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Constitutional Law I
St. Johns University School of Law
Barrett, John Q.


Professor Barrett – Spring 2014- St. Johns Law


A. Judicial Power and Review

Judicial Review: process by which the courts decide whether actions of government officials comply with the constitution (power SC has to review constitutional issues)

– SC power to declare something unconstitutional; courts issue their opinion on the const of legislation

1. The Establishment of Judicial Review:

· Marbury v. Madison: political struggle between Adams and Federalists and his successor Jefferson and Republicans. Adams appointed new judges just before leaving office; commissions were signed but not yet delivered. They were never delivered so Marbury, who was supposed to get his commission, never did so he sought writ of mandamus.

RULE: If Supreme Court identified a conflict between a constitutional provision and a congressional statute, the court has the authority and the duty to declare the statute unconstitutional and to refuse to enforce it. It is the duty of the judicial department to say what the law is.

a. Article III: defines the judicial power

Sec 2 clause 1: the judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the US, and treaties made

– Power of judicial review from this grant of to federal courts of the power to decide cases arising under the constitution

Sec 2 clause 2: S.C shall have original Jurisdiction when…. Case involves ambassadors, other public ministers/councils, and those in which state shall be a party (Congress CANNOT add this to the list)

· In all other cases previously mentioned, S.C. has appellate jurisdiction and under regulations which Congress can make (congress CAN add to the list here)

b. Judges Oath: Article VI requires judges to take an oath to support the constitution: would violate oath if they upheld unconstitutional laws

B. Judicial Supremacy

Judicial Supremacy: SC has final say on constitutional issues; SC issues ruling and then all other branches are forced to adopt the courts view

1. Supremacy Clause: (Article VI Clause 2) aimed at state governments and declares that state judges must apply the constitution and the laws of the US which shall be made in pursuance as the supreme law of the land; since state judges seem to be expected to decide if federal laws violate constitution, S.C also must be expected to exercise same power in its appellate capacity

a. Supreme Court, when it is exercising its power of judicial review, has the final word on something arising from the constitution

· Cooper v. Aaron: Arkansas officials claimed they were not bound by a lower federal court desegregation order. They kept their schools segregated even after Brown v. Board decision.

RULE: the SCs interpretation of the constitution is binding on state legislatures

2. Power to Review State Court Judgments

a. When SC reviews judgment of a state court, it is exercising appellate jurisdiction

b. Judiciary Act of 1789 gave SC power to review final decisions of the highest state court on matters of federal law

i. SC may determine whether state court has reached a decision that is not in conformity with the constitution, but it may NOT review state court decisions that merely adjudicate questions of state law

· Martin v. Hunter’s Lessee

Whether a VA statute conflicted with a federal treaty

RULE: Court could review the constitutionality of a decision by a state’s highest court

3. Adequate and Independent State Grounds

SC may exercise only the jurisdiction given to it under Article III and as validly limited by Congress, but what happens when a state court de cides a case by applying state law only?

a. SC will not review judgments of state courts that rest on adequate and independent state grounds. If the same result would be reached even had the state court made a different decision on the federal question, the SC may not decide the case. This would be in effect, an advisory opinion.

i. The mere fact that a federal question is involved is not sufficient to entitle SC to review it

ii. Violations of state and federal constitutions: If a state action violates the same clause of both state and federal constitutions (i.e the Equal Protection Clause of each), the state court decision may or may not be based on an independent state ground. If the court is saying, this state action would violate our state constitution whether or not it violated the federal constitution, that is independent. If a state court is saying, based on our reading of the constitutional provision, which we think has the same meaning under both the state and federal constitutions, this state action violates both constitutions, and that is not independent, so the SC may review the state court decision.

b. Adequate and Independent State Grounds Doctrine: requires assessment of the adequacy of the state basis for decision and its independence from federal law. The state basis must be both adequate and independent.

i. SC will NOT review state court decision otherwise falling within its appellate jurisdiction if that state decision rests upon an independent and adequate state ground

· Michigan v. Long

Case allowed for searches of car compartments due a stop with reasonable suspicion.

RULE: Narrowed the extent of adequate and independent state grounds, allowing SC to review state SC decisions unless they explicitly appeal to state law

4. Tiered Review & Preferred Claim/Review limited to decisions of the highest state court: Federal statutes limit SC review to decisions of the highest state court available. This does not mean that the top ranking state court must have ruled on the merits of the case in order for the SC to review it. All that is required is that the case be heard by the highest state court AVAILABLE to the petitioner.

