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Constitutional Law I
South Texas College of Law Houston
Kelso, R. Randall

Constitutional Law
Prof. Kelso

Interpreting the Constitution
1st What does text of Con. Say? Literal purpose
2d What is the context? Related provisions
3d What was the intended balance of federalism
4th History – specific, notes, federalist papers – general

Contemporaneous sources – text, context, history

(1872) – (1937) “Formalist View” These judges believe the con. Is static and only should look at contemporaneous text, context and history at time of ratification.

5th Subsequent legislative and Executive action and social norms
6th Judicial Precedent – Some view only the holding, others view the dicta as well
7th Prudential considerations, would framers think this a good idea? Most criticized view is activist judge who interprets the constitution by what is good social policy for the current time

1937 – “Holmesian View” looks at text, context,
1954 and history as well as subsequent practice by legislature and executive practice.

1789-1872 “Natural Law” view, sometimes known as “common law view” takes into account text, context, history, practice and precedent.

1954-1986 “Instrumentalism view” takes into account text, context, history, precedent, practice AND the constitution should be interpreted as an instrument for positive social change – Activist Judges (liberal or conservative)

Since 1986 – All views are represented on the court with no one view being a majority.

Scalia, Thomas – Formalist
Relinquist – Holmesian
O’Connor, Kennedy, Souter – Natural Law
Ginsburg, Bryer, Stevens, – Moderate Instrumentalists

A. Judicial Review
Marbury v. Madison

Rule: The Supreme Court is the superior interpreter of the constitution.

Issue: Does Mr. Marbury get to be a JP or not? Does Supreme Court have original jurisdiction over writ of mandamus?

Marbury erroneously interprets § 13 of Judicial Act of 1789 as granting the Supreme Court original jurisdiction over writs of mandamus. Article III gives original jurisdiction to cases affecting ambassadors, PM, or state is party otherwise appellate jurisdiction only. Judicial Act is unconstitutional because Congress cannot expand the scope of Supreme Court’s jurisdiction.

Authority for judicial review of state judgments – Martin v. Hunter’s Lesee

Treaty dispute, state of Virginia did not want to follow supreme courts directive, finally supreme court won out.

B. Limits on Federal Judicial Power
1. Interpretive Limits

U.S. v. Emerson

2d Amendment Case, Emerson is not allowed to have gun because he is under a temporary restraining order in divorce case “A well-regulated militia, being necessary to the security of a free state, th


p. 22 Ex Parte McCardle
Congress can limit the jurisdiction of the court.

U.S. v. Klein, 80 US 128

Supreme Court stands up to congress… congress cannot overrule a final decision of Supreme Court.

Justiciability limits

Plant v. Spend Thrift
Can Congress amend a statute in the middle of a case? Yes, but if there is a final decision, it cannot be reopened

“Principles of avoidance” by Justice Brandeis see pg. 29

3. Standing for Federal cases

“Case” or “Controversy” – no difference between the two terms

Act III – Constitutional standing requirement
1. Plaintiff must allege that he has suffered or imminently will suffer an injury.
2. Plaintiff must allege the injury is fairly traceable to defendant’s conduct
3. Plaintiff must allege that a favorable court decision is likely to redress the injury.

Allen v. Wright, 468 U.S. 737
Injuries claimed by plaintiff
1. Fact of government merely breaking law
a. injury because of citizenship court held this “drains meaning” from constitutional requirement of injury in fact