Select Page

Constitutional Law I
St. Louis University School of Law
Howard, Alan J.

I.                   Judicial Review
A.    Legitimacy
1.      Marbury v. Madison
a.          Establishes Supreme Court’s power of judicial review for all cases arising under the Constitution and laws of the United States. Constitution trumps other Federal laws.
b.          Supremacy Clause (Art. 6, Sec. 2) says the Constitution and acts of Congress made in pursuance of thereof shall be the supreme law of the land. The Supreme Court has the responsibility of determining when those acts are in pursuance of the Constitution.
c.          President can’t be sued during presidency
d.         Is the nature of act legal or political? Act is not subject to law if it is discretionary and it is if it is ministerial.
e.          If the court identifies a conflict between a Constitutional provision and a Congressional statute, the court has the authority and duty to declare the statute unconstitutional and refuse to enforce it.
f.           Court didn’t have original jurisdiction.
B.     Review of State Court Decisions
1.      Martin v. Hunter’s Lessee
a.       VA is refusing to comply with S.C.’s earlier order concerning title of the land in dispute.
b.      Case turns on Section 25 of Judiciary Act of 1789 which provides for review by the S.C. of final state court decisions rejecting claims under the Federal Constitution and laws.
c.       Appellate jurisdiction is given to the S.C. by the Constitution in all cases where it does not have original jurisdiction, subject to congressional regulations.
d.      This power of review is necessary for UNIFORMITY of decisions throughout the whole U.S., upon all subjects within purview of the Constitution.
e.       VA argued Section 25 violated 10th Amendment (state sovereignty) and impairs the independence of state judges.
f.       States could interpret Federal laws differently; S.C. must have power to review for UNIFORMITY.
g.      Art. 3, Sec. 2 allows Congress to expand and contract S.C.’s appellate jurisdiction.
h.      Art. 1, Sec. 10 cuts back on state sovereignty in numerous respects, there is no reason to think the state judiciary is immune from this (can’t make own treaties, go to war, etc.).
2.      Cohens v. VA
a.       Upheld S.C.’s right to review state criminal cases.
b.      Federal law prohibited selling lottery tickets.
c.       VA’s argument is that the grant of original jurisdiction to the S.C. of cases “in which a state shall be a party” precluded, by negative implication, the exercise of appellate jurisdiction.
d.      Holding: the judicial power extends to all cases arising under the Constitution or a federal law of the United States, whoever may be the parties. This power is needed to protect federal interests.
e.       State judges depend on people and legislature for their office and salary so they are less independent than Fed. Judges; Art. 3 protects federal judges from political pressure (salaries can’t be diminished while in office).
C.                 Judicial Exclusivity in Constitutional Interpretation
1.      Cooper v. Aaron
a.       Reaffirmed Marbury
b.      Article 6 of the Constitution makes the Constitution the “supreme Law of the Land” and it is emphatically the province and duty of the judicial department to say what the law is.
c.       Art. 6 of the Constitution makes it of binding effect on the States “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Every state legislator and executive and judicial is solemnly committed by oath taken pursuant to Art. 6, Sec. 3 “to support this Constitution.”
2.      Dickerson v. US
a.       Congress can’t overrule S.C. by law; only by Constitutional amendment
D.                Political Restraints on the Supreme Court
1.      President nominates a justice; then Pres. must obtain “Advice and Consent of the Senate” for appointment to be effective (Art 2, Sec. 2, Cl. 2); Senate must confirm
2.      Art. 3, Sec. 1 – Justices hold office for life during good behavior
3.      Art. 2, Sec. 4 allows impeachment for conviction of treason, bribery, or other High Crimes and Misdemeanors
a.       No S.C. has been removed; one has been impeached
4.      Congress sets size and budget which can serve as political check
5.      Ex Parte McCardle
a.       Art. 3, Sec. 2 allows Congress to make exceptions to S.C.’s appellate jurisdiction – (Court stripping)
b.      Issue: Does congressional negation of previously granted jurisdiction preclude further consideration of matters brought to the Supreme Court based on that jurisdiction?
c.       Holding: Yes.
d.      The Supreme Court’s jurisdiction is conferred by the Constitution subject to such exceptions and under such regulations as Congress shall make. The First Congress established the federal courts and prescribed regulations for jurisdiction. Congressional affirmation of appellate jurisdiction implies the negation of all jurisdiction not so affirmed.
e.       Here Congress has expressly removed jurisdiction previously granted. The Court may not inquire into the motives of Congress; without jurisdiction, the Court cannot proceed to consider the case.
f.       No judgment can be rendered in a suit after the repeal of the act under which it was brought and prosecuted. Judicial duty requires rejection of ungranted jurisdiction as much as it requires exercise of valid jurisdiction.
g.      Congress was not completing withdrawing the S.C.’s right to hear Habeus Corpas cases. Rather, it was withdrawing that right only when the S.C. got that case on appeal.
h.      Note: case has limited significance.
6.      Constitutional Amendments (See Dickerson)
a.       4 Amendments have been made to overrule a S.C. decision.
E.                 Constitutional and Prudential Limits on Constitutional    Adjudication: The “Case or Controversy” Requirements
1.      Art. 3, Sec. 2, Cl. 1 of the Constitution provides that the judicial power shall extend to a list of enumerated cases and controversies.
a.       Affirmative grant of power has long been thought to imply a negative: that judicial power does not extend to anything but a case or controversy.
b.      To qualify as a case or controversy, a matter must be concrete and non-hypothetical, NO advisory opinions;
c.       Injury to parties must be actual that is concrete and personal to them as expressed in the law of standing; and
d.      Mootness and Ripeness.
e.       Also, some cases may appear concrete but is unreviewable because it’s a nonjusticiable political question.
2.      Advisory Opinions
a.       Cases and controversies does not include advisory opinions; needs adverse parties
b.      Washington asked S.C.’s advice but court refused because there was no actual case – court said this because the branches are to serve as checks on each other
c.       Some state courts can give advisory opinions
3.      Standing – Is this case worth the S.C.’s time to hear?
a.       Three Constitutional Elements
i.              Injury in Fact: Must be (a) concrete and particularized    and (b) actual/imminent, not conjectural/hypothetical – (can be personal, bodily, or financial harm.)
ii.                  Causal connection between injury and conduct complained of – injury has to be fairly traceable to the challenged action of the defendant
iii.                Redressability – must be “likely” rather than “speculative” that the injury will be redressed by a favorable decision.
b.      Injured P’s will fight harder (like injured animals; Kim’s grandpa) – rationale
c.       Lujan v. Defenders of Wildlife (1992)
·         The claim that P’s will return to foreign countries makes injury not imminent – no standing
·         Congress can create legal rights that give rise to standing
·         Not law because didn’t get majority vote but foreign companies doing the damage aren’t in the suit (no redressability)
d.      MA v. EPA (2007)
·         Injury was rise in sea level and EPA’s failure to regulate was causing the injury
·         Reduction in domestic emissions would be a remedy to MA’s injury
·         Doesn’t matter that regulating would be just a small step
·         Important that MA is sovereign state (lesser hurdle for states to gain standing)
·         DISSENT – says injury is not particularized because global warming is harmful to humanity at large (not parti

