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Constitutional Law I
Santa Clara University School of Law
Joondeph, Bradley W.

Constitutional Law I – Outline

Brad Joondeph

Fall 2014

I. The federal judicial power

A. The power of judicial review

1. Power to declare a governmental act void as inconsistent with the Constitution

a) In Marbury specifically, the authority to declare an act of Congress unconstitutional and declare an act of an executive branch officer unconstitutional

2. Marbury v. Madison: Review of acts by Congress and the Executive Branch

a) Court’s Opinion:

(1) Did Marbury have a legal right to his commission?

(a) YES

(i) The last material act was the signing of the commission or the affixing of the Seal

(2) Did Marbury have a remedy?

(a) Yes

(i) Presumptively, every violation of a legal right deserves a remedy

(ii) The legislature has directed the executive officer to perform a specific act (deliver the commission)

(3) Could the Supreme Court grant Marbury the remedy he sought?

(a) YES → Marbury sought a writ of mandamus, which the Court can grant

(i) Was mandamus the proper remedy?

(a) YES → Marbury wanted the Court to direct Madison to deliver the commission

(ii) Was the statute granting jurisdiction constitutional?

(a) NO

(i) § 13 of the Judiciary Act of 1789 violates the original jurisdiction clause of Article III because it extends the scope of original jurisdiction to all cases, rather than those specifically enumerated in Article III

(ii) Article III, § 2, Clause 2 defines the power of the judiciary and subject matter jurisdiction of the federal court

(4) Could the Court review the constitutionality of an act of Congress?

(a) YES → Under Marshall’s rationale

b) Justifications for judicial review

(1) Textual

(a) Nothing actually establishes the practice of judicial review, but Article III § 2 is where the power is derived

(i) Constitution provides subject matter jurisdiction for all cases “arising under the Constitution”

(ii) Requires the Court to uphold the Constitution

(2) Structural

(a) Constitution is a limit on power, which is meaningless if it cannot be enforced against the legislature

(b) Constitution is fundamental and it is the written law, and the courts’ function at the basic level is to interpret written law

c) The genius of Marbury

(1) By construing Section 13 as he did, Marshall gave the Court the opportunity to assert a significant power for the federal government generally, and for the Supreme Court in particular. Even more incredible is that Marshall managed this trick in the midst of a very hostile political environment

(a) Broad reading: The Supreme Court has the final say on what the Constitution means

(b) Narrow reading: The Supreme Court has the power to review what the Constitution means in a particular case

d) Judicial review and the “counter-majoritarian” difficulty

(1) Is judicial review a good thing?

(a) In a constitutional democracy, in which the People are the ultimate sovereign, does it make sense to invest such power in nine unelected judges? Why should their views about affirmative action, abortion, the proper methods of prosecuting the war on terrorism, or even the outcome of a presidential election trump those of our elected representatives?

3. Judicial review and the States

a) Supreme Court review of state laws: Fletcher v. Peck

(1) The authority of the SC to declare state laws unconstitutional

(a) Extends Marbury to state laws

(2) Case arose through federal system

b) Supreme Court review of state court judgements: Martin v. Hunter’s Lessee

(1) The authority of the SC to review the judgments of state courts on questions of federal law

(2) Case arose in state court

(3) Position of the Virginia Court of Appeals

(a) If a federal question arises through state court, the state court is the final arbiter because it is an independent sovereign

(4) § 25 of the Judiciary Act of 1789 – This provision plainly granted the Supreme Court the power to review the Virginia Court of Appeals’ decision.

(a) Question: Is §25 of the Judiciary Act, in so conferring this power of judicial review over state court judgments, constitutional? (as implicated in Article III).

(5) The Supreme Court’s Opinion:

(a) Text: The only federal court required to exist under Article III is the Supreme Court – necessarily implied that Supreme Court has right to hear more than a handful of cases (which would be the case if they only could hear cases of original jxd). If Congress decided not to create any lower federal courts, and the Supreme Court did not have the power to review appeals from state court judgments, the Supreme Court would have no appellate jurisdiction.

(b) Context: Protection of federal rights requires provision of a federal forum in which to vindicate those rights – State courts cannot be fully trusted to protect federal rights.

(c) Structure

c) Virginia v. Cohens

(1) Reaffirmed Martin

(2) Overruled part of Marbury

(a) Cohens held that the SC has jurisdiction over claims of state questions in violation of the federal constitution

(b) Cohens – states are subject to the power of SC in cases appealed from state courts falling within the subject matter jxd spelled out in Article III.

(c) Marbury now means that Congress cannot add original jurisdiction

(i) Those cases enumerated have the option to be heard on EITHER original OR appellate jurisdiction

4. Breadth / Depth of Judicial review

a) Theoretical questions

(1) Departmentalism?

(2) Judicial supremacy?

(3) Something in between?

b) Practical and political constraints on federal judicial p

brought before them through the litigation process by adversarial

(3) No “case” or “controversy” as detailed in Article III.

b) Definition of advisory opinions – Opinion by a court in a dispute meeting either of two criteria: (1) the legal dispute is “abstract,” lacking an actual, concrete proceeding between adversarial parties; or (2) the court’s decision will have no binding legal effect.

c) Examples

3. Standing

a) The essential requirements under Article III – in order to constitute a “case” or “controversy” in Section 2, clause 1.

(1) Injury in fact – invasion of a legally-protected interest

(a) Concrete and particularized

(b) Actual or imminent – not conjectural/hypothetical

(2) Causation – injury is “fairly traceable” to the challenged action of D, and not cause of independent action of third party not before the court.

(3) Redressability – likely, not speculative, that injury will be redressed by favorable decision from SC.

b) Jurisdictional in nature – Standing must be resolved before court reaches any issues on the merits.

(1) Standing cannot be waived

(2) Must be present even when parties have not raised the issue

(3) Fed cts must consider the issue sua sponte.

c) Relief-specific – Standing must be established for each form of relief sought.

(1) Party could have standing to seek one type of relief but not for another.

d) An important example of the analysis: Lujan v. Defenders of Wildlife

(1) Injury in fact?

(2) Causation and redressability?

e) “Citizen suit” provisions

f) “Procedural” injuries

4. Timing questions

a) Ripeness

b) Mootness

5. Political Questions – complete abdication of SC involvement – RARE.

a) The central idea – a question that the Constitution vests for its resolution in the elected (or “political”) branches, rather than the courts. To be sure, the lawsuit might still present a question of constitutional law. But it is not one that the federal courts are empowered to decide.

(1) Two things to consider:

(a) where there is a textually demonstrable constitutional commitment of the issue to a coordinate political department; and

(b) where there is a “lack of judicially discoverable and manageable standards for resolving it.”