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

Prof. Salomone

The major areas of Constitutional Law:

Judicial Review-A federal court may only hear a case if it involves a “case or controversy” under Art III of the Constitution.
Separation of Powers-A S of P question involves the relationship between or among branches of the federal government.
Federalism-A federalism question involves the relationship between the federal government and the states.
Individual Rights-These questions typically involve a gov’t, fed or state, taking some action which abridges the right of an individual. An analysis should include the following steps: (i) Determine which gov’t is acting, (ii) identify the interest that has been abridged, (iii) place the abridged interest in the Con, (iv) ascribe constitutional weight to the interest abridged, and (v) set the appropriate level of scrutiny.


Article III, Section 1 provides the basis for and the scope of federal judicial power: “The judicial power of the US shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish…” Note: Establishes S.Ct. not the whole system (thru subsequent Congressional acts).
Article III, Section 2 “The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the US, and treaties made, or which shall be made, under their authority…” Note: Lays out judicial power-all cases under Constitution-language that grants judiciary cases under Constitution textual support for judicial review, but no clear statement.
· Original Jurisdiction: The Supreme Court has original jurisdiction “in all cases affecting ambassadors, other public ministers and consuls, and in those in which a State shall be a party…”
o Under present statutes, the S.Ct. has exclusive original jurisd only when a state sues a state; in all other cases involving the S.Ct’s original jurisd, Congress, under its power to ordain and establish inferior federal courts, has conferred concurrent original jurisd on fed dist cts. The original jurisd of the S.Ct can neither be expanded nor diminished by statute.
o Note: How Marshall relies on for ultimate decision in M v. M-no original jurisd for writ of mandamus.
· Appellate Jurisdiction: In all cases other than those listed under its Art III original jurisd, the S.Ct has appellate jurisd, with such exceptions and regulations as Congress shall make.
o Under this grant of app jurisd, the Court has app jurisd over all cases coming from lower fed cts, and from cases coming from state courts, as long as state court cases involve a fed ques.

I. Judicial Review: The Bases and Implications of Marbury v. Madison
Who interprets the Constitution? The executive branch must be mindful when enforcing the law-enforcing & interpreting. The legislature in enacting leg is interpreting as well. HWR, in a number of cases in the early 1800’s, the S.Ct established for the judicial branch of the fed gvmt the power to review acts of other branches of gvmt, as well as decision of state cts. The Court declared that the judiciary is the ultimate arbiter of constitutional powers and rights.

Marbury v. Madison (1803)
Establishes the authority of the Supreme Court to interpret the Constitution. It is the foundation of judicial review of congressional laws.
Note: Marshall establishes judicial review in a very crafty way. Lost the smaller battle-no jurisd for writ of mandamus, but wins the bigger battle-creates broad power of S.Ct to interpret the Constitution. There are other ways he could have gone.
Marshall’s ingenuity: He attacked the constitutionality of § 13 of the Judiciary Act of 1789, under which Marbury sought the mandamus. By this tactic he could establish the S. Ct’s authority to review the constitutionality of a laws enacted by Congress, drop Marshall diplomatically and censure Jefferson. To do this, hwr, he had to reverse the order of the issues. Instead of deciding jurisd first, which would have defeated his purpose, for it would have meant the dismissal of the case without the need for further comment, he considered the merits of Marbury’s case instead.
Issues: (i) Has the applicant the right to the commission he demands? Yes, Marbury had a vested right in the office, his appointment was non-revocable and protected by the laws of the country; (ii) If he has a right, and that right has been violated, do the laws of the country afford him a remedy? Yes, Marbury has a right to the commission, a refusal to deliver was a plain violation of that right, for which the laws of his country afford him a remedy. Marshall makes it clear that delivery was a legally mandated act and not political question of an executive officer performing a duty in which there was discretion; (iii) If they do afford him a remedy, is it a mandamus issuing from this Court? NO, a mandamus was the right remedy, but it could not be issued by the Court.
š§ 13 of the Judiciary Act of 1789 granted the Court the authority to issue writs of mandamus. Marshall reasoned that the Constitution conferred original and appellate jurisd on the S. Ct and its original jurisd only extended to ambassadors, etc and to those in which a state was a party. Congress, by law, could only grant appellate jurisd to the Court. To Marshall the issuance of a writ of mandamus was the same in effect as an original action and therefore belonged to original jurisd and \§ 13 was unconstitutional. Tool of construction-plain meaning b/c the Constitution enumerates original jurisd, it is a finite list & clearly defined so Congress can’t try to expand.
šBy this maneuver, Marshall could develop his main point that the SCt had the authority to declare laws of Congress invalid when in violation of the Consit. He expounded the doctrine of judicial review: It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

Critics of Marbury stress that Marshall’s opinion lacks reference to authoritative sources for such a power. Marshall relied on general principles and the text of the Constitution.

