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

I. The Federal Judicial Power
1.1 The Authority for Judicial Review
1.1.1 Marbury v. Madison: Establishment of Judicial Review
Marbury v. Madison 5 U.S. 1 Cranch 137, 1803 (Marshall establishes judicial review)
Background:
2/04/1801 Marshall is made Chief Justice (sitting Secretary of State)
2/13/01 Circuit Courts Act passed (creates 6 federal courts)
2/17/01 Jefferson (Democratic-Republican) is elected President over Adams (Federalist)
2/27/01 Lame duck Congress passes Organic Act for DC (creates 42 justices of peace)
3/02/01 Adams nominates 42 magistrates; 3/03/01 Congress confirms the 42 magistrates
12/12/01 Marbury files suit in the Supreme Court
3/8/02 DR’s repeal Circuit Courts Act and the SC’s term (1 year)
1/03 DR’s start impeaching Federalists judges (start with Pickering-alcoholic and mental)

Facts: ∏ was appointed Justice of the Peace for D.C. by Adams, but after Jefferson took office he ordered none of the commissions to be given to those judges who had not yet
received them. As a result, ∏ did not receive his commission.

Holding:
Issue 1: Does Marbury have a Right to the Commission?
SC concluded that Marbury had a right to the commission b/c all appropriate procedures were followed (Prez signature, seal affixed). Cx: Could have ruled—no commission w/o delivery; but this would end case

Issue 2: Do the Laws Afford Marbury a Remedy?
The judiciary could provide remedies against the executive when there is a specific duty to a particular person, but not when it is a political matter left to executive discretion.

Issue 3: Do the Laws Afford Marbury a Remedy?
The court can review ministerial acts, where the executive has a duty to perform or refrain, but cannot review political acts, w/in the discretion of the executive. Thus, SC can issue a writ of mandamus (orders government official to take a ministerial act)

Issue 4: Does the Law Authorize Mandamus on Original Jx?
Marbury had invoked this act § 13 of Judiciary Act of 1789 “SC shall have the power to issue writs of mandamus, in cases warranted by the principles.” Marshall says this is unconstitutional b/c he interprets § 13 as conferring original jx on the SC thus allowing Marbury to file in the SC even though A3§2C2 doesn’t give the court jx to hear Marbury’s case as a non-appellate (original) case. Cx: the language in §13 does not appear to give SC expanded jx. It is saying 1) writs of mandamus can be used in appellate jx cases; or 2) writ could be used in both original and appellate jx cases.

Issue 5: Can the Court Declare Laws Unconstitutional? Yes b/c:
1) Const imposes limits on govt powers; meaningless w/o judicial enforcement.
2) “It is emphatically…the duty of the judicial department to say what the law it”
3) SC’s authority to decide cases implies the power to declare laws unconstitutional
4) Judges violate their oath to uphold Const if they enforced unconstitutional laws
5) Art IV makes Const “supreme law of the land”

The Brilliance of John Marshall’s Opinion
Marshall managed, at once, (1) to condemn the Jefferson administration’s actions as illegal; (2) to assert the power of the SC to declare acts of Congress, and also the Prez ,unconstitutional; and (3) in the process, to render a judgment that technically favored the Jefferson administration, thus preventing DR’s from disobeying the opinion.

Alexander Hamilton’s “Least Dangerous Branch”(The Federalist #78):
The judiciary from the nature of its functions, will always be the least dangerous to the political rights of the constitution; b/c it will be least in a capacity to annoy or injure them…the courts were designed to be an intermediate body between people and legislature in order…to keep the latter within the limits assigned to their authority.This is probably the strongest rationale for JR at the time.
1.1.2 Judicial Review of State and Local Actions
Fletcher v. Peck 10 U.S. 87, 1810(Yazoo Lands Case)
Facts: It was the first case in which the Supreme Court ruled a state law unconstitutional. In 1795 Georgia state legislature’s sale of land in the Yazoo River country (in what is now Mississippi) under the Yazoo Land Act of 1795 to private speculators in return for bribes. Voters rejected most of the incumbents in the next election, and the next legislature, reacting to the public outcry, repealed the law and voided transactions made under it. Peck had purchased land that had previously been sold under the 1795 act. Peck sold this land to Robert Fletcher and in 1803, Fletcher brought suit against Peck, claiming that he did not have clear title to the land when he sold it.

Holding contract, which according to A1S2C1 (Contract Clause) of the Const cannot be invalidated, even if illegally secured. : SC ruled that state legislature’s repeal of the law was unconstitutional. SC argued that the sale was a binding

Martin v. Hunter’s Lessee 14 U.S. 304, 1816 (Federal review of state civil cases)
Facts: Martin claimed title to land based on inheritance from Lord Fairfax, a British citizen. In 1793 U.S entered Jay Treaty w/ UK protecting the rights of British citizens who owned land in US. However, Hunter claimed that Va had taken the land before the treaties came into effect and thus title was his under a Va grant. Va CoA found for Hunter. SC in 1813 reversed and found for Martin. VA CoA responded: SC didn’t have power to review the state court judgments.

Holding: SC held that SC has the right of judicial review over any case or controversy arising under the Constitution or federal law, regardless of the court in which the case was originally heard. This is b/c 1) the absolute right of decision must rest somewhere; 2) state judges may have interests/prejudice 3) necessary to establish uniformity of decisions throughout the country

Cohens v. Virginia 19 U.S. 264, 1821 (Federal review of state criminal cases)
Facts: Cohens Brothers convicted of selling DC lotto tickets in Va countryside. Arrested in Va, the State argues that SC has no authority for all the same reasons as Martin but also b/c the grant of original jurisdiction to the SC of cases “in which a state shall be a party” precluded by negative implication, the exercise of appellate jurisdiction.

