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Constitutional Law I
Southern Illinois University School of Law
Buys, Cindy G.

CONSTITUTIONAL LAW OUTLINE
I. THE ROLE OF COURTS IN CONSTITUTIONAL INTERPRETATION
CHAPTER 1: JUDICIAL REVIEW AND CONSTITUTIONAL STRUCTURE
A. ORIGINS OF JUDICIAL REVIEW
1. Marbury v. Madison-Establishing Judicial Review-
Articles were weak and did not give Congress (unicameral) much authority over states. The states had to voluntarily submit to authority of National Government (which causes much tumult).
Marbury v. Madison-
Court first held that Marbury had right to the commission he had received because it was a vested legal right he was entitled to.
Court further said mandamus relief was proper b/c the mandamus did not involve the office of the person to whom the writ was directed, rather it involved the nature of the thing to be done. 
Judiciary Act conferred power upon Court to issue writs of mandamus to any person holding office under authority of U.S. 
However, Judiciary Act is giving Court power to issue mandamus (this is not appellate in nature); so Congress is extending Court’s original jurisdiction. Only Constitution may do so.
Court has duty under Constitution to strike down any laws that conflict with it. 
Thus, Marbury has right to relief, but Court cannot give it to him in this action because it is brought under Act which unconstitutionally expands Court’s original jurisdiction.
Arguments in Support of Judicial Review-
Textual:
Words of Constitution become meaningless if not adhered to
Article III grants Courts power to hear cases “arising” under Constitution.
Supremacy clause
Judges take oath to uphold Constitution
Framers’ Intentions (i.e. Federalist papers)
2. Is the Judiciary the Exclusive Authority in Constitutional Interpretation-
Cooper v. Aaron-
Can states disregard Court’s interpretation of the Constitution? No, the Constitution is the Supreme Law of the Land, and the Court’s interpretation is binding.
Uniformity argument-Court ensures that Constitution and its principles are uniformly interpreted throughout nation.
B. THE POWER TO REVIEW STATE COURT JUDGEMNTS
Martin v. Hunter’s Lessee-Could Congress give Sup Ct power to review the judgments of state courts on issues of federal law (under appellate jurisdiction)
Yes. Court’s Article III appellate power arises from case at issue, not conferral by Congress. States are not a separate judicial sovereignty regarding the interpretation of the Constitution. 
State argued that Virginia and US courts were of different sovereignties and thus different jurisdictions.
Jurisdiction over all cases arising under…means “all” cases.
Supremacy clause and need for uniformity of fed laws also dictate this decision.
C. THE ADEQUATE AND INDEPENDENT STATE GROUNDS DOCTRINE
2 Prongs:
State law has to be sufficiently adequate to resolve action
Must be valid under state and fed constitutions
Michigan v. Long-Could Sup Ct review state decision when the state decision rested on adequate and independent state grounds (involved Fourth Amendment question, but lower court also interpreted its own state constitution)
If state court wants to rely on fed precedent without using it as binding precedent, it needs to make a clear statement to that effect to avoid fed review. If truly independent and adequate, Court will not review decision (if primarily based on state law)
Case shows that you can have more rights granted under state constitutions, but states cannot give less rights than those guaranteed by Fed Constitution.
Bush v. Gore
Court basically reviews the FL Sup Cts interpretation of its own state constitution and rules that FL interpreted wrongly.
Says it did not give enough deference to the state legislature (who, pursuant to Art. II has Electoral powers). 
Dissent: Fed courts should defer to state high court’s interpretation of its own state constitution or laws.
D. THE UTILITY OF JUDICIAL REVIEW
Counter-Majoritarian Role-Court acts as a brake upon politically accountable branches of gov’t.
Pro: Legislatures will manifest will of majority, which may be intolerant of politically and socially unpopular minorities
Con: Judges are unelected any thus repudiate a representative democracy
Avoiding Counter-Majoritarian Problem-Representation Reinforcement Theory:
Says judicial review implements majority of will of earlier generations and eliminates barriers to democratic participation.
Stability-Court gives a settled meaning to Constitution
Entrenched Error-Argues against judicial review; says it is too difficult to correct mistaken decisions by the Court.
Erosion of Constitutional Responsibility by the Political Branches-other branches lose sight of constitutional issues b/c they defer to the courts
E. METHODS OF CONSTITUTIONAL INTERPRETATION
Interpretivist-looks only to the text of the Constitution (however, most interpretevists are not this extreme, they will often look to some other form of guidance)
Noninterpretivists-look at contemporary values (says we should not attempt to figure out what the texts of it means, we should apply it to our current sense of justice)
Court relies on noninterpretivist argument; Dissent argues that it must be based on more than understanding of text of Constitution.
Textualist-drawn from a present sense of the words of the provision
Historical-looks at:
Intent of Framers
What did word commonly mean to society at time of framing
Vectors of History-how has word been understood at different points in history
Doctrinal Arguments-precedent, stare decisis (also looks at judicial and academic commentary)
Prudential Arguments-policy based arguments
Cultural Arguments-based on widely shared societal norms
F. THREE-TIERED JUDICIAL REVIEW
Minimal Scrutiny (Rational Basis): Default level of review-
Court presumes gov’t actions are valid
Challenger has burden of proving law is not rationally related to a legitimate gov’t objective.
Intermediate Scrutiny-
When gov’t action comes within some taint of presumptive invalidity but not to the level of strict scrutiny. Gov’t actions are presumed invalid.
Gov’t has burden of proving actual purpose of the act is important and that the statute or action is substantially related to the accomplishment of that actual purpose.
Strict Scrutiny-
Acts are presumed invalid.
Gov’t has burden of proving act is necessary to accomplish a compelling gov’t objective.
CHAPTER 2: DOCTRINES LIMITING THE SCOPE OF JUDICIAL REVIEW
A. DIRECT POLITICAL CONTROLS: AMENDMENT, IMPEACHMENT, AND APPOINTMENT
Amendment-
Very rarely used to overturn Court decision
Two mod