The Federalist: Strongest support for judicial review, more explicit than anything found in the Constitutional Convention debates. The judiciary will always be the “least dangerous” to the Constitution-least capacity to injure: The judiciary has no influence over either the sword or the purse, no direction either of the strength or the wealth of society, and can take no active resolution whatever. It may truly be said to have neither force, nor will, but merely judgment…The interpretation of the laws is the proper and peculiar province of the courts. (A. Hamilton, #78).

Hand-Wechsler Debate: Hand- justification based on practical need, not from structure and text of Constitution. Pragmatic and necessary, there has to be some organ of gvmt that would keep afloat when all else failed. Weschsler- relying on language of Con, no discretion to decline to adjudicate, favors application of neutral principles.

Countermajoritarian aspects: The most obvious criticism of judicial review as undemocratic points to the fact that, in declaring a law unconstitutional, an unelected court thwarts enforcement of a law that presumably reflects the will of the people.
Ø Capacity? Does the court have the capacity to really examine far reaching policy implications? Prisoner of info brought by the parties, lacks resources to examine policy based questions.
Ø Will of the people? Political arg against activist judiciary. Situation in which legislative atrophy- why bother making laws if the cts are going to handle it anyway. If cts are too activist the leg will leave alone, afraid to take the heat.


1. Cooper v. Aaron (1958) (Are Court interpretations “the supreme law of the land”?) [p. 24] The Court rejects an attempt by state officials to nullify Brown v. Bd of Ed: Judicial support for a view widely held by the public, that the Court is the ultimate or supreme interpreter of the Con. The Court unanimously reaffirmed Brown in the face of massive resistance for the Gov and leg of Arkansas. p’s claiming not bound by the decision b/c the state had not been a party to the case. The Court’s response went far in dictum about the Ct’s interpretative authority. The Ct looks to Marbury (“the province and duty of the judicial dept to say what the law is à the basic principle that the fed ju

olitical question’s presence.
Ø Issues to look for in the area: (i) foreign relations (whether or not a treaty has been terminated), (ii) dates and duration of military activities, and (iii) validity of enactments (ratification periods for proposed Am’s to the Con).

Powell v. McCormack (1969) (Congressional seating decisions) [p. 37]

The Court finds the controversy justiciable-Congress may not add qualifications to those listed in the Con. Congress had refused a seat in the House even though p met all formal requirements of the Con (p allegedly wrongfully diverted funds and lied to a committee).
q Textual commitment arg- Con sets forth that Congress is the judge of qualifications of own members. The Court finds that they may only judge qualifications set forth in the Con.
q Embarrassing confrontation arg- Sys of gvmt requires that the fed cts occasionally interpret the Con in a manner at variance with the construction given by another branch. The alleged conflict that may be caused may not justify the cts’ avoiding their constit’l responsibility.
q p seeks a determination that the House is without power to exclude him, which requires an interpretation of the Con-a determination for which there are clearly judicially manageable standard.
q And the decision will not result in multifarious pronouncements by various departments on one question. For it is the responsibility of the Court to act as the ultimate arbiter of the Con (Marbury).

Goldwater v. Carter (1979) (Treaty abrogation and executive powers over foreign affairs)

The issue of whether the Pres has the power to unilaterally terminate a treaty is a political ques. The Con, while providing for the creation of treaties by the President, with the advice and consent of the Senate, is silent as to the termination of treaties. The Court held that it is a nonjusticiable pol ques b/c it involved a dispute about the extent of Pres authority in foreign affairs and was best left for resolution by the Exec and Leg branches of gvmt.

7. Nixon (Walter) v. US (1993) (Procedures for impeachment) [Rehnquist, p. 39] The Con gives the Senate the power to try impeachments. The Court has ruled that the Con gives to the Senate the exclusive power to determine the exact procedures it will use in impeachment cases.
q The Court held that the Constitution gives the Senate, rather than the courts, the power to decide rules for an impeachment trial.
q Textual commitment argument
q Lack of finality and the difficulty of fashioning relief

8. Bush v. Gore (2000) (Political questions and the presidential election process) [p. 45] The Court held that the recounts ordered by the Fla SCt, because conducted under nonuniform standards, were unconstitutional under the EP clause of the 14 Am.

B. Case or Controversy Requirements: Advisory Opinions, Standing, Mootness and Ripeness
To qualify as a case or controversy, under Art III, § 2, cl. 1, a matter must be concrete and non-hypothetical, as affirmed by longstanding federal practice barring issuance of merely advisory opinions. It must also involve parties claiming an injury personal and concrete to them, as expressed in the Court’s elaborately developed law of standing. Finally it must arise neither too late or too soon for judicial resolution, as made clear in the Ct’s doctrines of mootness and ripeness.

Advisory opinions are not within the Art III definition of a ‘case or controversy’ so fed cts may not issue such opinions.