Holding: Marshall reaffirmed and extended Martin: “judicial [power] extends to all cases arising under the constitution or a law of the United States, whoever may be the parties.” Additionally, SC emphasized that state courts could not be trusted to adequately protected federal rts b/c state judges are dependent on the will of the legislature. Thus SC review is needed so criminal can appeal if they believe their conviction was unlawful.
1.2 Justiciability Doctrines
Introduction
The most important limit on the federal judicial power. These doctrines determine which matters federal courts can hear and decide and which must be dismissed. Neither the text of the Const nor the framers expressly mentioned any of these limitations.

Constitutional versus Prudential Requirements
Constitutional limits: derived from A3S2. Nine categories of “cases” and “controversies”
Prudential limits: instances wherein wise policy militates against judicial review.
Congress by statute may override prudential but not constitutional limits

Polices Underlying Justiciability Requirements
1) The justiciability doctrines are closely tied to separation of powers; in that they determine when it is appropriate for the courts to review a matter and when it is necessary for the courts to defer to other branches of government.
2) Conserves judicial resources by allowing the courts to focus their attention on the matters most deserving of review.
3) Improves judiciual decision making by providing the courts w/ concrete controversies best suited for judicial resolution. Issues presented in an adversary context.
4) Prevent courts from adjudicating the rights of those who are not parties to the suit

Note: 11th Amend
The Eleventh Amend prevents federal court relief against state governments.
1.3 Principles of Constitutional Avoidance
Ashwander v. TVA SC of US, 1935 (Brandeis Concurrence)
1) Must be a Case and/or Controversy
2) No advisory opinions
3) Obiter dicta: will not formulate a rule of law broader than the case which is before it.
4) Statutory interpretation preferred over Constitutional interpretation
5) Standing: will not rule on complaint of one who fails to show injury
6) Estoppel: will not rule on a statute at the behest of one who has benefited from it
7) Constitutional avoidance: Statutes are construed so as to avoid a constitutional issue.
Why?
Avoid confrontation w/ other branches w/o looking powerless
Limit the countermajoritarian power of judicial review
1.4 The Prohibition Against Advisory Opinions
Justifications for Prohibiting Advisory Opinions
1) Separation of powers is maintained by keeping the courts out of the legislative process. The judicial role is limited to decided actual disputes; it does not include giving advice to congress or the president.
2) Judicial resources are conserved b/c advisory opinions might be requested in many instances in which the law ultimately would not pass the legislature
3) Helps ensure that cases will be presented to the court in terms of specific disputes, and not as hypothetical legal questions

Criteria to Avoid Being an Advisory Opinion
1) There must be an actual dispute between adverse litigants
-In 1793 Washington sought the advice of the justices on legal questions involving America’s neu

ere the plaintiff would have suffered no judicially cognizable injury in the absence of statute. It seems that the court will allow standing when the “citizen suit provisions” pertains to a specific right, such as interracial housing, but not when the statute is essential procedural in creating the right for any person to sue.
1.5.3 Causation and Redressability
Introduction
A plaintiff must allege and prove that the personal injury is “fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” These requirements have been labeled causation—the plaintiff must allege that the defendant’s conduct cased the harm—and redressability—the plaintiff must allege that a favorable court decision is likely to remedy the injury.

Allen v. Wright 468 U.S. 737, 1984
Facts: ∏s, parents of black public school children brought a class action suit challenging the failure of the IRS to carry out its statutory obligation to deny tax-exempt status to racially discriminatory private schools. ∏ alleged two injuries. 1) they and their children were stigmatized by govt financial aid to schools that discriminate. 2) children’s chances to receive an integrated education were diminished

Holding: Ct held that 1st injury was too abstract to confer standing. 2nd claim constituted an injury however, standing was denied based on an absence of causation. Court stated that this injury was not fairly traceable to the government conduct. Thus, causation and redressability are separate requirements in addition to injury for standing.

Criticism of the Requirement
1) Redressability is inherently a factual question—how likely is it that a favorable court decision will have a particular effect—that should not be made at the outset of a lawsuit.
2) Causation/Redressability is inherently unprincipled b/c it depends entirely upon how a court chooses to characterize the plaintiff’s injury.
3) Causation/Redressability are assessments of probability. How likely is it that defendant’s conduct is the cause of plaintiff’s injury. This allows arbitrary decisions.
1.5.4 The Limitation on Third Party Standing
Introduction
Even when the plaintiff has alleged injury sufficient to meet the case or controversy requirement, the Court has held that the plaintiff generally must assert his own legal rights and interests and cannot rest his claim to relief on the legal rights or interests of third parties. In other words, a plaintiff cannot present the claims of third parties who are not part of the lawsuit.

Exceptions to the Limitation on Third Party Standing
1) Third party is unlikely to be able to sue—Barrows v. Jackson (1953) white man allowed to sue against racially restrictive covenant b/c blacks were not parties to it
2) Close relationship btw plaintiff and third party— Craig v. Boren (1976) seller of beer permitted to challenge as sex discrimination a state law imposing a higher age threshold on male than female buyers based on reasoning he had an interchangeable econ interest.
3) Overbreadth Doctrine: see free speech
4) Associations/organizations can sue based injuries to its members or itself
1.5.5 The Prohibition Against Generalized Grievances
Introduction
A generalized grievance is where the plaintiffs sue solely as citizens concerned w/ having the govt follow the law or as taxpayers interested in restraining allegedly illegal government expenditures. In other words, the bar against generalized grievance standing is inapplicable is a person claims that he or she has been denied freedom of speech or due process of law, even if everyone else in society has suffered the same harm. However, if the plaintiff alleges a violation of no specific constitutional right standing is not allowed.

Generalized Grievance as a Constitutional Bar
In