5. -Ex. State trial court finds a particular state statute to be valid under the federal Equal Protection Clause. An intermediate appellate court in the state affirms the highest state court refuses to hear an appeal from the affirmance. The SC may hear this case, because the intermediate appellate court was the highest court available to the petitioner.

6. Federal Judicial Power: Article III, Section 2 Sets out the federal judicial power. This includes, among other things, (a) cases arising under the Constitution or the laws of the US (cases posing a federal question); (b) cases of admiralty; (c) cases between two or more states; (d) cases between citizens of different states; and (e) cases between a state or its citizens and a foreign country or foreign citizen. This does not include cases where both parties are citizens (residents) of the same state, and no FQ is raised.

The Three Types of Judicial Scrutiny

a. Minimal Scrutiny. Government action is presumed valid unless there is some apparent reason to doubt its validity. It will be struck down only if the CHALLENGER/INDIVIDUAL can prove that the action is not rationally related to a legitimate state purpose, or unconstitutional. (mere rationality). Almost always, the governmental action will be upheld.

-Legitimate State Objective: practically any type of health, safety, or general welfare goal will be found to be legitimate

-Rational Relation: There must be a minimally rational relation between the means chosen by the government and the state objective. Only if the government has acted in a completely arbitrary and irrational way will the rational link between the means and end not be found.

-When to use:

1. Dormant commerce clause: Used to determine whether a state regulation that affects interstate commerce violates the DCC. The state regulation has to pursue a legitimate state end, and be rationally related to that end. There is a second test where the

of the court

i. Two modes of Amendment specified in Article V: proposed by either a 2/3 vote of each house of congress or by a constitutional convention called by congress. In either case, a proposed amendment must be ratified by ¾ of the state legislatures or state ratification convention

b. Appointment: new members of the court may be appointed with hope/expectation that they will vote to overrule specific past decisions

i. an appointment to the court consists of a presidential nomination followed by senatorial confirmation of appointment (Article II, Sec 2)

c. Impeachment: any federal judge may be impeached, convicted, and removed from office

i. Article II Sec 4: provides for impeachment

Art I, sec 2 gives House sole power of impeachment

Art I, sec 3, gives Senate (removal) sole power to try all impeachments [to remove if 2/3 of senators concur in Houses impeachment]

2. Congressional Power

a. Article III gives Congress considerable, but not unlimited discretion to control jurisdiction of the federal courts: original jurisdiction is limited to cases between states and those involving diplomats, and appellate jurisdiction in all other cases within Art III with such exceptions as congress shall make. Congress can decide what the SC court may hear, so long as it does not expand the SC’s jrx beyond the federal judicial power.

b. Power to Establish Federal Courts

i. Art III assigns judicial power of the US to one SC and such inferior courts as Congress may establish – [Thus, Congress may limit both the SC appellate jurisdiction and the jurisdiction of the inferior federal courts]

ii. Lower Courts: Congress may decide what lower federal courts there should be and what they should hear. The outer bound is that Congress cannot allow the federal courts to hear a case that is not within the federal judicial power.

-Ex. Congress may cut back the jrx of the lower federal courts by constitutionally eliminating diversity jrx, even though such suits are clearly listed as being within federal judicial power.

-Ex. However, Congress could not give the lower federal courts jurisdiction over cases between 2 citizens of the same state, where no federal issue is posed. This would go beyond the federal jrx as recited in the constitution.

c. Exceptions and Regulations of Supreme Court Appellate Jurisdiction

· Ex Parte McCardle McCardle is an editor charged with publishing defamatory articles. Files writ seeking habeas corpus: (judicial mandate ordering inmate to be brought to the court to see if the person was lawfully held or not). Habeas corpus statutes give courts jurisdiction over habeas actions. Congress passed a jurisdiction stripping statute [repealed habeas corpus statute] so now the court lacks jurisdiction

Congress introduced this legislation to take/strip the court of appellate jurisdiction: it is a clear power of the Congress vested to it in the Const Article III

• “such exception as Congress may make”

RULE: The SC has confirmed that Congress does indeed have at least some power to control the boundaries of the SCs appellate jurisdiction. It is constitutional.