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

Tips- pay attention to lectures, take detailed notes, Professor Salomone tests on what she says. She is big on women and children’s issues. Site the cases on exams whenever you can. Do her past exams at home. 
I. Role of Courts in Constitutional Interpretation
State constitutions are documents of planning power, and preceded the US constitution          
Presumption is that power resides in the people and that they invested this power to 3 branches
Any power in any branch has to be derived from a cl in the constitution
Bill of rights- deal was if it was included, large states would ratify the constitution
Judicial Review
Art III sec2 cl2- In all cases affecting Ambassadors, public ministers, consuls, & in which state is party, S ct has original jur, in all others S Ct has app Jur, w such exceptions & under regulations as congress shall make
Sec 13 of 1789 Jud act “S ct has app jur from cir cts & cts of several states, & has power to issue…writs of mandamus, to any cts appointed, or persons holding office, under the authority of the US”
Marbury v. Madison (1803) 
1 Appt by executive gave vested right in office, appt was non-revocable & protected by country’s laws
2 Laws of country afforded remedy- if you have a right=implicit remedy. Nature of transaction wasn’t pol Q
3 A mandamus was right remedy, but it couldn’t be issued by the Ct. 
   -Const conferred origi & app jur on S.Ct. Congress, by law, could only grant appellate jur- plain meaning
   -Sec 13 Jud Act of 1789 granted Ct authority to issue writs of M on Fed officer = original jurisdiction action
Court declares its power to: Review actions of executive; Interpret laws of congress; & Interpret constitution
-Textual & structural arguments- necessary inference from constitution, inference from powers it gives to S ct
>Judicial review has come to mean- S ct has final say
Cooper v Arron- court resurrects Marbury
Racial separation is inherently not equal according to equal protection clause
-duty and right of S. Ct to interpret constitution and S Ct has final say on what law is
-Ct’s interpretation of the 14th Am is binding on the states even if they were not a party to the suit
>Ppl wouldnt have consistent interpretation of const if there are conflicting interpretations w/n branches/states
>it would be logical to have 1 branch of gov that has the final say
 -when contender is a state, S Ct has exclusive, final say, but this conclusion is less firm when congress/pres
Power to Review State Ct judgments
Martin v Hunter’s lease–VA sold British loyalist’s property to Hunter, VA said US treaty didnt cover case
S ct has authority to overturn decision of state’s highest ct
>Art III grants S ct jur in all cases that deal w Fed Q- (if no inferior cts, then S Ct would have nothing to act on)
>States are bound by constitution, no state sovereignty over const law
>Need uniformity in fed law- S CT overseeing state judges- then state cts aren’t really independent
      -Uniformity always better? States should go their own way- Raises federalist concerns
         >Federal Cts are too hospitable to Fed rights against state rights
>Need to protect from state bias for state interests
   -local political forces are less likely to influence Fed judges dont worry about re-election
        >creates possibility of abuse of power, but state judges may also abuse pwr, not a good enough reason
    *Cohen v Va- If federal question is present, Ct may review civil & criminal state cases even if state is a party
>Adequate and Independent State Grounds
Michigan v Long- Search violated 4th AM, said S Ct doesn’t have jurisdiction over case
Decision relied on 4th AM, so it was not independent
-If case deals w/ state & fed issues, state ct must provide plain statement it relied solely on state law
-Has to be a clear statement that Fed cases are used as guidance and do not compel the decision
S ct can review case if no plain statement OR decision is not independent OR is inadequate
    >if state ct decides law/practice is invalid under state law, no need to do Fed law (Fed cts can’t hear appeal)
    >if state ct decides it is valid under state law, has to review US law (Cts may hear appeal)
    >if fed ruling will not change basis for state decision- Fed ct cant review b/c it would be advisory opinion
*State ct can interpret free speech cl under its own state const more broadly than Fed Ct, but not more narrowly
 -To limit the advisory affect of Fed Cts- make clear statement that ct is relying on state law
Bush v Gore- Turned on EP cl invoked by Bush- state high ct violated const by misinterpreting state legislation
