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Constitutional Law I
University of California, Hastings School of Law
Massey, Calvin R.

Con Law Outline – Massey Spring 2012

I. Role of the Supreme Court in Con Law

a. Judicial Review

i. Marbury v. Madison: Establishes Judicial Review, that Federal Courts and ultimately SCOTUS have the power to decide if laws enacted by Congress and actions of the executive branch are unconstitutional. Power only applies as to matters of federal law.

1. Judicial Review = defensive / passive action.

a. Court does not seek out laws to strike down and rule unconstitutional.

ii. Judicial Exclusivity, Cooper v. Aaron: Confirms that court’s power to interpret Constitution is exclusive when other contender is a state.

1. Supreme Court has the last word on Constitutional interpretation.

2. Need uniformity amongst interpretations.

3. President and Congress cannot do things that court rules unconstitutional, but they do have some latitude in not doing things

a. Ex. Not prosecuting things that the court says are constitutional.

b. Judicial Review – Utility and Methodology

i. Methods of Interpretation

1. Noninterpretivists

a. Courts are not limited to Constitutional text and we should not try to figure out what the actual text of the Constitution means.

b. Instead we should make it a mirror of our present sense of fundamental justice.

2. Interpretivists

a. Only legitimate form of judicial review is interpretation of the written text of the Constitution.

ii. Tools and Methods to Determine the Con’s Meaning

1. Textual

a. Drawn from present sense of the words of the provision

2. Historical

a. Original intent (of the drafters)

b. Original meaning (of the text)

c. Vectors of history – view history as a dynamic and examine progression of views

3. Structural

a. Views particular principle as implicit in structures of government and relationships created by Constitution among citizens and different levels of government.

4. Doctrinal

a. Asserts principles derived from precedent (stare decisis)

5. Prudential

a. Mode of reason that relies on practical considerations

b. Describes non-constitutional doctrines of the SCOTUS; ex. Abstention

c. Common in separation of powers problems involving the proper role of President and Congress with respect to foreign affairs.

6. Cultural

a. Rooted in widely shared cultural norms.

7. Role of Natural Law in interpretation

a. Mentioned in Calder v. Bull

b. Also, notes after Calder v. Bull discuss it.


iii. Scrutiny of Review – The “uneven nature of judicial review”

1. Minimal – “Rational Basis Review”

a. Legislation à presumed to be valid, challenger must prove unconstitutionality

b. Court begins with the presumption that statutes and other gov’t actions are valid.

c. Valid if rationally related to a legitimate state interest.

2. Strict

a. Opposite end of the spectrum from minimal.

b. Some legislation à presumptively invalid; ex: racial discrimination

c. Government must prove such law is necessary/essential to accomplish some compelling government interest.

i. Also, most narrowly tailored, or least restrictive, way of achieving the compelling objective. It is not enough to show that the law is rationally related to the objective.

ii. Compelling objective à critical importance; not just legitimate

1. Overwhelming social importance, such as the elimination of racial distinctions.

d. Ex: law is “suspect” upon initial inspection.

3. Intermediate

a. Government action smells bad but not quite enough to invoke strict scrutiny.

b. Example is gender discrimination suits.

c. Government must prove that law is substantially related to an important government objective.

d. Highly subjective standard: law has to be more than rationally related

i. NOT necessarily the least restrictive way of achieving the gov’t’s goal.

c. State Court Judgments and the Doctrine of Adequate and Independent State Grounds

i. Martin v. Hunter’s Lessee: Federal Question case (claim arising out of Federal Law).

1. H: SCOTUS may review decisions of the highest state courts on matters of federal law, but not state law.

2. Need for uniformity in the law’s application between States.

3. SCOTUS has final word on interpretation

ii. Michigan v. Long: SCOTUS will NOT review judgments of state courts that rest on adequate and independent state grounds.

1. Mixed Question à Court will presume the state court relies on federal law UNLESS the state court plainly states that it relied ONLY on state law. Even if this is stated, SCOTUS might conclude that it is not:

2. Independent: (ex. Not independent if State court treats substantive content of state constitution as defined by limits of US Const.) – Decision rests SOLELY on the interpretation of the state laws / constitution.

a. If the State court interprets and applies federal law / US Con to come to decision à SCOTUS can review b/c inadequate.

3. Adequate: (ex. State procedural rule bars consideration of federal claim and the rule was created with specific intent of barring federal claim, very uncommon).

iii. The Adequate and Independent State Grounds Doctrine: Requires assessment of the adequacy of the state basis for the decision and its independence from Federal law.

iv. Note 3 (p.31 after Michigan v. Long) Murdoch v. Memphis – established state courts as the ultimate arbiter of state law. State supreme courts have superiority on state law decisions, and only state supreme courts have the true authority to issue actionable opinions on state law. The federal courts are bound by the pronouncements of state supreme courts on state laws.

v. Ways to resolve uncertainty à presumption in favor of the federal jurisdiction.

