Select Page

Constitutional Law I
University of Alabama School of Law
Horwitz, Paul

ConLaw – Horwitz – UA – Spring 2010

Con Law – LONG Outline

Constitutional Interpretation

– Text

– History surrounding adoption of text

– Structure as a whole

– Policy

– Judicial Precedent

Important Parts of the Constitution

– Article 1, Section 1 = Vesting clause

– “herein granted” – limited to powers in Constitution

– Article 1, Section 8 = Powers of Congress (limited to powers outlined)

– [18] Necessary and Proper Clause

– Possibly expands power a bit, not completely, but allows passing of laws to help administration of executive and judicial branches

– Maybe restricted to powers enumerated

– Maybe restricted by “proper” or “necessary”

– Article 1, Section 9 = Forbidden to Congress

– Article 1, Section 10 = Limitations on States (only limited by what not to do)

– States can presumptively do anything, so this restricts their power

– Article 2, Section 1 = Vesting clause of executive power

– Seems broader than legislative power (no power enumeration)

* Number of sections include cooperating with Congress

– Article 3 = established 1 Supreme Court

– Allows Congress to vest judicial powers in inferior courts if they wish

– Article 4 = Full faith and credit

– States are supposed to honor other states’ decisions

– important for economics

– Article 4, Section 2 = Privileges and Immunities Clause

– Article 5 = How to alter constitution

– Usually congress proposes and states ratify

– Or states can call for conventions to propose amendments

– Makes amendments somewhat difficult and slow; may make people cool off on hot issues and deliberate

* Separation of Powers not mentioned; coherent theme requiring cooperation

* Federalism, Judicial Review, and Slavery also not mentioned

– 10th Amendment = Sovereignty for states


A) The Judiciary/Article III

1) Types of cases (Art. III, § 2) – Federal courts have authority to hear:

– Cases arising under the Constitution or under a federal statute;

– Cases of admiralty;

– Cases between two or more states;

– Cases between citizens of different states (diversity jurisdiction);

– Cases between a state or its citizens and a foreign country or foreign citizen.

2) Types of jurisdiction

a) Original and exclusive jurisdiction: In suits between states or involving an ambassador (or other high public official) of the United States, the Supreme Court has original jurisdiction (may hear the case first).

b) Appellate jurisdiction: The Supreme Court has the jurisdiction to hear appeals of final decisions from state or federal courts.

i) Writ of Certiorari: The majority of cases are heard by Certiorari, which means the Court has discretion to hear the appeal (four justices must vote to hear the case).

ii) Mandatory jurisdiction: The Court is required to hear appeals only when the decision was made by a three-judge federal district court.

iii) No independent and adequate state law ground

For the Supreme Court to review a state court’s decision, there must not be an independent and adequate state law ground of the decision.

Example: A plaintiff wins a judgment against a police department for brutality based upon both state and federal grounds. Even if the Supreme Court reversed on the federal law grounds, the plaintiff would still win based upon the state law. Consequently, the Supreme Court will not hear the case.

B) Judicial Review

1) Marbury v. Madison principle

Only the Supreme Court has the ultimate authority to declare the constitutionality of a statute or government action.

Marbury v. Madison

Background: Election of 1800; Jefferson receives majority of popular vote but is tied w/ Burr. Legislature has to decide contentious results.

February 13 = Circuit Courts Act is passed, creating more judicial posts and taking one supreme court post away, limiting next president’s power over the courts. February 17 = Jefferson finally elected officially.

February 28 = D.C. Judges Act = creates 42 positions for D.C. area; Marbury slotted to get one.

March 2-3 = Midnight Judges are nominated; confirmations signed and sealed by outgoing President Adams; some are left undelivered.

March 4 = Inauguration; Jefferson tells Madison not to deliver confirmations.

March 31 = Circuit Courts Act repealed; Supreme Court session is postponed several months

December 21 = Marbury files with SC for writ of mandamus (order compelling gov’t officer to perform an administrative duty)


1. Does Marbury have a right to the commission? YES The order granting the commission takes effect when the president’s

constitutional power of appointment has been exercised, and the power has been exercised when the last act required from the

person possessing the power has been performed. The grant of the commission to Marbury became effective when signed by

President Adams.

2. Does the law grant Marbury a remedy? YES. Where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, the individual who considers himself injured has a right to resort to the law for a remedy. The President, by signing the commission, appointed Marbury a justice of the peace in the District of Columbia. The seal of the United States, affixed thereto by the Secretary of State, is conclusive testimony of the verity of the signature, and of the completion of the appointment. Having this legal right to the office, he has a consequent right to the commission, a refusal to deliver which is a plain violation of that right for which the laws of the country afford him a remedy.

