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

EXAM: May 14th, 8:30-4:30
Constitutional Structure
[Influenced by Magna Carta (limited king’s power)] Art. I à Legislative Powers
Art. II à Executive Powers
Art. III à Judicial Powers
Art. IV à Privileges and Immunities
Art. V à Amending the Constitution
Art. IV à Supremacy Clause
Bill of Rights à Amendments I-X
Amdt. X: Right to States
Amdt. XIV: State Action, Due Process, Equal Protection
**What else can we find as to where and why the Court has judicial review. Why/why not/where?
What does “Judicial Power” consist of?
To declare acts of congress and ministerial acts of the president etc as unconstitutional
*Judicial review isn’t specifically stated in the Constitution, however, Marshall’s rationale is as follows:
Marbury v. Madison
Marbury doesn’t get his commission àthe act that allows you to sue is not constitutional
Marshall’s Arguments:
Judges take an oath to uphold the Constitution (well…counterargument would be that Article I and II say that other legislators take oaths, too…)
At the time, there wasn’t all that much controversy, since Jefferson didn’t WANT them to be justices of the peace (it was what the president wanted) à in some ways, that’s the real genius of the case. He established judicial review while getting the approval of the president. 
How it Worked:
Marbury had a right to his Commission
This right has vested
The executive withheld this commission
This was a ministerial action, not discretionary (they HAD to deliver it, but failed to do so)
USSC has the right to review this Executive conduct of this type (i.e. non-discretionary conduct)
Marbury asking for mandamus by bringing action under USCC’s ORIGINAL JUDISDICTION
Used the Judiciary Act of 1789 which gives SC power to issue mandamus on Original Jx
Constitution Article III, Section 2 expressly sets for categories of SC’s original jurisdiction
Judiciary Act expands the SC’s original jx beyond what the constitution says
(In the end, despite maybe agreeing that Marbury had a right to his commission, he wasn’t in the right court in the first place so there wasn’t anything that he could do)
Argument: Marshall suggests that when the Constitution established the court’s Jx it established the floor AND ceiling (opposite of suggesting that there is a floor but Congress can add to it as long as the power doesn’t conflict with the constitution)
If a state law conflicts with a federal constitution, then the SC can overrule
Brown v. Board of Education case
Miranda rights are a constitutional rule
Once the court announces an constitutional rule, the legislature can’t change it anymore 
If that happens, then what other ways can we change constitutional rules?
Article V – pass an amendment 
Supreme court overruling itself 
Why is the Supreme Court best situated to decide Constitutionality of legislation, or decide what is constitutional?
Insulation (not the same political party pressures) 
Weakness (“no power of the purse/over the sword” etc…separate from the spending and enforcement functions of the government)
Expertise (purpose of the courts) 
**note: what are some cons about it? 
Justiciability Doctrines
Advisory Opinions
Political Question 
ARTICLE III, Section 2 à “judicial power shall extend over cases/controversies” (see p. 31) à ONLY cases and controversies! 
No advisory opinions (separation of powers – court can’t step in to take executive power/branches can’t give their power to another)
No mooted or unripe cases 
Plaintiff is the PROPER PARTY to be presenting this case for judicial review
Police the boundaries between law and politics à just because you don’t like something doesn’t mean that you should be the one to go to court and ask for judicial revi

rudential Requirements because they aren’t binding by the Constitution/the Supreme Court hasn’t determined that the Requirements have been mandated by the Constitution 
Lujan v. Defenders of Wildlife
2 questions: Constitutional or not? Standing or not?
Ranchers sue under ESA (Bennett)
State sues for EPE nonregltn of carbon emissions (MA)
Corp sues for denied tax exptn (Clinton)
Taxpayer sues for t’fer of $ to rel. school (flast)
Env sues under ESA (lujan)
Black parents sue because of tax exemption to disc. schools(allen)
Lyons (choke hold)
Valley forge (taxpayer sues for t’fer of prop to rel school
Warth (poor residents sue to overnturn zoning laws
Richardson (taxper sues for transparency in CIA
Reservists (antiwar activists sue to have congres give up office)
Newdow (pledge of alleg – god)
Mootness à can’t stay in court if the thing that’s happened has already passed (change in law, factual circumstances, etc, such that whatever the court does can’t change the legal relationship/rights of the party)
Exception: type of thing that will consistently change based on what they are à pregnancy (term is always 9 months, it’ll pass before they get to court)
When something is a political question, the court doesn’t review it
Marbury v. Madison was actually a political question
In that case, they were able to review the conduct of the Executive BECAUSE the delivering of the commission was a ministerial NON-POLITICAL act 
Non-Reviewable: Political, Discretionary Acts