOTUS belonged to one sovereignty, meanwhile Virginia, a state court, belonged to a different sovereignty
§  Holding: Court held that under Article III, the federal courts have jurisdiction to hear all cases arising under the Constitution and laws of the United States, and that the Supreme Court has appellate jurisdiction in all such cases, whether those cases are filed in state or federal courts
·         Essential to ensure uniformity in the interpretation of federal law
·         Cannot have each state interpreting fed law differently
o   Case: Cohen v. Virginia
§  SCOTUS has the right to review state criminal cases for constitutionality
·         But SCOTUS will not review a state court ruling of state law
o   SCOTUS’s appellate review of state court judgments is limited to federal questions decided by state courts (and can check for const’ of a state law)
·         Criticisms of Judicial Review
o   some have argued that the power of judicial review gives the courts the ability to impose their own views of the law, without an adequate check from any other branch of government
o   First, the power of judicial review is not expressly delegated to the courts in the Constitution. The Tenth Amendment reserves to the states (or to the people) those powers not delegated to the federal government.
o   the second argument is that the states alone have the power to ratify changes to the “supreme law” (the U.S. Constitution), and that the states should play some role in interpreting its meaning. Under this theory, allowing only federal courts to definitively conduct judicial review of federal law allows the national government to interpret its own restrictions as it sees fit, with no meaningful input from the ratifying power
Two questions were eluded from Marbury v. Madison
(1) Is the Constitution the supreme law of the land?
(2) Are the courts the ultimate or exclusive interpreters of the Constitution?
Depends on the reading
Narrow: judicial review is simply a byproduct of a court’s duty to decide cases within its jdx in accordance with law, including the Constitution
Marshal states the Const’ is “a rule for the govt of courts AS WELL as the legislature” and thus “courts, AS WELL as other depts., are bound by that instrutment
Broad: Regards the courts as having special competence to interpret law, including the Const’, so that they are the ultimate, supreme interpreters of the Const’.
Marshal states “it is emphatically the province and duty of the judical dept to say what the law is”
Case: Cooper v. Aaron
Brown v. Board of Education held racial segregation of public schools unconstitutional
Little Rock school board’s efforts to follow the fed court’s decree was blocked when Governor Faubus placed Little Rock’s Central High School “off limits” to black students and called out the National Guard
Governor and Legislature of State claim that there is no duty on state officials to obey federal orders resting on SCOTUS’s interpretation of the US Constitution
Also claimed that obeying the order would lead to violence
SCOTUS is not limited to reviewing state court decisions; federal courts also have the authority to review the constitutionality of state laws and actions of state officials.
No state legislature or executive or judicial officer can refuse to obey a federal court order based upon a federal interpretation of the Cons’t without violating the duty to support the const’ (oath).
·         Doctrine of Implied Powers
o   The fed gov’t may validly exercise power that is ancillary to one of the powers explicitly listed in the Constitution (ie. powers other than commerce, tax and spend, etc.), as long as this ancillary power does not conflict with specific Constitution

ey have in the past, and will again, travel abroad to the habitats of the affected species in order to observe and study the species
o   Holding: P failed to show actual or imminent harm
§  “such ‘someday’ intentions—without 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.”
§  (ii) there must be a causal connection between the injury and the conduct complained of; and
·         Litigant must show that the challenged gov’t action “caused” the injury
·         The litigant must show that“but for” cause of the injury
§   (iii) it must be likely that this injury will be redressed by a favorable decision.
·         The relief sought must “alleiviate, provide remedy, for COA that plaintiff is seeking”
·         Redressibility focuses on the relationship between the injury and the relief sought
o   The relief requested must be designed to alleviate the injury caused by ∆s conduct
o   Case: Massachusetts v. EPA
§  Facts: EPA refused to enforce the Clean Air Act against motor vehicle emissions. Mass appealed the EPA’s refusal.
§  Holding: Mass has standing to sue.
·         Injury: damage to state’s coastline will, and continue to, occur
·         Cause: injury to the coastline is fairly traceable to the EPA’s inaction
·         Redress: there is redress, even though the outcome of the remedy might be delayed while new motor-vehicle emissions are implemented
§  Dissent (J. Roberts)
·         Damage to coastlines is so tenuous and speculative. Further, fails on redress factor because emissions from other countries are likely to drawf any reduction from EPA’s enformcement.
·         Constitutional and Prudential Elements of Standing
o   Constitutinal requirement: must fall under case or controversy
o   Prudential requirement: judicially created gate-keeping rule
§  It can be brought under the Constitution, but Courts have decided that wise policy militates against judicial review.
§  Congress may instruct Courts to disregard such restriction because it isn’t based on Const’.
·         Not constitutionally mandated under Art. III
§  Elements
·         (1) Plaintiff must assert his own legal rights/interests
o   No third party standing
o   Exceptions
§  Person has a close relationship with the person injured
§  Hinderence or hardship affecting the third parties ability to protect their interests
·         (2) Cannot Assertof generalized grievance
o   Shared by all, or a large class of citizens then no standing
o   Generalized grievances are not allowed
§  Unless plaintiff can show that the challenged govt action caused him to suffer injury
§  ie. taxpayer lawsuits
·         generally, there is no tax payer standing
o   cant say you were injured because your taxes contribute
·         Cohen Exception
o   Challenge a tax action of gov’t
o   Challenge is based on constitutional provision that limits taxing
·         Case: Valley Forge Christian College
o   Facts: upset about gov’t giving away property to religious organization
o   Hodlding: no standing to group to challenge. Congress wasn’t acting under taxing but rather acting under property power
§  There is no citizen standing
·         Congress can confer standing to indivudials by creating new interests in them by legislatiton