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

John Barrett
Constitutional Law
Spring 2010
The Judicial Function

A. Judicial Power & Judicial Review
1. Marbury – Federal cts have the power to review the constituionality (C-ity) of federal or state laws or executive actions.
a. The C binds the Federal Government.
b. The Ct’s interpretation of the C binds the Fed Gov.
i. Supported by Art III: the jurisdiction of the ct includes all cases arising under the C. The C itself assigns the Ct the job of interpreting it and therefore, the court’s word is the law.
2. Judicial Supremacy (Cooper v. Aaron, 358 U.S. 1 (1958))
a. The 14th amendment makes Brown the supreme law of the land, and thus AR is governed by it. The rulings of the Sup Ct are the Constitution.
b. Questions Raised by Marbury & Cooper:
i. Does judicial supremacy subvert the constitutional design?
À A case resolved is binding on the parties, so the Federal Government has the last word when the Government is a party. Thus in Dredd Scott, the Federal Government didn’t have a duty to obey. Since the parties were individuals.
3. Review of State Ct Judgments (Martin v. Hunter’s Lessee)
a. Section 25 of the judiciary act is constitutional, and thus Sup Ct may exercise appellate jurisdiction over the decisions of St supreme courts.
b. Art VI, the supremacy clause makes the C the supreme law of the land, binding the judges in every state.
c. Art I s. 10, is crowded with provisions which restrain or annul the powers of the states, powers which are transfered to the Federal Government. That the potential for abuse exists does not change this situation.
d. Limitation: Adequate & Independent State Gnds (Michigan v. Long)
i. Issue: Does the appellate power of the sup ct encompass a state ct decision containing issues of both state and federal law?
À States must clearly state that they are deciding the issue on an “adequate and independent state ground.”
Á The state ct’s adjudication on state law is insulated from federal sup ct review.
Ê MI ct says there was an unreasonable search under MI C and 4th amendment.
Ë Although Long was an ambiguous decision by the state ct (didn’t articulate whether it was decided on federal or state gnds), and thus the Sup Ct said it could exercise its appellate jurisdiction if the decision is not clearly based on an adequate and independent st gnd.
ii. NB: The distinction between Michigan and Martin is that the latter wold have inteferred w/ US treaty w/ Britain and therefore, under modern parlance, would not be “independent.”
B. Limits on Judicial Review
1. Political Control
a. Methods
i. Amendment
À 4 times in history an amendment has sucessfully been proposed and ratified in response to Sup Ct decisions.
ii. Appointment
iii. Impeachment – “high crimes and misdemeanors”
b. Exceptions to and Regulation of Supreme Court Appellate Jurisdiction. (Ex Parte McCardle)
i. Congress has the power to repeal appellate jurisdiction of the Sup Ct -> HB the suspension clause implies a preexisting but non-enumerated right to HB. HB is statutorily protected across all States.
ii. Cases & Controversies Specification Art III 2.1
À Sup Ct Jurisdiction
Ê Original III 2.2 –> fixed
Ë Appellate –> subject to change through congressional exception (exceptions clause)
(a) e.g. Diversity Jurisdiction (Art III section 1, all suits between parties from different states)
now diversity is limited by AIC
2. Justiciability Doctrines
a. No Advisory Opinions
i. Separation of Powers – Judiciary interfering with Executive
ii. The case in controversy is central to our adversarial system.
b. Standing
i. Constitutional Core of Standing (Case & Controversy)
À personal, actual or imminent injury in fact
Ê Lujan Test. There must be “injury in fact”–an invasion of a legally-protected interest, which is . . .
(a) concrete and particularized
(b) actual and imminent, not conjectural or hypothetical
Á caused by or fairly traceable to ∆’s action complained of
 redressable by the courts
ii. Prudential Standing Doctrines
À no general grievances
Á no 3rd party claims
 zone of interest
iii. Tax Payer Standing (Flast Era)
À if your only claim is that Congress has exceeded powers enumerated by C, you are not a proper litigant
Ê however, tax payers are proper litigants if the question is one of limits on Congressional power
(a) e.g. Congress puts a tax on the collections of travelling priests
Congress has abilitiy to regulate interstate commerce and the abilitiy to tax, with nothing else, the tax payer has no standing to sue

of the Commerce Power. Lopez (striking down guns in school law).
a. Is the prohibited act an economic activity that might, through repetition elsewhere, substantially affect interstate commerce? Lopez.
b. Lopez Test. Ct will give Cong deference so long as . . .
i) Cong has determined that the activity it seeks to regulate is . . .
(a) part of interstate commerce (in the “channels” of interstate commerce);
(b) OR an instrumentality of interstate commerce;
(c) OR substantially affects interstate commerce (must be an economic activity).
À e.g. Morrison (Ct striking the violence against women act as an attempt to use the commerce clause to regulate non-commercial activity, the violence against women was not substantially related to commerce).
Á NB. Can include an activity that in aggregate substantially affects interstate commerce.
Ê e.g. Gonzales v. Raich (upholding regulation of intrastate cultivation and use of marijuana, even tho it was permitted by the state and not intended for sale, because it was a commodity “capable of sale,” thus adding to the supply side of the problem).
Ë e.g. Wickard (upholding regulation of farmer’s small input to demand of wheat, because, tho trivial by itself, others similarliy situated would be non-trivial in aggregate).
ii) AND the determination is rational;
iii) AND the chosen means are reasonably adapted to a legitimate end.
c. Effect. Lopez is in effect aberrational and anomalous, as it is easily circumvented by better draftsmanship and use of federal powers other than the commerce clause.
i) Moreover, b/c cts will construct a statute to avoid any C issues if possible, Lopez rarely comes into play.
(a) e.g. Jones v. US (Upholding criminal arson law that proscribed burning of bldgs affecting interstate commerce by limiting reading to bldgs that were actually