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Constitutional Law I
SUNY Buffalo Law School
McCluskey, Martha T.

Professor McCluskey, Spring 2012
Marbury v. Madison
                                                              i.      TWO THINGS:
1.      Constitution is the supreme law of the land – Article III is a ceiling.
2.      Judicial review established.
                                                            ii.      Article III: created the federal judiciary and defines its powers.  Some of the topics covered:
1.      “The judicial Power of the United States shall be vested.”
2.      “…in one Supreme Court and in such inferior courts as Congress may from time to time establish.”
3.      “cases” and “controversies”
4.      Supreme Court has original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party.  In all other cases, the S.Ct. has appellate jurisdiction, subject to “such Exceptions and under such regulations as Congress shall make.”
                                                          iii.      Judicial Review: The judiciary has the authority to review the constitutionality of executive and legislative acts, as long as they are not “political”
1.      Distinguish between “political acts” and “duties.”
a.       Political/discretionary – not reviewable by court.
2.      Check on legislative branch.
3.      If the S.Ct. identifies a conflict btw 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.
                                                          iv.      Marbury’s 5 themes in a nutshell:
1.      Separation of Powers: their powers sometimes overlap to act as a checks and balances to prevent from exceeding
2.      Federal Law Supremacy: Not implicated classically; when conflict between the Constitution and Act of Congress => Constitution wins
a.       Constitution is the Supreme Law of the Land.
3.      Enumerated Powers: federal court can only exercise powers given by the Constitution (Art. III is a ceiling).
4.      Federalism: none
5.      Interpretation of the Constitution: Supreme Court interpreting and duty of courts to interpret
Judicial review of state and local actions
                                                              i.      Martin v. Hunter’s Lessee (dispute over land; whether a VA statute conflicted w/ a federal treaty)
1.      The Court can review the constitutionality of a decision by a state’s highest court.
a.       A state is not a sovereign entity.
b.      Need for uniformity in decisions throughout nation interpreting the Constitution
c.       M v. M applies to state decisions!
2.      The S.Ct. may determine whether a state court has reached a decision that is not in conformity w/ the Constitution; but it may NOT review state court decisions that merely adjudicate questions of state law (exclusive and adequate), ONLY FEDERAL QUESTIONS (Appellate Jurisdiction).
                                                            ii.      Cohens v. Virginia – criminal Ds can seek S.Ct. review when they claim their conviction violates the Constitution.
Interpretive limits
                                                              i.      Originalist – enforce what is stated or clearly implicit in written Constitution
                                                            ii.      Non-originalist – Constitution evolves through interpretation and amendment
1.      Court looks at S.Ct. precedent, history, prudential concerns, social costs, scrutiny and text (US v. Emerson)
Congressional limits
                                                              i.      Congress’ ability to limit jurisdiction of federal courts:
1.      Article III ceiling (M v. M)
2.      McCardle and Klein
                                                            ii.      Article III – sets out types of cases S.Ct. can hear: “box” of powers, Can Congress give anything outside of the box – NO (M v. M); Can they remove powers w/in the box?
                                                          iii.      Article III: the Exceptions and Regulations Clause: “the S.Ct. shall have appellate jurisdiction both as to Law and Fact, with such Exceptions, and under such regulations as the congress shall make.”
1.      One side: provides Congress with broad powers to remove matters from S.Ct. purview – a check on judiciary’s power
2.      Other side: Congress is limited in ability to control S.Ct. jurisdiction – clause modifies the word “fact” (concern about ability to over-turn the fact finder)
3.      Both views – power cannot be used in manner that violates Constitution
                                                          iv.      Ex parte McCardle (Congress takes away S.Ct.’s appellate jurisdiction to hear habeas corpus pleas.)
1.      Congress has the ability to modify jurisdiction of the Supreme Court – can decide when S.Ct. can hear cases.
2.      Although the Court’s authority stems from the Constitution, it “is conferred w/ such exceptions and under such regulations as congress shall make.”
a.       S.Ct. right to hear an HC case is only withdrawn where Court gets case by appeal from lower courts; an original petition for HC could be commenced in S.Ct. (Felker v. Turpin)
                                                            v.      US v. Klein (S.Ct. decides what constitutes loyalty after Civil War)
1.      Separation of powers is a limit on Congress’ authority to limit S.Ct. jurisdiction.
2.      While acknowledging Congress’ power to create exceptions and regulations to the Court’s appellate jurisdiction, Congress cannot direct the results in particular cases, there by invading the judicial function.
