Select Page

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

Gulasekaram / Constitutional Law 1 / 2013 Spring
Text: Constitutional Law, 17th / Kathleen M. Sullivan, Gerald Gunther
1.       Art III creates and defines the fed judicial power.
a.       1) Original Jurisdiction = Under Article III, Section 2, the Supreme Court has original jurisdiction “in all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party.”
                                                               i.      This provision is self-executing: Congress may neither restrict nor enlarge the Supreme Court’s original jurisdiction,
                                                             ii.      but Congress may give concurrent jurisdiction to lower federal courts and has done so regarding all cases except those between states.
b.       2) Appellate Jurisdiction = Article III, Section 2 further provides that “in all other Cases before mentioned [i.e., arising under the Constitution, Act of Congress, or treaty], the Supreme Court shall have appellate jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”
2.       Judicial Review of co-equal branches of Federal Government
a.        Although not explicit in Art III, SC determines constitutionality of acts of co-equal branches of the government.  MARBURY (1803 Marshall)
                                                               i.      The Art III does not explicitly state that the USSC may determine the constitutionality of acts of other branches of government.  However, MARBURY established judicial review over other branches of the federal government; the Constitution is “law” and it is the province and duty of the judiciary to declare what the law is. 
b.       COUNTER: L and E has rights/duty to interpret the Const under oath Art VI cl. 3
                                                               i.      Because they are appointed and not elected – may not be representing the people
c.        NONETHELESS:
                                                               i.      Balanced co-equal branches (purse, sword, and judicial review)
                                                             ii.      The idea of judicial review is inherent in concept of separation of powers
1.       Ppl who write/enforce laws shouldn’t be the same who decide constitutionality
                                                           iii.      Anti-majoritarian = Judiciary is not as subject to politics and pressures of the moment
1.       Undemocratic? Possibly, but it’s so established. Can always amend!
d.       MARBURY
                                                               i.      F/ MARBURY sued in USSC under §13 of Judiciary Act of 1789, asked SC to issue writs of mandamus to Secretary of State / though not clear whether § 13 gave SC original jx, SC heard the case but declared as the lack of jx. 
                                                             ii.      [H] case dismissed as lack of jx
1.       Marbury had the right to his commission but the court did not have the power to force Madison to deliver the commission
                                                           iii.      Extension of judicial power does not necessarily mean that SC has jx over the case.
1.       Art III § 2 cl 1: jud pwr extends to Marbury’s case = the Judiciary Act of 1789 as “the Laws of the US”
2.       YET, under Art III § 2 cl 2: org jx (X)
3.       => §13 unconstitutional b.c SC cannot issue writs of mandamus to Secretary of State
                                                           iv.      doing so, MARBURY established judicial review
1.       Art III § 2 cl 1: jud pwr extends to Marbury’s case
2.       Judges have to take oath to uphold the constitution Art VI cl. 3
3.       Supremacy clause Article IV clause 2
4.       Historical argument: Fed Papers 78 intention of JR
5.       Some Const provisions are specifically addressed to SC & oath
a.        [CH] limit of textual defense = Some address L&E as well = textual understanding of Const may mean each branch should interpret Const regarding its own function
3.       SC = [G] final arbiter of Constitutional decision and interpretation.
a.        Finality: SC the top of the judicial hierarchy / the debate about legality would naturally end at the top
                                                               i.      Also, under SoP doctrine, other branches are prohibited from interference w the judiciary’s final decision.
1.       checks and balances: Not in constitutional language, rather constitutional structure
b.       (authority)
                                                               i.      NO authoritative branch = each has equal authority
1.       conflicts resolved through political compromise
2.       Jefferson, Jackson, Meese SC as final arbiter of Con interpretation
                                                             ii.      Each branch authoritative in its own spheres
1.       current system ~ pol Q doctrine: SC would not resolve pol Q
2.       certain Con provisions would be interpreted by other branches
3.       implication: each provision has one branch as a final arbiter
a.        Jefferson, pardoned those convicted under the Sedition Act, claiming the Act is unconstitutional = Exercising pardoning power is discretionary w the President
                                                           iii.      J is the authority
1.       Marshall, Water Gate
2.       J’s role as umpire, views are final unless reversed by Amend or SC itself
3.       (+) greater insulation from majoritarian pol than the other branches
4.       (-) those cases are ambiguous in which branch is the authority & did not clearly claim that other branches are bound to follow SC interpretation
                                                           iv.      Each branch, in its own sphere, may bring up contrary constitutional interpretations. But in overlapped spheres, judicial interpretation > L or E interpretation under SoP.  Otherwise, it would violate well-established judicial tradition of constitutional law.
