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Constitutional Law I
St. Johns University School of Law
Salomone, Rosemary C.

Con Law Outline       1/12/13 5:37 PM
I. Role of the Supreme Court
A. Introduction
B. Origins of the US Constitution
·         The Constitution has the connotation of being an “illegal act”
·         The government under the Articles of Confederation did not have many important powers:
o    A. the power to tax
o    B. an executive/judiciary
o    C. no power to regulate commerce
·         The Anti-Federalists were against the formation of a new Constitution because they feared the gov would have too much power.
C. The Basic Framework
Judicial Review
o    Marbury v Madison: This case makes it very clear that the role of the judiciary is to say what the law is. If two laws conflict with each other, it is the power of the court to decide on the operation of each.
o    Congress cannot add to or diminish in any way the courts original jurisdiction.
o    The court has the power to review acts that are non-discretionary
§  Discretionary: When the official acts in the place of the president.
§  Non-Discretionary: When the official is acting in his legal capacities and has a legal duty – that duty can be enforced by the courts.
o    Defense of Judicial Review:
§  Article 3
§  Analogies to other articles
§  Judges swearing an oath
§  Supremacy clause of article 6 section 2
o    Criticisms of these arguments:
§  Oath: every official takes one
§  Supremacy clause does not ultimately say that judges and courts are the final interpreters of the supreme law
o    Marshall lays down the foundation for other courts in the future to use these sources of interpretation
Federalist Paper No. 78:
o    Anti-majoritarian argument: that judges are not elected by the people, and there is no recourse for removing them if they do not reflect the people’s will. Hamilton argues that the Constitution itself represents the will of the people. Judges must exercise judgment, not will.
Vagueness in the Constitution
o    Interpretation done by judges, they are appointed for life for the purposes of being insulated from society and public opinion/pressures. But judges do get influenced and insert their own will at times.
Problems with Judicial Review
o    The people elect representatives to represent them, but the Courts are the ones who have the final say in the judicial process via judicial review. This power allows the courts to invalidate the acts of Congress and the President, both popularly elected figures that represent the people.
Power to Review State Court Decisions
o    Martin v Hunter’s Lessee: Case gets sent to Supreme Court, court remands case back to state to enter judgment in the favor of the defendant, Virginia rejects saying that the Supreme Court has no power to review state court decisions. The Supreme Court is the arbiter of Constitutional values, not state courts, they are instead subject to the final interpretation of the Supreme Court. He looks to article III which says that the judicial power will extend to all cases! Even cases coming from state courts! He looks at the supremacy clause. Notes that the judges in every state “Shall be bound thereby the laws of the US”.
o    Uniformity of Laws: State laws need to be reviewed to make sure they do not coincide with the laws of the US Gov- we need uniformity! Un-uniform laws do not lead to equal protection under the laws.
o    General Bias in State Courts: Federal claims are usually reacted to negatively in state courts- either because they have a natural alliance with the state gov, or because they are more subject to political pressures since they are not tenured.
Cohen’s v Virginia: Held the same as Lessee but extended it to criminal proceedings and where the state is a party.
Cooper v Aaron: Court established that even though Arkansas was not a party to Brown v Ed decision, that the state was bound by its decision and had to desegregate schools. This is really where the Supreme Court solidified their power as the “Ultimate guardians of the Constitution”- where as in Marbury v Madison the court just established its ability to interpret the law. The court here seemed to be viewing itself as entrusted with a special role of ultimate guardians of the meaning of the Constitution. Decisions of the court are applicable to future cases. (Main point of this case)
D. Sources of Judicial Decisions
These “sources” include the text, representation reinforcement, and natural law. These “sources” are used by judges to interpret the Constitution.
1.                    Text: “Structural arguments” look at the Constitution as the whole document and how the provisions fit together.
2.                    Representation Reinforcement: Judicial intervention is justified in order to makeup for the absence of political remedies for those burdened by legislative action.
3.                    Natural Law: A set of rights that we have just because we are human. This existed before the Constitution.
McCulloch v Maryland
A major move away from the mechanical interpretation of the Constitution as it was in Marbury v Madison and sets the parameters for future Constitution law and is the source of many modern interpretational strategies.
·         Maryland tried to tax the federal branch of the bank.
·         Two issues: Did congress have the power to incorporate a bank? (YES- under the necessary and proper clause) And whether the state of Maryland may, without violating the Constitution, tax the state branch? (No)
·         Although the creation of a bank is not an express power, it is an implied power and is necessary to execute the enumerated powers (power to collect and lay taxes, power to raise and support army) found in the Constitution. Necessary was construed loosely as a way to mean “convenient, useful, or essential”.
·         Maryland cannot tax the government because “the power to tax is the power to destroy”. This is where the argument of Representation Reinforcement comes into play, that by MD taxing the fed, it is taxing people that it does not represent (the nation) harming the people, and thus the judicial intervention is just

·         Ripeness and Mootness
o    Supreme Court should not review a case that is not ready or is now moot
·         Court should be addressing concrete issues, not hypothetical problems
·         Individual autonomy/self-determination: Courts should only rule on those actually injured, P needs to have a personal stake in the outcome
The Standing Doctrine
Constitutional Component
3 Requirements:
·         Injury in fact: concrete and particularized, actual or imminent. Can’t be hypothetical or possible.
·         Causation: causal connection between the injury and conduct complained of
·         Redressability: likely that injury will be redressed by a favorable court decision. You can’t just speculate that if the court decides in your favor that it will change the behavior of the D and your injury will be redressed
·         NOTE: Burden of establishing these elements rests on P
Prudential Component:
·         Adopted by the court in a self-inflicted judicial restraint
·         Not constitutionally driven, can be overruled by court
o    3rd party standing is forbidden
o    Generalized grievances forbidden
§  Injury not particular to you, suffered by population at large
·         P’s injury needs to be within the zone of interest protected by provision at issue
Allen v Wright
Facts: Tax breaks allowed discriminatory private schools to offer cheaper tuition, thus inducing white parents of white students to withdraw their children and to place them in private schools. Parents claimed that it interfered with the black students’ right to attend an integrated school.
·         Holding: Court says that the injury was too abstract, and that redress would not lead to integration, too speculative.
o    Too “attenuated” and not fairly “traceable” to the acts of the IRS.
·         For there to have been standing, the parents would have had to make 3 showings:
o    1. There were enough racially discriminatory private schools receiving tax cuts in P’s communities for withdrawal of those tax cuts to make a difference in public school integration
o    2. That a significant # of schools would, if threatened with loss of the tax cut, change their policies
o    3. That a significant number of parents of children attending private schools would transfer their kids to public schools if the exemption were withdrawn.
·         P’s did not allege any of these.