3.      Any jurisdictional limitation must be neutral.
                                                          vi.      Robertson v. Seattle Audubon
1.      Congress has power to pass legislation that will affect only suits pending or going forward.
2.      Courts must apply new law to cases pending – not old cases or fact finding.
                                                        vii.      Important consideration: Article III shouldn’t be looked at in isolation.
1.      “Everyone should have their day in court.”
Supreme Court’s
Original Jurisdiction
Supreme Court’s
Appellate Jurisdiction
Lower Federal
Court’s Jurisdiction
Source of Congress
(can’t be altered or added/ subtracted)
Art. III §2 cl.2 McCardle
Art. III §1
Art. I §8 cl.9
Constraints on Congress’s Power
Bill of Rights Separation of Powers
Bill of Rights Separation of
Justiciability limits
                                                              i.      Five limits:
1.      Prohibition on advisory opinions
2.      Standing
3.      Ripeness
4.      Mootness
5.      Political Question
                                                            ii.      Advisory opinion
1.      To avoid being an advisory opinion, there must:
a.       Be an actual dispute between adverse litigants, and
b.      A substantial likelihood that a federal court decision will bring about some change or effect.
2.      Court doesn’t give advice on how to do something – only CASE or CONTROVERSY!
3.      Congress cannot vest review of the decisions of Art III Courts in officials of the Executive Branch (Hayburn’s case).
4.      A statute cannot retroactively command the federal courts to
5.      reopen final judgments, thus violating separation of powers and principle that a judgment conclusively resolves the case (Plaut v. Spendthrift Farm)
6.      Compared w/ declaratory judgments:
a.       Parties seeking declaratory judgment have been actually injured by statute and not just concerned with hypothetical activity.
                                                          iii.      Standing
1.      Constitutional standing requirements:
a.       Π must allege that h

be constructed w/o the exclusionary zoning ordinances b/c the low-income residents might not be able to afford to live there regardless of zoning or builders might not want to construct there.
3.      Simon v. Eastern KY Welfare Rights Org (IRS rule changed to say only tax exemptions for free med. care in emergency situations). No standing b/c purely speculative whether new ruling was reason for P’s not receiving free care and not for sure that a win in the lawsuit would get them the care anyway
4.      Nuclear power plant: Duke Power v. Carolina Environmental Study Group – Court said there is standing b/c plant was built in P’s area which subjected them to many injuries.
5.      Limitation on 3rd party standing
a.       A plaintiff can assert only injuries that he or she has suffered; a plaintiff cannot present the claims of 3rd parties who are not part of the lawsuit.
b.      EXCEPTIONS: situations in which a person who has suffered an injury has standing to raise the interest of 3rd parties not before the court (NOTE: meet all constitutional requirements also!)
                                                                                                                                      i.      Where the 3rd party is unlikely to be able to sue:
1.      A person may assert rights of 3rd party not before the court if there are substantial obstacles to the 3rd party asserting his or her own rights and if there is some reason to believe that the advocate will effectively represent the interests of the 3rd party.
2.      Barrows v. Jackson (P, a white person who had signed a racially restrictive covenant, was sued for breach of contract for allowing nonwhites to occupy the property; D was based on rights of blacks, who were not parties to the lawsuit) Held: 3rd party standing allowed, permitting white D to raise interests of blacks to rent and own property in the community
                                                                                                                                    ii.      Close relationship between the plaintiff and 3rd party.
1.      Doctor/patient relationships (Singleton v. Wulff – abortion case; doctors suffered economic injury b/c they were performing operations and Medicaid not funding them)
2.      Vendors and customers (Craig v. Boren – bartenders challenges 21 age limit for males to buy beer, his injury was loss of business)
c.       Waiver – if it is clear that the person has waived his rights, the 3rd person cannot bring in future claims (Gilmore v. Utah)
d.      Associations and organizations
                                                                                                                                      i.      Association has standing where its own interests are at stake, or
                                                                                                                                    ii.      Association can sue on behalf of its members if:
1.      members would otherwise have standing to sue themselves
2.      interests sought to be protected are crucial to organization’s purpose, AND
3.      neither claim nor relief requires participation of members in lawsuit
e.       First Amendment provides grounds to assert rights of parties not before the court if a statute abridges 1st amendment (overbreadth doctrine.)