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Constitutional Law I
Santa Clara University School of Law
Schwartz, Lois W.

Constitutional Law I Outline (Schwartz) Spring 2010

I. FEDERAL JUDICIAL POWER
l The Constitution
 Article I: Congress/Legislative Branch
 Article II: Executive Branch
 Article III: Judicial Branch
■ less defined, let Marshall develop powers of branch himself and interpret
 Article IV: states and citizens
 Article V: procedure
 Article VI: central gov
 Article VII: ratification
 Amendments: some but articles focus this semester
l see handout on Limits on Government Authority: Constitutional Standards of Review (decreasing strictness)
 Strict Scrutiny: Burden of proof on Gov to show that challenged action is “necessary to advance a compelling government interest” and is the least restrictive means of achieving that interest. “Strict in theory and fatal in fact.”- Prof Gunther
■ substantive due process: gov action that directly burdens fundamental right
■ Equal Protection Clause: Gov action that discriminates against suspect class or fundamental rights
■ freedom of expression
 Intermediate Scrutiny(Balancing): Burden of proof is on the Gov to show that the challenged action is “substantially related to an important/substantial/significant interest” that outweighs the interest infringed.
■ Means under Strict and Intermediate must be “narrowly tailored to achieve the goal”
l state and local regulation of IC
l Privileges and Immunities Clause
l K clause (but fed gov impairment of existing K’s only needs rational basis)
l Equal protection clause: gender or “illegitimacy”
l freedom of expression: commercial speech
 Rational Basis: most common; Burden of Proof is on the challenger to show that the challenged action “is not rationally related to any legitimate government interest.”
■ substantive due process: non-fundamental rights
■ Fed regulation of IC
■ Fed legislation enforcing 13th, 14th, and 15th amendments

l The Authority for Judicial Review
 Marbury v. Madison (1803): Established authority for the judiciary to review the constitutionality of executive and legislative acts to see if their conduct is permissible or must be struck down; not in Constitution, judicially created power by Marshall
■ Marbury entitled to commission, no defect in way commission made, but Ct lacked authority to issue writ under Judiciary Act of 1789 as Act did not fall under Ct’s Constitutional authority
■ Ct establishes that Article III is source of judicial authority, and Congress cannot expand that power to suit own purposes; Article III authorizes maximum Jx of Fed courts
l Congress can establish rules governing Article III but can’t do it in way that violates Constitution or makes Ct a lackey (authority for judicial review of legislative acts)
l executive branch is political in nature and has no incentive to review own actions so judiciary should serve as check on actions
 Ct draws distinction btw areas involving individual rights and gov duties and political areas in which executive has discretion
 Authority For Judicial Review of State Court Decisions
■ Martin v. Hunter’s Lessee (1816): establishes authority for Fed judicial review of State court civil decisions that involve issues of Fed law
l SCOTUS often takes cases when state supreme courts conflict, but not always
l Holding: USSC has authority to review state supreme ct decisions in civil cases if they involve fed law
■ Cohens v. Virginia (1821): Court has power to review State Supreme Ct decisions in criminal cases as well as civil, where D claims Constitutional rights have been violated
l facts: lottery authorized in DC, brothers arrested for selling tickets in VA in violation of state law; Cohens convicted and fined in VA, Supreme Ct of VA rules; D’s appeal to SCOTUS
l holding: SCOTUS has authority to review state ct criminal proceedings
 “Ct bound to hear all questions that involve Constitutional questions”