nches of government. In determining whether there is a political question, the primary criteria are:
·         (1) a “textually demonstrable” constitutional commitment of the issue to the political branches for resolution;
·         (2) the appropriateness of attributing finality to the action of the political branches;
·         (3) the lack of adequate standards for judicial resolution of the issue; and
·         (4) avoidance of issues that are too controversial or could involve enforcement problems.
c.       Three Strands
·         Constitutional – Constitution says court must decide all issues before it unless Const. commits it to another branch of gov’t
·         Functional – Courts can’t get ahold of the data to answer the question but the legislature can. Courts aren’t well suited to decide the issue.
·         Prudential – Even if they could come up with a rule, it would create too much controversy or enforcement issues.
d.      Baker v. Carr
·         Overrules Colegrove v. Green
·         P sought to force reapportionment of voting districts to better reflect the current population
·         S.C. says there is jurisdiction
·         Mere fact that a plaintiff seeks protection of a political right does not mean a political question is presented. The relationship between the judiciary and the coordinate branches of the federal gov’t gives rise to political questions, not the federal judiciary’s relationship to the states. This case involves none of the types of problems normally identified as involving political questions.
·         The issue here is whether the state’s activity is consistent with the federal Constitution. Remanded.
II. The Nation and the States in the Federal System
A.    The powers of Congress are specifically enumerated. The federal gov’t is one of delegated powers, and every federal statute must have its basis in one of these powers
B.     Art. 1, Sec. 8 sets forth the many powers of Congress. Ex: power to tax, regulate interstate commerce, declare war, etc.
C.     Necessary and Proper Clause – allows the specific powers of Congress to be enlarged. (textual support in McCullough)
D.    McCullough v. Maryland (1819)
1.      MD attempted to tax all banks not chartered by the state including the 2nd Bank of the U.S.
2.      Issue 1 – Even though the Constitution does not expressly grant Congress the power to incorporate a bank, can it do so under the doctrine of implied powers? (Yes)
a.       “Let the end be legitimate, let it be within the scope of the Constitution, then all means which are appropriate (i.e. necessary and proper), which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are Constitutional. (MEANS-END TEST)
·         Congress’s own judgment deserved deference so long as it adopted means “which tended directly to the execution” of delegated powers, or were “appropriate” and “plainly adapted” to achieving legitimate ends.
b.      The Constitution cannot contain an accurate detail of all the subdivisions of gov’t power that can be executed. It would be nothing more than a legal code.
c.       Art. 1, Sec. 9 argument – Limits Congress’s powers because Constitution assumed powers not forbidden would be possessed by Congress.
Necessary and Proper is in the section of