4.       DICKERSON v. US (2000 Rehnquist) = Congress may not overrule constitutional decisions of SC by statute
a.        [H] SC rejected Congressional effort to modify MIRANDA by enacting statute
b.       “Congress may not legislatively supersede [SC] decisions interpreting and applying the Con”
                                                               i.      1) not by enacting statutes
1.       Amendment may work…but very difficult
2.       OR, SCOTUS can reverse itself
                                                             ii.      2) when the “spheres of action” overlap and political and judicial interpretations of the Const conflict, judicial interpretations always win. 
1.       each branch may interpret Con for its own function within its own “spheres of action”
c.        SC has authority to interpret and enforce the Con, and final arbiter of legal matters
5.       Judicial Review of State and Local Actions
a.        Narrow: binding to the parties, and parties in subsequent similar cases
                                                               i.      In principle, only parties to the suit are bound by the decision
b.       Broad: nonparties have a gen obligation to conform to principles of con law b.c SC decision is the law of the Con / just as Con in binding on the nation, SC con law is binding on the nation as well
c.        [CH] Arg for SC review of state decisions: since no lower ct might have been created, Framers must have meant SC appellate review over state decisions to ensure the Supremacy and uniformity of fed law
6.       MARTIN v. HUNTER’S LESSEE (1816 Story) (what law control inheritance of land): SCOTUS has power to review state’s highest court decisions that involve fed law
a.        F/ D, a British citizen, claimed title to land in Vg, obtained through will.  P claimed the land under state laws that confiscated the prop of British citizens.  D supported his claim w the anti-confiscation provisions of treaties bt the US and England.
b.       Reasons for appellate review over state court decisions involving interpretation of fed law
                                                               i.      State interests might obstruct regular admin of justice
                                                             ii.      Authority to keep national uniformity = Uniformity of decisions because Constitution interpreted diff in every state and would effect economy and trade
c.        Reasons against appellate review
                                                               i.      Materially impair sov of states
                                                             ii.      State judges also take oath to support US constitution
7.       COOPER v. AARON (1958 Warren, unanimous)
a.        Even when based on particular acts of a certain jx. Constitutional ruling is binding in all jx. Congress cannot change it.
b.       F/ based on BROWN (held unconstitutional racial segregation of pub schools), Fed district ct ordered desegregation of pub schools, governor (state E) and state L efforts to thwart the order, claiming state sovereignty / violent resistance among in-staters against desegregation
c.        [H] State E and L bound by SC’s exposition of the Const = CANNOT thwart the execution of the Court’s judgment
                                                               i.      state E/L may not delay or evasively modify implementation of SC’s decision b.c the SC held children’s constitutional rights are not to be sacrificed
                                                             ii.      Reasoning = under Marbury, Fed ct is supreme re interpreting the Con, so SC interpretation of the Con is “the supreme law of the land” / and Under Supremacy Clause, binding on States
1.       Hence, interpretation of 14th Amd in BROWN is supreme law of the land, state E/L is bound
                                                           iii.      HENCE, state officials should conform to Con L b.c of their oath pursuant to Art VI cl 3 (“to support the Const”)  
8.       HYPO = El Salvador’s Constitution
a.        Could happen in the US?
                                                               i.      No, MAY stop at the USSC OR L changing the law / still, or Presidential veto or other powers
                                                             ii.      American L does not have such controlling devices re J
b.       Crisis ended? Following SC’s June decision: L re-elected 2006 and 2012 justices, and elected a new SC president
                                                               i.      Is this compliance?  If not, SC as final arbiter of Constitution is still not established
                                                             ii.      SC president – ordinarily elected by L?
c.        Lack of checks and balances re electing SC justices
                                                               i.      L directly elects SC justices?  W.out advice or confirmation from E?
1.       What’s the authoritative documents?
2.       No guidance re election, or no transparency?
a.        SC’s June decision w guidance of full transparency about the election process  
b.       “election” of 2006, 2012 justices = for political reasons?
