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Constitutional Law I
South Texas College of Law Houston
Treece, T. Gerald

Overview:  Nothing in the Constitution expressly gives the Sup. Ct. power to rule on the constitutionality of Acts of Congress or state statutes nor the power to review decisions of state courts.
Article III Judges: federal district judges, federal circuit judges, and the Sup. Ct. justices
Review of Acts of Congress
Marbury v. Madison—Marbury was supposed to be appointed justice but President put a halt to his commission
                                          i.    Issue: Ct. addressed whether or not the Ct. could order the president to do something through a writ of mandamus
                                        ii.    Holding—The Supreme Court is empowered to review Acts of Congress and void or nullify those that it finds to be foul to the Constitution. Though this power does not expressly come from the constitution.
                                       iii.    Quote:
1.     It is emphatically the province and duty of the judicial department to say what the law is.  The court is the final arbiter of the law of the land. 
                                       iv.    What the Holding Did:
1.     Court can tell Congress that some of their laws/statutes are Unconstitutional
2.     Court can overrule President in law related matters, not political ones.
                                         v.    What does judicial review mean?
1.     In Marbury, it meant the power of the Sup. Ct. to review and nullify acts of the President and Congress.
2.     It does not come from the wording of the Const, but it is accepted by the Const. and ok’d by the people
                                       vi.    By stripping the court’s power or ability to hear the case in Marbury, the Court created Judicial Review
                                      vii.    Article 13 of the Fed judicial act of 1789 is nullified by SC because congress expanded the judicial power of the Supreme Court beyond what the constitution grants. It would have taken a constitutional amendment to do so.
Marshall’s reasoning was that 1. The oath of office supports it, Supremacy clause(art. 2 section 4) allows it, and Marshall’s pure logic about who(the SC) interprets the constitution for the people to keep congress from exceeding it. This is the very essence of judicial duty.
Authority of Supreme Court Interpretation
                                          i.    Cooper v. Aaron—State courts (AK Governor and Legislature refused to follow Sup. Ct’s holding in Brown; refusing to desegregate the public schools in Little Rock.
                                        ii.    Holding—State authorities are bound by the United States Sup. Ct.’s interpretation of the federal Constitution.
                                       iii.    Article VI, sec. 2: Supremacy Clause
1.     Constitution is the “supreme law of the land”
                                       iv.    Reasons Behind Holding:
1.     A state official who fights against the Constitution violates his oath to support it. 
2.     If the states could annul the constitutional decisions of this Court, the Constitution itself would be rendered impotent.
3.     Art VI Sec. 2: Supremacy Clause; federal action must prevail over inconsistent state action.
                                         v.    Quote:
1.     If the legislatures of the several states may, at will annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the Constitution itself becomes a solemn mockery.
2.     “We are not final b/c we are right but we are right b/c we are final”
                                       vi.    All 9 Justices signed the opinion
Lord Chief Justice Coke’s Opinion (note 4 after cooper v. Aaron) it is necessary for the judiciary to be able to nullify unlawful acts of the legislature.
Federalist Papers, No. 78
Alexander Hamilton stated that:
                                          i.    The interpretation of the laws is the proper and peculiar province of the courts.
                                        ii.    The judges must regard Constitution as fundamental law and must therefore be responsible to ascertain its meaning.
                                       iii.    The intent of the people as expressed in the Constitution must prevail over the intent of their agents.
                                       iv.    Trust judges with extra power because they are not elected, don’t control money/military, and they are appointed for life.
Judiciary Act of 1789
Created lower courts as permitted by the Constitution
§24: Sup Ct. was clearly granted to authority to review state court decisions where appropriate
Supreme Court Review of State Court Decisions
Appellate Jurisdiction
                                          i.    Hunter’s Lessee—Martin wanted his land back when it was given by the State of VA to Hunter.  Sup. Ct. ruled in favor of Martin but VA court refused to comply.
1.     Holding—The Sup. Ct. has appellate jurisdiction over the highest state courts on issues involving the federal Constitution, laws, and treaties.
2.     Appellate Jurisdiction
a.     Appellate jurisdiction is given by the Constitution to the Supreme Court in all cases where it does not have original jurisdiction, subject to congressional regulations(this limits the power of judicial review).
