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Constitutional Law I
South Texas College of Law Houston
Rhodes, Charles W. "Rocky"

Constitutional Law Rhodes Spring 2017

A constitution constrains the governing authority and limits its power.

Based on idea that people are sovereign and the government must obey the limitations established by the sovereign people on its operations.

Typical limitations include

Separation of Powers
Restricted grants of authority
The guarantee of specified individual rights
An independent judicial branch.

The Problem of Constitutional Interpretation

Six basic methods of legitimate constitutional interpretation/argument:

Textual – arguments that consider the words and language of the Constitution.

What do they mean?

Sometimes the text is vague (and in some instances, this was done intentionally)
Sometimes it is incomplete

Structural – arguments from the organization of the Constitution and the ordering of its provisions.
Historical – arguments from the legal, political, social, economic, and military history of the nation.

What was the original intent of the constitutional drafters?
Consider the events that produced the provision

What was the original understanding of the provision?

Consider the Nation’s ongoing traditions
Originalism vs Traditions

Doctrinal – arguments that refer to the precedential implications of the Supreme Court’s decisions.

Is probably the second most important method behind textual

Prudential – mostly pragmatic; what are the implications?

Costs vs benefits of differing interpretations

Ethical – arguments that rely on moral or ethical commitments reflected in the Constitution.

The strongest ethical arguments are those that can be traced to foundational American national values and ethical commitments, such as “all men are created equal” in the Declaration of Independence.
Rhodes doesn’t really like ethical arguments, especially purely ethical arguments.

Judicial Power under Article III is the power to render judgments in “cases” or “controversies”.

Judicial Review is the process of the judiciary ensuring that other branches of government comply with the Constitution.

A. Article III and the Judicial Power

Article III vests judicial power in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish
Article III then defines the extent of judicial power, stating it extends

“to all cases, in law and equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority

B. Early Limits on Judicial Power

No advisory opinions
It is the duty of each independent branch to abstain from and to oppose encroachments on the either
Chisholm v. Georgia

Held: Georgia could be sued by an individual citizen of another state
This decision was ultimately overturned by The Eleventh Amendment

11th Amendment restricts Article III and basically now says that citizens cannot sue a state for money damages in federal court unless the State consents or federal abrogation of sovereign immunity.

C. Judicial Review

Judicial Review allows a bare majority of unelected Supreme Court Justices, appointed for life by the President with the “Advice and Consent” of the Senate, to negate the determination of the politically accountable branches regarding the constitutionality of a legislative or executive act.

Marbury v. Madison

Marbury was one of the people who didn’t get his commission that was signed by then President John Adams. So he sued to get his commission. He began his suit in the SupCt, asking them to issue a writ of mandamus to force the Jefferson administration to deliver his commission.
Over Arching Issue: Is this the kind of case that SCOTUS has original jurisdiction over?

Marshall held that Section 13 of the Judicial act, which gave the Court the power to issue writs of mandamus, was unconstitutional.

Why? Federal courts cannot be given additional jurisdiction over that which has already been given to it by the constitution. In other words, congress cannot grant the federal courts additional JSD.

Judicial Review was created by Marbury v. Madison.
Marshall says the President can be sued for ministerial duties to an individual (ethical argument), but cannot be sued for political acts (structural arguments).

D. Federal Judicial Review of State Legislation and Judgements

Martin v. Hunter’s Lessee

Supreme Court has the power to review state court judgments resting upon the Constitution or other federal law.

Textual: The Court could not exercise appellate jurisdiction over all cases arising under the Constitution if it could not review state court cases.
Structural: Since the Constitution did not create the inferior federal courts, the constitutional grant of appellate jurisdiction to the Supreme Court had to have been intended to cover state court cases, as otherwise the Supreme Court would have had no appellate jurisdiction at all if Congress had not created lower federal courts.
Prudential: the need for uniformity and potential state court prejudices.
The Court buttressed its holding with historical arguments regarding the original meaning and intent of Article III.

Eustis v. Bolles

The basic concept is that, if the state court would come to the same judgment irrespective of the resolution of the federal issues in the case, the Supreme Court will not review the state court’s holding. The following case illustrates.
It is not enough for Supreme Court review that a federal question was presented in a state court; instead, the federal issue must be material to the state court’s determination of the case. The Supreme Court’s power over state court judgments only extends to correcting incorrect holdings on federal rights, not to correcting incorrect dicta on federal rights

Michigan v. Long

This case addresses the issue when State courts do not make explicit whether they would have reached the same result in the absence of the federal issue.
If the four corners of the state court opinion do not plainly reflect an independent and adequate state ground for the holding, the Court will presume that there are no such grounds and that it has jurisdiction.
The Court pointed out that state courts easily could avoid this result by including a plain statement to rebut the presumption.

E. Congressional Power to Limit Jurisdiction

How far does Congress’ power to make “exceptions and regulations” to the Supreme Court’s appellate jurisdiction extend?

Ex Parte McCardle

Congress can withdraw JSD when another avenue of federal review still exists.

