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

Judicial Powers – Article III
Affirmative Grants of Power to the Judiciary (Article III)
McCulloch v. Maryland (1819): The power of Congress to create an entity does not need to be explicitly stated in the Constitution. State entities do not have the power to levy taxes on the nation.C grants power to tax, borrow money and regulate commerce. The “Necessary and Proper Clause” is placed among the affirmative grants of power, not as a limit – it enlarges, not diminishes the government’s powers. Federal entity cannot be controlled by a state.
Marbury v. Madison (1803): SC can invalidate laws that are repugnant to the Constitution. Reasons for judicial review – improves democracy by checking the other branches; want to protect the minority from tyranny of the majority. Intent, structural and prudential.
Policy: Not allowing judicial review would subvert the intent of the framers by giving it too much power. Also would alter the structure of checks and balances. Text of document states that “Judicial power of the US is extended to all cases arising under the Constitution.” Structural argument says this would alter the structure of government.
2 Sources of Justifications established by Marbury
1.      Judicial Review improves democracy – majoritarian rule is central to democracy and US government, the fact that the court can check the other branches allows the court to get to the bottom of the framework and structures that organize the democratic process. Someone has to be there to make sure things stay on track. Review shouldn’t be a cost-benefit analysis of policies, but to make sure the branches making the policy decisions consistent with a democracy and its principles.
2.      Democracy and free government is not about majoritarian rule but balancing with the tyranny of the majority. Want to make sure majority rule does not go to for – want to protect the right of the minority. Avoiding the tyranny of the majority does not cause tyranny of the minority.
Martin v, Hunter’s Lessee (1816): SC can review the decisions of state courts. Structural – C establishes SC as supreme. Text: Appellate review in “all cases.” Text: Supremacy Clause.
Cohen’s v. Virginia: Extends state review to criminal cases as well as civil cases.
Cooper v. Aaron: States must defer to the feds in cases of equal protection.
Limits on Judicial Power
1.      External Limits:
a.       C Amendment
b.      Appointment Power
c.       Impeachment
d.      Election Returns
e.       Congress control over jurisdiction
2.      Explicit Limits in Article 3
a.       Art. 3 Jurisdiction
                                                  i.      Subject Matter J: federal question / diversity case
                                                ii.      Original J: states as parties, foreign officials / ambassadors
                                              iii.      Appellate J: Ex Parte McCardle
1.      Ex Parte McCardle: Congress can restrict the jurisdiction of the court. On appeal using habeas corpus, Congress revoked that right. SC upheld. This was appellate jurisdiction, which Congress can limit.
b.      Art. 3 Case or Controversy Requirement
                                                  i.      No advisory opinions
                                                ii.      Standing Requirements:
1.      “Injury in fact” to P
2.      “Fairly Traceable” to Gov’t action
3.      “Redressable” by gov’t action
a.       Allen v. Wright: Court said nationwide class action suit against IRS by blacks failed 3-part test.
b.      Newdow: Girl reciting pledge is not harm to P.
                                              iii.      Timing (ripeness and mootness) not too soon or late
3.      Prudential Limits
a.       Prudential Standing Requirements
                                                  i.      No 3rd Party harms
                                                ii.      No generalized grievances
                                              iii.      “Zone of Interest” requirement
b.      Political Question Doctrine
                                                  i.      Distinguish C mandated commitment of decisionmaking to another branch
1.      Baker v. Carr: Tenn. Districting is not a political question – it is a equal protection issue – used 6 part-test. See below.
                                                ii.      From Prudential Policy Questions
1.      Court may lack political power, despite C authority
2.      Court may decide the political, not the C solution is best
Baker v. Carr Criteria for Political Question
Textually demonstrate-able C commitment to a coordinate branch
Lack of judicially discoverable standards
Impossible to decide w/out a initial non-judicial policy decision
Impossible to decide w/out disrespect to other braches
Unusual need to adhere to existing political decision
Potential for embarrassment due to conflicting pronouncements from other branches
Policy Reasons for Limits – What purposes are served by these requirements:
1.      The end of judicial restraint. By limiting the occasions for judicial intervention into the political process, the case or controversy requirement reduces the friction between the branches produced for judicial review. This often tied to concerns of the “countermajoritarian difficulty.”
2.      May ensure that constitutional issues will be resolved only in the context of concrete disputes rather than in response to problems that may be hypothetical, abstract or speculativ

sued on enforcement of the Civil Rights Act. Restaurant was 11 blocks from an interstate highway. Court had relied on congressional testimony that discrimination had a negative effect on interstate travel by blacks. Court reasoned that you cannot look at one isolated incident without looking at the fact that one incident combined with others may impose a burden on interstate commerce by reducing its volume or distorting its flow. Also feels you have to look at the state of interstate commerce today, not as how it was when the Constitution was written.
Darby sets up category 3 in Lopez – Congress can regulate intrastate commerce as long as it “substantially affects” interstate commerce.
Be able to synthesize these cases and say what the court feels is the test of interstate commerce, which Congress is trying to do. How do you know if there is enough of an effect on interstate commerce that Congress will have the authority to implement the laws passed.
After 1937, Congress never stuck down a law based on the Commerce Clause, until 1995 that is. Preliminary question is: Does Congress have an affirmative grant to act?
What can be intrastate that substantially affects interstate commerce. Not enough to identify the three categories, you must developed the rule on the exam! Must develop and explain what the court means by the rule and how it works. Rehnquist gives hints on what the rule means, lists factors: (he gets them using precedent – following cases above)
Is the activity economic? Must define what the court thinks is economic – especially in the precedent. What activities did it find to be economic, and what did it find to be not economic?
Instrumentalities, persons or things in interstate commerce?
b.      Current Rule:
United States v. Lopez
SCOTUS (1995)
In the Gun-Free School Zones Act of 1990, Congress made it illegal for an individual to possess a firearm in a school zone.
History: Court of Appeals held the act unconstitutional because the act neither regulates a commercial activity nor contains a requirement that the possession be in any way connected to interstate commerce. Government argues that interfering with education affects interstate commerce.