3.     Judicial Power Includes…
a.     All cases involving the Constitution, laws, and treaties of the United States’
4.     Necessary for Uniformity of Decisions throughout whole United States
5.     Judicial review applies to the states if the violation implicates a federal statute or the U.S. Constitution because of Article VI, sec. 2 – the Supremacy Clause
TEST QUESTION on Judicial Review:
Based on Marbury, Hunter’s Lessee¸ Cooper and U.S. v. Nixon
                                          i.    What is Judicial Review?
1.     A majority of this court can do what they want to do
2.     It is equal to Judicial Nullification-strike it out of existance
a.     To erase them from existence if they are in conflict with the Constitution
3.     “Not because they are right but because they are final”
                                        ii.    Is this principle justified under the Constitution?
1.     We see it today in Griswold just how powerful it really is
2.     Thinks that the American people want to allow the COURT to have this power
                                       iii.    Is it justified in the Constitution itself in either Marbury or Hunter??Yes, Marshall
1.     Supremacy Clause
2.     Oath of Office that individuals take
                                       iv.    If it is not supported by the Constitution, what is it supported by?
1.     Look at the arguments—someone must make the call; should be the Federal gov
2.     Nixon: Sup. Ct. is the final arbiter—this is not necessarily true, unless we want it to be
                                         v.    Limitations of judicial review-
1.     Exeptions Cluase-Art. 3.2 congress may limit the power of appellate jurisdiction of the supreme court through regulations and statutes-ExParte McCardle.
2.     Winner’s rule- SC sets the floor, but state courts set the ceiling and may expand rights under Independent State Grounds(respect state sovereignty). Michigan v. Long
3.     Loser’s Rule- Even if it is a Hot button, if they mess up procedurally they are out.
4.     11th amendment- can’t sue a state in federal court to get money from that state’s treasury, but you can sue officials even if you are getting money from treasury.(Ex Parte Young) Exception w/ 14th amendment in Fitzpatrick.
                                          i.    All controversies between 2 or more states
Original/Not Exclusive
                                          i.    Over the other areas spe

ppeals overturns, only way the SC will only review if there’s an independent state statute or constitution in place that covered the case; will not review any cases that have been decided on independent state grounds that support the judgment (no matter how erroneous it may be under fed law); SC can’t tell state courts how to interpret State laws or constitutions.
Adoption of 3 Rules:  When State Court Decision…
                                          i.    (1) Appears to Rest on Federal Law= Bound by Federal Law
1.     If the state court decision appears to rest on federal law, and the adequacy and independence of state law is not clear from face then it’s bound by federal law
a.     i.e. Federal Court + US S Ct can review
                                        ii.    (2) Rely on Federal Laws as Persuasive= Must Indicate in Opinion Not Bound
1.     If the state court relies on federal laws as persuasive, but not binding, it has to indicate in the opinion that it’s not compelled by federal law (or else Fed. Ct. can review it)
                                       iii.    (3) Rely on Federal Law but Same Decision under State Law= Must Indicate in Opinion Not Federal Bound
1.     If court relies on federal law but would have reached the same decision under state law then must give clear statement that the result is alternatively based on bona fide separate and independent state law.  (or else Fed. Ct. can review it.)
Winners v. Losers Rule
                                          i.    Big Winner’s Rule – challenging on both federal, and adequate independent state grounds, and win on both; US S Ct will not hear your case
1.     If the State’s highest court that could hear the case rests the judgment on a substantive state ground (the statute or state constitution giving the citizen a way to win, notwithstanding the constitutional claim), the S. Ct. will not review the case.
2.     Hypo: ex) TCCA says citizen wins under the 1st Am. of the Const and on TX Const grounds. TX wants to take it to the SC, but citizen has won big on both the Fed. and the State Const. SC will not review, even if analysis is wrong as to why citizen wins based on the Const. (b/c they had adeq grounds to win under State)
a.     Think: US Const grants broader rights than that of a State const (more protective of its citizens), if you win under State, you’re definitely going to win under Fed Const.
                                        ii.    Big Loser’s Rule – lose on procedural issue and court dismisses on all grounds; you not only lose on federal or const law, but you lose on procedural as well.
1.     i.e. if the citizen loses on the constitutional claim and also fails to properly observe the state’s rule of procedure of evidence;
a.     if it’s not a procedural issue—you can take it up
2.     SC won’t hear a case b/c of the additional procedural flaws—this procedural trap is another form of independent state grounds. 
3.     Ex) NAACP case; said that every issue set out in the appellate brief needed to be in a #d paragraph; this is case where SC said “enough”; when the procedural rules are preventing protection of 1st Am Rights, it will not stand. (procedural rules themselves are being used to deny DP).