FL SC – allowed a manual recount & gave 7 day extension to voters
>CT- Art II – gives states authority to develop their own election rules, But FL went beyond it, violating const
>Concur- fed const issue- Reaffirms S Ct authority to determine if permissible for FLSC to grant extension
 -S Ct can oversee interpretation of state law by the highest state court
 -Presidential election is national issue & Legislature got authority to adopt state legislation though fed const
>Dissent – State has their own interest in this, Must honor the FL state const
>Dissent – Federalism requires fed gov to defer to state’s highest ct in interpreting its own state laws
Utility of Judicial Review
>Countermajoritarian role- protection of political minorities b/c legislature represents majority
>Const is a living document (changed), const is broad ‘eq prot’ “due pro” -provides ct w/ overseeing authority
>Stability-can’t have different branches interpreting constitution in different ways
Counterargument to judicial review
>Anti-democratic-undermines democracy through judicial activism, Fed judges unaccountable to ppl, unelected
>Cts may not have the capacity to foresee implications of decisions
>Difficult to correct Fed decisions-impeachment, amendment, wait for court to overturn/membership to change
>Original intent speculates on why framers wrote what they did – All framers didn’t have same intent
   -Do we want to adhere to their vision of country? -Do they represent views of “the people” (slaves & women)
>Constitution is evolving document -Judges put in their own political preferences into what society should be
Constitutional Interpretation
Calder v bull- Distinction b/n natural law and written law. Natural law predates written document
 -Prior to social contract, some law exists that separates humans from animals
      >Many views on what natural law entails, largely faith based, no consensus
>Textual interpretation- Direct meaning. Inference from words used & omitted in Const
    -If unclear, may need to go beyond it- Non-interpretivists assert cts not limited to text- judges’ opinions?
>Doctrinal-case precedent, stare decisis
>Structural arguments- federalism
>Prudential argument- wise for ct to hear or not (political reasons usually on sep of powers)
>Cultural- what is consensus regarding cultural issues, are there widely shared norms that laws should reflect
>Historical arguments- Intent of framers is difficult to guess, each 1 may have had diff intent.
 -Original meaning of text- Words/norms change in society –i.e. cruel and unusual punishment
 -Vectors of history- attach meaning to words and consider change
Levels of Review
>Highest is strict scrutiny- The act has to be necessary to achieve a compelling governmental interest 
    -Needs a tight fit b/n means & ends; Have to be no less discriminatory means available to achieve that end
   -The presumption is on invalidity & Burden is on the gov
>Intermediate based scrutiny- Gov act has to be substantially related to an important governmental interest
    -Presumption is on invalidity & Burden is on the gov
>Lowest level is mere rationality- Act has to rationally related to a legitimate governmental interest
   -Presumption is that gov act is constitutional & Burden of proof is on the P
*Just apply a sliding scale not one rigid standard- balance interests of individual v gov – not done
Political controls on CT
Congress can take away jurisdiction away appellate jur. issues from S Ct or lower fed cts
 -Can result in regional/state variation on issue- i.e. no uniformity of const rights- abortion, state can go haywire
States can interpret certain const issues too;
Cong can make amendments/impeach & President can appoint judges
Congress and Supreme Court Jurisdiction
Art III, Sec 1- Judicial power of US shall be vested in 1 S Ct, & in inferior cts Congress may ordain & establish
Art III, Sec 2- Jud pwr shall extend to all cases arising under Con, laws of US, treaties made under their authorit
-Language grants judiciary textual support for judicial review, but no clear statement
-Has app jur over all cases coming from lower fed cts & state cts, as long as state ct cases involve a fed ques.
Ex parte Mccardle
P imprisoned under Reconstruction Act for writing about military official. Claimed violated habeas corpus. 
By authority of Art III, congress removed habeas corpus jurisdiction from Fed Cts. 
But Fed cts were not absolutely striped b/c case could have gotten on habeas corpus by certiorari
Internal limits on power of congress to limit jurisdiction of Fed cts
-Cong cant interfere w Art III- must give some app jur to Sct & make some lwr fed cts- logical that they should?