II. JUSTICIABILITY (Limits on Fed Judicial Power)
I. CONGRESSIONAL LIMITS: under Article III appellate Jx of SCOTUS is subject to “exceptions and regulations” as Congress may make (Exceptions and Regulations Clause)
i. issue of how much authority Congress has to restrict Ct’s Jx; continuing source of tension
ii. Ex Parte McCardle (1868): Facts: Congress has exercised proper authority from keeping Ct from hearing pol sensitive case involving Reconstruction; McCardle is Confederate soldier and publishes anti-Reconstruction newspaper; McCardle jailed under Reconstruction Act and petitions for Habeas Corpus and ultimately ends up appealing to USSC under Habeas Corpus act which authorizes fed cts to issue Habeas Corpus authority to State Cts
a) Congress suspends Act to prevent D’s release; SCOTUS says is w/in Congress’ authority in Exceptions and Regulations Clause doesn’t want to interfere
iii. United States v. Klein (1871): Congress can withdraw right of appeal to Ct under Exceptions Clause of Art III, but limiting appeal of pardon is unconstitutional and that Congress had “exceeded its power by invading province of judicial branch by proscribing the rule that the Court was to apply in making a decision.”
a) separation of power as limit on Congress’s Authority
II. Justiciability Doctrines: determine what matters fed cts can hear and decide and which must be dismissed (Constitutional Limits: limits in law v. Prudential Limits: judicial admin/discretion);
-Article III § 2 authorizes fed cts to hear several types of “cases” and “controversies”; SCOTUS has interpreted these words as giving rise to a series of limits on fed judicial power “justiciability doctrines”
A. Prohibition Against Advisory Opinions: Core of Article III req for “cases and controversies” is that fed courts cannot issue “Advisory Opinions” (self-imposed); Characteristics in lawsuit to avoid being an advisory opinion and be justiciable:
i. (1) There must be an actual dispute between adverse litigants
ii. (2) There must be a substantial likelihood that a fed court decision in favor of a claimant will bring about some change or have some effect
iii. Plaut v. Spendthrift Farm, Inc. (1995): D is horse farm; dispute concerns amended portion of statute from Congress that would require Ct to reconsider decided cases in light of new statute of limitations
a) Ct: Article III grants Ct ability to decide cases, and once decided Congress cannot ask Ct to rehear case; Congress can’t ask courts to say law is something different than what they already said it was; would violate separation of powers
b) Hayburn’s Case (1792): Ct won’t give advisory opinions to President
c) prohibition part of other justiciability doctrines, although declaratory judgments are allowed “so long as they meet requirements for judicial review”
B. Standing: may be most impt doctrine, determination of whether specific person is proper party to bring a matter to the court for adjudication; some requirements Constitutional (derived from Article III) while some are Prudential (modifiable by Congressional statute)
i. Constitutional Standing Requirements:
a) (1): Injury: P must allege that he or she has suffered or will imminently suffer an injury (lots of leeway in interpretation)
b) (2): Causation: P must allege that the injury is fairly traceable to the D’s conduct
c) (3): Redressability: P must allege that a favorable fed court decision is likely to redress the injury
ii. Prudential Standing Requirements: Congress may override by statute
a) (1): Parties can only assert their rights not rights of 3rd parties (Prohibition of 3rd party standing)
· EXC: special relationship btw claimant and 3rd party (ex: parent and child/ physician and patient; no standing for liquor store owner suing for underage patrons; sale relationship not one contemplated by law)
· EXC: When one party lacks ability to bring suit on their own (ex: parent for minor; certain kinds of association standing)
b) (2): P may not sue as a taxpayer who shares a griev

funds under taxing and spending clause of Cx (Art I, § 8) and not “incidental expenditure of tax funds” in a regulatory statute
· 2) P must establish “a nexus btw the status and the precise nature of the Cx infringement alleged”
· P must argue Congress is violating a particular Cx provision w/ expenditure and not just “exceeding power” under Cx, Art I, § 8
· in case violation of Establishment Clause was proper violation for standing
· Hold: Taxpayers have standing only to challenge expenditures under Art I, § 8 spending power as violating the Establishment Clause
b) Hein v. Freedom From Religion Foundation (2007): Ct limited Flast, held that taxpayers lacked standing to challenge expenditures from general executive revenue as violation Establishment Clause
· P’s challenged Bush’s “Faith Based Initiatives” program
· Standing? No Ct says doesn’t meet Flast req., distinguishing: not Congress appropriating tax dollars just Executive
· R: P’s don’t have standing as taxpayers to challenge Executive
· policy: has to be actual “Case and Controversy” involving Executive, no direct logical link btw taxpayers and executive (can’t sue judicial branch)
B. Ripeness: Justiciability doctrine that determines when litigation can occur. P must show that review is not premature, P must demonstrate that harm has occurred or will imminently occur. (overlap w/ Standing)
i. Usually used to ask specific question: When may a party seek pre-enforcement review of a statute or regulation? Ex: when may a ct hear a request for a declaratory judgment, or when must it decline review?
ii. Poe v. Ullman (1961): dismissed for lack of ripeness, challenge to CT statute banning contraceptives under 14th amend
a) threat of arrest under law is not imminent; w/o actual enforcement by state there is no imminence of harm that would make case ripe for Cx adjudication
iii. abstention doctrine: Ct will decline to hear cases that they think should be heard in state ct first; used in purely state matters less so when there is clear Cx issue (i.e. desegregation)
iv. adequate state grounds: decision would rest on independent, adequate state grounds
C. Mootness: P must present a live controversy at all stages of fed ct litigation. If anything happens while lawsuit is pending to end P’s injury, case is to be dismissed as moot.
a) Ex: criminal D dies during appeal, settlement, or if challenged law is repealed or expires
b) derived from Art III prohibition against Advisory Opinions (though mootness less strict than other doctrines); number of exceptions
ii. Exc: “Wrongs capable of repetition but evading review.” won’t be moot if injury likely to recur
a) Roe v. Wade (1973): pregnant P brought suit attacking TX prohibition on abortion, when case decided she was no longer pregnant. D moved to dismiss for mootness
· Ct: gestation period for pregnancy so short that all such cases will be moot, in cases of pregnancy rule shouldn’t be too rigid as harm would always evade review if doctrine too strict
DeFunis v. Odegaard (1974): white P challenged admission to WA law school on grounds that affirmative action denied him equal protection; received