3. Does the Supreme Court have the authority to review acts of Congress and determine whether they are unconstitutional and therefore void? Yes. It is emphatically the 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 the rule. If two laws conflict with each other, the Court must decide on the operation of each. If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.\

4. Can Congress expand the scope of the Supreme Court’s original jurisdiction beyond what is specified in Article III of the Constitution? NO. The Constitution states that “the Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction.” If it had been intended to leave it in the discretion of the Legislature to apportion the judicial power between the Supreme and inferior courts according to the will of that body, this section is mere surplusage and is entirely without meaning. If Congress remains at liberty to give this court appellate jurisdiction where the Constitution has declared their jurisdiction shall be original, and original jurisdiction where the Constitution has declared it shall be appellate, the distribution of jurisdiction made in the Constitution, is form without substance.

5. Does the Supreme Court have original jurisdiction to issue writs of mandamus? No. 
To enable this court then to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction.
It is the essential criterion of appellate jurisdiction that it revises and corrects the proceedings in a cause already instituted, and does not create that case. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper is, in effect, the same as to sustain an original action for that paper, and is therefore a matter of original jurisdiction.

Disposition: Application for writ of mandamus denied. Marbury doesn’t get the commission.

C) Justiciability

1) Political Questions= A court will not hear cases that raise questions of a political nature that are deemed better left for other branches of government. The underlying principle of this requirement is the separation of powers doctrine.


Facts: Apportionment of voting district violates Equal Protection Clause. TN hasn’t re-allocated districts since 1901. Urban population voters don’t have as much weight in legislature as they should. Voters say the legislature has interest in not re-allocating because certain ones would be giving up power. Status quo minimizes black, urban votes. Is this a PQ?

Decision: Court decided case was justiciable b/c no other branch can answer this issue. Also, it was pled as an Equal Protection case, which means the Court has tools/standards developed to resolve the case.

***BAKER PQ Test (ranges from high importance/certainty to low)

1. Does the constitutional text give issue to a committed department?

Nixon v. U.S.

Federal judge claims Senate has used improper procedures in convicting him allowing impeachment, b/c case was heard before a committee of Senators rather than the full Senate. D claims violation of Impeachment Clause, which says that the Senate shall have sole power to t

hat confer standing upon citizens who would not be able to allege an injury in fact? No. Congress cannot pass legislation that allows for the creation of citizen suits that confer standing upon citizens who would not be able to allege an injury in fact.

Holding: Assuming that they established that funded activities abroad threaten certain species, they failed to show that one or more of their members would thereby be directly affected apart from the members’ special interest in the subject. Affidavits of members claiming an intent to revisit project sites at some indefinite future time, at which time they will presumably be denied the opportunity to observe endangered animals, do not suffice, for they do not demonstrate an “imminent” injury. Citizen-suit clause created a loophole to get around the ‘no-generalized grievances’ requirement. However, there was no actual or imminent injury to the plaintiffs. Congress can’t create an injury.

3) No claims by a plaintiff outside a zone of interest protected in legislation

FEC v. Akins

The plaintiffs were registered voters who had asked the Federal Elections Commission to determine that AIPAC was a “political committee” subject to certain regulations and reporting requirements under the FEC, because AIPAC had crossed certain spending thresholds. The FEC determined that AIPAC had indeed crossed those thresholds, but still did not require it to make the required reports because the organization was issue-oriented, not campaign-related. The plaintiffs sought review in court. Government challenged the plaintiff’s standing on the grounds that the plaintiffs had suffered no ‘injury in fact’; that if the plaintiffs had any injury it was not fairly traceable to the FEC decision; and that a decision in favor of the plaintiffs would not redress their injury.

Issue: Did the plaintiffs suffer an injury in fact sufficient to establish standing?

Decision: YES. Congress has, by statute, allowed “any party aggrieved by an order of the Commission” to file a suit, which is a broad grant; not getting the requested information is an “injury in fact” just like the denial of any other information which is statutorily required to be provided to citizens by the government. The grievance is a “generalized grievance,” but the harm is concrete enough to overcome this, and the harm is fairly traceable to the FEC – even though the FEC may find other grounds not to make AIPAC provide the info.

The Court distinguished this case from lawsuits where an individual seeks relief based on mere taxpayer standing – an insufficient ground for standing to sue. It instead employed a “zone of interests test,” asking whether the injury asserted fell into the zone of interests protected by the statute.

4) Timing Problems

a) Ripeness (“too early”) = Real or imminent threat of harm must exist for a court to hear a claim; If the facts haven’t been developed, the court can’t draw an appropriate narrow opinion.

Example: A party may not challenge a proposed statute.

b) Mootness (“too late”) = You must have an actual controversy throughout the entire

litigation, not just when filed.

– Change in facts, change in law, death of a party, etc. can make it moot.

– Limits cases to those capable of being affected by decision; prevents Court

from deciding unnecessary cases except:

1) Wrong capable of repetition but evading review: When the controversy or wrong is no longer present, but is still capable of repetition, a court may hear the matter.
Example: A pregnant woman attacks the constitutionality of a state’s prohibition on abortions. By the time the case is decided, she is no longer pregnant. Nonetheless, because a pregnancy will almost always be over before