External limits on power of congress to limit jurisdiction of Fed cts
 -Const limits outside Art III that congress cant offend- limiting jur based on sex/other Eq Prot issues
*Congress wouldn’t limit jur solely b/c doesn’t agree w decisions by sup/fed ct bc no way to change final word
Proper Role of Cts: Limiting their own Jurisdiction
Mostly in art III- ct hears only case/controversy & also separation of powers concerns
*Advisory Opinions 
Ct has unwillingness to provide advisory opinion i.e. of treaties (European war and American neutrality)
 >Separation of powers issues- Art II empowers president to ask executive officers for opinions
 >Risk of overbroad decision broad, not concrete and narrow cases
 >Issues are not crystallized, judges would have to r

a coordinate political dep OR
     (looks to constitution’s text, sep of powers issue- ct shouldn’t review impeachments)
2- Lack of judicially discoverable and manageable standards for resolving it OR
3- Impossibility of deciding w/o an initial policy determination of a kind clearly for non-judicial discretion OR
4- Impossibility of ct’s undertaking independent resolution w/o expressing lack of respect to coord branches OR
5- An unusual need for unquestioning adherence to a pol decision already made OR
6- Potentiality of embarrassment from multifarious pronouncements by various departments on one question
*Areas- (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 Const)
Powell v McCormick Congress said- cant be a member of congress b/c used funds improperly
Ct- qualifications tbd by congress are limited to those set in constitution
-Should be decided judicially, house has no const right to exclude members
-Ct is final arbitrator of const issues, existence of any political conflict is not enough reason to avoid an  issue
Bush v Gore Dissent argues
-Textual commitment to leave it to congress and not ct? Was intervention less appropriate than it was in Baker?
-Would it have been prudent to leave it to pol branches or was swift intervention better for country?
-Should the court protect the minority? Hard to tell what is the minority
II. Enforcing Constitutional Allocation of Government Power
Federalism=allocation of power between national and regional governments
The only powers Nat gov has are the ones constitution provides -Art 1 sec 8
    -Power over foreign affairs is the only implied power
Art I prohibits states to engage in war/treaties, coin money, impose tariffs w/o consent
   10th Am-Powers not given to fed gov, nor barred from states are reserved for the states
States have inherent power to act for perceived welfare, health, safety of citizenry as long as actions comply with State constitution, valid Federal law, and Federal Constitution
Allocation b/n national and state power can be:
1 Prohibited by the Const
2 Nat gov can be given exclusive power (treaties, coin $) OR state can be given exclusive powers
3 Concurrent power-interstate commerce, taxes, spending for general welfare (Supremacy Cl applies)
Who should decide Federalism issues?
-Judicial review, just like any const issue (has been in decline in 20th century)
 >Congress shouldnt decide scope of its own power, stifles state autonomy
-Political Enforcement
 >Political safeguards (elections of congress and president by states’ involvement)
 >Federalism is about practicality rather than Principle- jud review should only be used in individual liberties
 >Open and fair process should not be invalidated, S Ct should only eliminate distortions in political process
Purpose of Federalism
-Liberty of individual choice
   >Uniform law may represent majority of US citizenry, but 90% of one state and 5 % of another
   >More individuals participate if power is left at local and regional levels
-Experimental laboratory
   >States can try novel social & economic experiments, but cts & congress should preserve national principles
-Thwarting tyranny
   >States can break authoritarian control n the national gov by an ambitious minority
-Controlling negative externalities- States can try to benefit themselves & impose external costs on other states
-Fidelity to constitutional design   &    -Uniformity
Fundamental Constitutional Rights Trump Federalism
Bill of rights & Reconstruction Era Ams (13, 14, 15) -Block actions of otherwise valid state/national laws
i.e. congress ban on interstate resale of books abridges freedom of speech, press
When congress exercises its power
Ask- Is objective of the challenged action w/n the enumerated powers?
Ask- Are the means to achieve that objective constitutionally permissible?
Necessary and Proper Clause