1. Used when the IASG disputes involve state law + federal question.

2. Federal Law > State Law when they are in conflict.

vi. Bush v. Gore

1. SCOTUS JDX over state supreme court rulings on state law, SCOTUS pierces the veil because it reads 7-day extension as bad faith

d. Political Regulation of Judicial Review

i. Direct Political Controls

1. Amendment (of the Constitution)

2. Appointment (of justices)

3. Impeachment (of justices)

ii. Congressional Power to Control Jurisdiction of Federal Courts

1. Power to establish federal courts also implies that Congress can eliminate all inferior federal courts, and thus restrict the jx of the lower federal courts

2. Original Jurisdiction is expressly stated in Article 3 of the Constitution, so that is inalterable.

3. Appellate Jurisdiction of SCOTUS is controllable


b. Congress may RESTRICT but NOT expand the appellate jx granted the Supreme Court

i. Req. à Restriction does NOT violate some other constitutionally granted right.

4. Subject Matter Jurisdiction over lower federal courts is controllable.

5. Jurisdiction Stripping – Ex Parte McCardle: Congress can strip SCOTUS of jx over a case while it is pending before the court. In this case Congress repealed the act in question before the case was decided.

iii. Exceptions to and Regulations of the SCOTUS Appellate jx: SCOTUS has appellate review of all cases within federal judicial power (except those that the Court has original jx for), but Congress can make exceptions and regulations under Article III.

1. External: may not curtail jx in a way that violates an “outside Article III” guarantee, such as the due process or equal protection guarantees.

2. Internal: Implicit in, or falls within, the structure of Article III, which grants the federal judicial power to the federal courts.

a. US v. Klein: Congress may not enact legislation to eliminate an area of jx in order to control the results of a particular case. Limitation à neutral as to case outcome

i. Congress must exercise its power to limit jx in a manner consistent with constitutional limitations and with the independence of the judiciary.

ii. Scalia and Thomas, On Congress jx limits:

1. Amend underlying law à affect all future cases à ok

2. Change specific decision à affect exact case (docket #) à NOT ok

3. Can Congress remove all SCOTUS appellate jx?

a. Textual à constitutional

b. Opposing view à SCOTUS final interpretation à Create Uniformity in Federal Law

e. Justiciability

i. Introduction, Advisory Opinions, and Standing

1. Article III limits the Federal courts to adjudication of “cases or controversies”

2. Court has used this principle to limit Judicial Review in several ways

a. No Advisory Opinions: No one is suffering injury, no advocates, no case or controversy

i. PP: Avoid overly broad decision without real world facts.

b. Standing

i. 3-factors from Lujan case: (BOP à party invoking Fed. Jx)

1. Injury in fact or imminent injury à personally suffered.

a. No hypothetical


1. A court cannot decide the case without “expressing lack of respect due coordinate branches of government.”

v. Political decision already made

1. There exists “an unusual need for unquestioning adherence to a political decision already made”

vi. Potential for embarrassment

1. A judicial decision would create “the potentiality of embarrassment from multifarious pronouncements by various departments on one question.”

d. 1st factor is clearly Constitutionally mandated, but the others are mostly prudential concerns. Usually multiple factors are present in a case so it is difficult to decipher whether it only takes one or a combination of many to regard a decisions as a PQ.

iii. Abstention and the 11th Amendment

1. Essence: judicial decision declining to exercise jurisdiction given to a court by the Constitution and statute.

2. Federal courts need to refrain from interfering in the ongoing judicial processes of the state courts.

3. Conflict is inevitable, but abstention seeks to dampen, not totally eliminate the conflict.

4. Younger Abstention

a. Federal courts will abstain from exercising their jx when necessary to avoid interfering with ongoing state judicial proceedings in which a state has a significant interest.

b. Sometimes litigants in state courts ask the federal courts to enjoin the state proceedings on some constitutional ground, or declare the constitutional rights of the litigants in the state proceeding

c. Younger abstention forbids federal courts from exercising jurisdiction and requires them to dismiss the case.

d. Reason for the doctrine is to respect the integrity of each state’s judicial system, recognizing that state courts, just like federal courts, are obligated to apply the Con faithfully to preserve the rights of litigants before them.

5. Pullman Abstention

a. Requires a federal court to abstain from exercising its jurisdiction whenever:

i. State law issue is potentially dispositive;

ii. State law is unclear; AND

iii. Disposing of the state law issue will avoid constitutional question.

b. Provide the state courts an opportunity to settle the underlying state law question and thus avoid the possibility of unnecessarily deciding a constitutional question.

c. Rooted in the desire to avoid rendering advisory opinions.

6. 11th Amendment

a. No federal jurisdiction over state gov’ts when they are sued by anyone other than the federal gov’t or another state; UNLESS the state consents to the suit or Congress has clearly and unequivocally abrogated this immunity by exercise of its powers under §5 of the 14th amendment.

i. Primary purpose à bar to suits for monetary damages by citizens/foreign gov’ts against states.

b. Five Basic Questions to ask

i. Is the P one to whom the 11th A applies?

1. Bars suits by citizens of states and foreign nationals.

2. A state can bring action against a private person

3. Federal gov’t can sue the state on behalf of citizens.

ii. Is the Suit truly against the state?

iii. Is the suit seeking relief in a manner barred by the Amendment?

iv. Has the state waived its immunity?

v. Is there a valid federal statute in the area that overrides the immunity?

c. State Official à NOT a State UNLESS remedy sought would require State to pay compensation for past actions

i. Effect à bar suits against State Offices for monetary damages.

ii. There are just no damages available.

d. It is not a bar to injunctive relief.

e. Congress can abrogate this right of the state by making a law.