                                                             ii.      Independence of justices
1.       Once elected, permanent post?
d.       L’s legal devices to control SC
                                                               i.      Directly electing 5 SC justices EVERY 3 yrs
                                                             ii.      Transferring justices to another Chamber
                                                           iii.      Approving decrees: Decree 743 to invalidate the SC’s June decision, decree to convoking a session w/out president
                                                           iv.      Commission to investigate the SC justices
                                                             v.      Impeachment
2) Constitutional/Prudential Limits on Judicial Power
(a) Congress’ Authority to Create “Exceptions” to Appellate Jurisdiction
 Exceptions Clause (Const., Art. III), Ex Parte McCardle
(b) Justiciability
 i) Advisory Opinions
 Rescue Army
 ii) Sta

too late (mootness, ripeness cases)
c.        But not pol Q
                                                               i.      (def) issue committed to the unreviewable discretion of L/E
                                                             ii.      Prudence 
 (b) Justiciability – i) Advisory Opinions
RESCUE ARMY (Rutledge 1947)
5.       [EXAM TIPS] when a state ct issues an Adv Op (allowed in most states) and the loser seeks USSC review
a.        USSC cannot hear the issue absent actual “case or controversy” as required by Art III
b.       EVEN when the state Adv Op is based on fed law
c.        Don’t confuse Dec Judg 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)
6.       ISSUE = is this Adv Op?
a.        [R] Judicial power of Art III court has been believed not to extend to issues w.out actual cases or controversies b.c Art III § 2 affirmatively grants jud pwr to enumerated cases or controversies. As a corollary, SC will not render Adv Op to E/L on the constitutionality of action/legislation because there is no actual “case or controversy” and J cannot bring changes. (two criteria for adv op)
                                                               i.      Alleviate P’s injury, change D’s behavior, or otherwise alter rights/duties
b.       [H] E may argue that Adv Op may help prevent enacting unconst laws, as is done by some state SC. Also, it is const to ask declaratory judgment (28 USC 2201) when in need of a declaration of rights
c.        [N] DJ is final judgment on the rights and liabilities of parties / after the law’s passage but before enforcement, and SC held that DJ also requires two criteria for Adv Op
                                                               i.      / state sc is diff b.c as fed J, SC needs to consider SoP among fed branches
                                                             ii.      (+) wait and see
7.       (DEF) SC will not render an Adv Op to L or E on the constitutionality of action/legislation b.c there is no actual “case or controversy” nor it can have provide effective relief    
a.        (def) Adv Op = opinions on the legality of executive or legislative action that does not involve an actual “case”
b.       To constitute as a case or controversy = NOT hypothetical, academic or moot / definite, concrete bt adverse parties
8.       (P) Criteria to avoid advisory opinion (must)
a.        Actual (definite, concrete) disputes b.t adverse litigants
b.       Likelihood that ct decision will bring change or have effect
                                                               i.      Alleviate P’s injury, change D’s behavior, or otherwise alter rights/duties
                                                             ii.      (rationale) if Adv Op is not followed after its issuance (e.g. disregarded), it would violate SoP b.c L or E may “revise and control” J.  refused, revised, overturned = SC opinion is not final.  Hence, if the judgment is not dispositive, it is violation of SoP.  (must have some effect)
1.       SCOTUS only wants to issue opinions that affect injuries/change rights or duties
2.       (-) L can always amend the law, in effect overturning SC’s statutory interpretation.
                                                           iii.      Alleviate P’s injury, change D’s behavior, or otherwise alter rights/duties
9.       [P] BUT NOTE:
a.        State may allow advisory opinions: some state SC issue adv op. 
                                                               i.      (+) may prevent enacting unconst laws
b.       Declaratory judgment (28 USC 2201)
                                                               i.      to ask for a declaration of rights after the law’s passage but before enforcement
1.       (CH) justiciable so long as the case meets TWO criteria for Adv Op
2.       ? Behaviors only to challenge legality = injury? sometimes yes, sometimes no
3.       works in very limited situation
10.   RESCUE ARMY (Rutledge 1947) Policy reasons for refusing Adv Op: to ensure that constitutional issues affecting legislation to be determined …
a.        In friendly non-adversarial proceedings
b.       In advance of necessity
c.        In broader terms than are required by the facts
d.       In absence of a injured party
e.        Where the statute could be interpreted to avoid injury
f.         Gov must function constitutionally
11.    (CH) Some states allow it, but SCOTUS doesn’t because:
a.        SoP: keep J out of legislative process.  J’s role is to decide actual disputes. 
b.       Conserving judicial resources
c.        Ensuring cases of specific disputes / concrete, not hypothetical
d.       (OL) 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
e.        Too broad—just b/c unconstitutional doesn’t mean anyone would challenge it