est
Risk that rights of the third party will be diluted or lost unless the claimant is allowed to assert the third party’s claim.
Organizational Standing (another exception to standing requirement)-
Members must have standing to sue on their own
Interests asserted must be germane to organization’s purpose
Neither claim asserted nor relief sought requires the members’ participation in the suit
3. Ripeness and Mootness-
Ripeness-Plaintiff must:
Have already suffered harm;
Be faced with a specific, present, objective harm;                                                     or
Be under threat of specific future harm
Standing deals with “who” should bring the action; ripeness deals with “when” action should be brought
Mootness- Requires that the personal interest that exists at the beginning of the litigation must continue throughout the litigation.
Exception to mootness doctrine:
When an issue is capable of repetition, yet evades review
Ex: pregnancy
Elements of exception:
The life of the controversy is too short to be fully litigated prior to its termination                                                                                      and
There is a reasonable expectation that the P or other class members will be subjected to the same problem again
Friends of the Earth Case-Another environmental group brings action (but here the injury was more definable b/c it involved areas close to their homes that they actually used for recreational purposes)
Standing: They had standing (perhaps there injury was different from that in Lujan b/c of the geographic immediacy of this injury)
Citizen suit was allowable here b/c the statute specified that only injured parties could bring action
Mootness-Just because D ceased activities does not mean it would permanently cease. So, case is not moot and relief is proper.
4. Political Question Doctrine-
Historical
 
In Marbury v. Madison, Marshal foreshadowed this doctrine, that some issues shouldn’t be resolved by the judiciary
 
Six Factors to Determine if Political Question Exists:
 
Textually demonstrable constitutional commitment of the issue to a coordinate political department. Do the words of the constitution give power to either the president or either house in congress; therefore the judiciary should not decide the case?
 
Impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion Lack of judicially discoverable and manageable standard for resolving it
 
If there is only a policy preference, when there is no constitutional question.