United States v. Klein

Case illustrates that congress can go too far in making “exceptions and regulations” to the SCOTUS’ JSD.
Held that Congress invaded separation of powers by enacting a supposed jurisdictional rule that dictated outcomes by being predicated on the arguments made on the merits.

Justiciability doctrines are judicially created constraints on the federal judicial power in Article III. The doctrines have several purposes, including:

Ensuring that the federal courts will not intrude on the spheres of authority entrusted to the other branches of the federal government
Limiting the federal courts to issues presented in an adversary context.

Because these doctrines implicate the Court’s SMJ, they cannot be waived and must be raised by federal courts sua sponte. Moreover, these doctrines, as part of the SMJ of the federal courts, apply to all cases, not just constitutional ones.

Federal Justiciability doctrines include:

The Prohibition on Advisory Opinions

This is the core doctrine which prevents the federal courts from resolving cases in which there is no concrete controversy between the parties that can be resolved by the judiciary.


Whether the plaintiff as the appropriate personal stake in the litigation as a result of suffering an injury that is fairly traceable to the defendant’s conduct and
Is likely to be redressed by a favorable judicial decree.


Ensures that the suit is not filed too prematurely before a concrete adversary context exists


Prevents the continuation of the lawsuit after the injury has ceased.

Political Question Doctrine

Carves out certain subjects that the federal courts believe are inappropriate for judicial resolution because the decisions should e made by the politically accountable branches of government

A. The Prohibition on Advisory Opinions

Flast v. Cohen explained that this rule against advisory opinions stems from the “implicit policies embodied in Article III,” including separation of powers concerns and the prudential recognition “that such suits often are not pressed before the Court with that clear concreteness provided when a question emerges precisely framed and necessary for decision from a clash of adversary argument exploring every aspect of a multifaceted situation embracing conflicting and demanding interests.

Muskrat v. United States

The United States Supreme Court has jurisdiction only to review cases and controversies between adverse parties, and not to deliver advisory opinions.

Prohibitions against advisory opinions ensures that the case is both

An actual dispute between adverse litigants; and

This prevents the federal judiciary from resolving a formal request for advice from another branch of government
Also prevents federal courts from resolving collusive suits (where one entity controls the entire proceeding against an uninterested but named party) or any other suits where the parties truly do not have adverse interests.

A substantial likelihood that a decision in favor of the claimant will have some effect

This requirement ensures that judicial resolutio

Injuries that are capable of repetition, yet evading review.

The injury is reasonably capable of repetition to the same claimant again, and
The injury is such a short duration that the judicial process will not be complete before the injury has ceased.

Properly certified class actions. When the claims of one or more of the representatives becomes moot, a new class member can be substituted in as the class representative – as long as the case stays alive to at least one member of the class, it’s not moot.
“Sham Mootness” – Situations in which the voluntary cessation of some conduct by the defendant allegedly moots the controversy. In these cases, a defendant’s unilateral voluntary cessation of allegedly unlawful conduct ordinarily does not suffice to moot a case unless there are sufficient assurances that he defendant will not resume the challenged practice. Defendant must show that the alleged unlawful conduct could not reasonably reoccur.
A claim will not be moot if there is some “live” element of the claim remaining, such as a claim for damages; collateral issues may remain even though the main is over

E. Political Question Doctrine (Questions the Court will not answer)

The Basis for the “political question doctrine is that the resolution of certain matters should be left to the political branches rather than the judiciary. Certain executive acts “are only politically examinable.”

The political question doctrine only applies to certain limited subject matters where the Constitution, separation of powers principles, or prudential reasons advice against judicial intervention.

Underlying concerns of the PQ Doctrine:

Reflects respect for the separation of powers, in avoiding decisions expressly or implicitly given by the Constitution to the executive or legislative branches
Separation of powers principles also presuppose that some decisions are inappropriate for the judicial function, because their resolution involves non-judicial discretion or lacks judicially determinable standards.
The PQ doctrine encompasses some prudential concerns, cautioning the judiciary to defer as a matter of policy to avoid either embarrassment to other branches or inconsistent pronouncements on political matters requiring a uniform government response.

Common characteristics of cases involving PQs:

Whether the matter itself has been textually committed by the Constitution – by its words—to another branch to decide. In other words, does the constitution itself say that a particular matter should be decided by either the president or congress or both but not the courts.
A lack of judicially discoverable and manageable standards for resolving it. Courts will not answer questions if the particular questions are beyond the competence or enforcement capability of the judicial branch.
the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion
the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government
an unusual need for unquestioning adherence to a political decision already made
the potentiality of embarrassment from multifarious pronouncements by various departments of one question.

Examples of PQs

Qualifications of Congressional members if limited to age, citizenship, and residency; Issues of impeachment of the president or federal judges; Matters related to foreign policy; military command decisions such as when treaties are effectively terminated; presidential decisions to travel to other countries to meet leaders of other countries; whether the president is appropriately recalling an ambassador or breaking off diplomatic ties; whether it’s appropriate for the president to travel to another country to meet with certain trade groups; putting troops in a certain area; ordering all military leave to be cancelled; questions about when hostilities of war are actually over