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

Mention cases? Mention public policy?
a war powers question might involve standing
I. The Role of the Supreme Court in Constitutional Law
USCA 1-11 + Fed. Circuit
California District Court of Appeal, 6 districts
·         the u.s. gov't is a gov't of enumerated powers
o   the people grant certain powers to the federal gov't and if the const. doesn't grant the power to the federal gov't then the federal gov't doesn't have the power
o   general police power- states generally have the power to legislate and act on behalf of protecting the health, safety, morals of the citizens
·         Marbury v. Madison: created judicial review- when courts decide whether gov't actions comply with the constitutions and can nullify the actions of another branch of gov’t. the power of a court to find that gov't action/statute/executive action/regulation unconstitutional. where there is a right there must be a remedy b/c if no remedy then there is no right. you can't enforce a law if it's unconstitutional and inconsistent with the constitution. –> the court didn't have jurisdiction
o   jefferson elected, judiciary act of 1801, sec. of state has to sign the appointment paper and then deliver it to the appointee, marshall signed the appointment paper but the commission wasn't delivered, marbury sued in S. Ct. for a writ of mandamus
o   sec. of state's duties is to conform to will of the president and the acts of an officer can't be examinable by the courts, but when legislature imposes other duties and the rights of people are dependent on the performance of those acts then they are examinable
o   the court interpreted the act to give the Court original jxd in all cases where mandamus sought and then ruled it void
o   court given original jurisdiction for some cases and appellate for others, so for this court to issue mandamus it must be an exercise of appellate jurisdiction
o   marshall inferred the power of judicial review from A. III's grant to the fed. courts of the power to decide cases arising under the const.
o   supremacy class- since framers expected state judges to decide if fed. was violated the const. they must have also expected the S. Ct. to use the sm power in its appellate capacity
·         s. ct.'s original jurisdiction is extremely small- conflicts between states
·         the const. is a superior paramount law then ordinary legislative acts. otherwise would subvert the foundation of all written constitutions and give the legislature omnipotent b/c const meant to limit their power but they could restrict that so it reduces const. to nothing
·         State constitutions may prohibit state officials from actions that would be permitted under the federal constitution, but state constitutions cannot empower state officials to act in a manner prohibited by the federal constitution
·         3 tiers of judicial review and graded on the basis of how deferential they are
o   1. (minimal scrutiny) rational basis review
§ valid if rationally related to a legitimate state interest, very deferential
§  as long as courts can imagine a rational basis for it, even if not the real reason, for carrying out the fed. police powers then it's not unconstitutional
§  courts begin with the presumption that statutes and other government actions are valid, and challenger has the burden of proving that the law is not rationally related to a legitimate government objective. Just be plausible, not bizarre, courts will accept purely hypothetical state interests
·         gov’t just has to show legitimate gov’t objective
o   2. intermediate scrutiny- mainly sex cases (classifies people on the basis of sex), it's in between them in terms of deferential
§ the gov't has the burden of proving that the actual purpose of the statute or action is important and that the statute or action is substantially related to the accomplishment of that actual purpose. inherently subjective (more than rational but not necessarily the least restrictive way of achieving the gov’ts goal
§ generally applies minimal scrutiny to questions of whether congress has exceeded its granted power and claims that gov't regulations have the effect of taking private property w/o just compensation
§ if law has some display of invalidit
o   3. strict scrutiny- race cases, national origin. inherently suspect, low deference.
§ some types of gov't action are presumptively invalid
§ gov'ts actual reason for using the presumptively invalid criterion (race) must be very important, and the use of the criterion mud the essential to accomplish that
§ must be necessary or essential and be the least drastic means of achieving a compelling state interest, narrowly tailored
§ when leg. Appears on its face to be a prohibition of the const, bill of rights, or religious/national/racial minorities or whether against discrete and insular minorities
o   courts rely on hard facts (empirically proven or legally proven) and soft facts- hypothetical facts, judicial assumptions about the society
§ “supposed” local benefits are a soft fact
·         courts refer more to congress on matters like the scope of the commerce power than on whether its racially neutral leg. Was the product of an intentionally discrim. Motive
·         more willing to assess motivation for state legislation. When a state law has the effect of discriminating agasint out of stateers it raises some questions about the motives behind the law
·         1777 articles of confederation- almost entirely a congress, no exec/judicial, couldn't compel states, compliance with laws voluntary, no common currency, couldn't tax
·         Philadelphia Convention- unless fed. Gov’t could find authority for its acts in the const. it didn’t have authority to act. by contrast, states were presumed to have power to act unless denied by the Const., fed. law or state const.
o   anti-federalists opposed the const., wanted PP to be made by majorities in states not national majority
o   John Jay first chief justice
·         Electoral College selects the President and senators chosen by state legislatures
·         Washington/Adams tried to strengthen the nat'l gov't through defense, finance, trade. Jefferson in 1800 led democratic-republicans
·         1801 Judiciary act by adams created 16 fed. appellate judges, reduced size of S. Ct from 6 to 5 after vacancy, midnight judges, 42 appointees (including William Marbury to be a justice of the peace) needed Sec. of State John Marshall's seal and approval but he didn't deliver them
·         original jurisdiction is when foreign diplomats or states are a party, also allowed congress to make 'exceptions and regulations' to appellate jxd of Court, but Marshal said it permits congress to remove cases from courts appellate jxd but not to transfer appellate to original jxd. May restrict appellate jxd but not expand the jxd given to the s. ct under A3
o   could eliminate the lower courts entirely
·         Cooper v. Aaron: Brown v. Board of Education sought to integrate public schools, but Governor Faubus and Arkansas Legislature claimed they weren't bound by S. Ct's decision in Brown b/c they weren't parties to the case
o   The const. is the supreme law of the land, if the state legislatures may annul judgments of the Court then the constitution becomes meaningless, if not the governor would be the supreme law of the land so must be restrained
·   counter majoritarian role
o   congress will manifest the will of the majority which may be intolerant of politically/socialyy unpopular minorities, but const. liberties extend to everyone (including unpopular minorities) so legislatures can't be trusted
o   fed. judiciary relatively immune to majoritarian pressure so better equipped to decide constitutionality
o   but if it's a 'living doc' that means it's meaning is what we want it to be at a given time so why defer to judges rather than politically accountable elected officially.
o   but it's carried out by unelected and unaccountable judges and is a repudiation of representative democracy
o   judicial review not really antidemocratic, it implements the majority will of earlier generations
o   creates stability
o   against: makes it difficult to correct mistaken interpretations of the const, congress/pres can't ignore decisions.
o   can only 1) persuade court to change its mind with new judges 2) impeach/remove justices 3) const. amendment
o   erosion of constitutional responsibility by the political branches- judicial review saps the will of the pol. branches to consider constitutional issues seriously
·   noninterpretivists- shouldn't attempt to figure out what text of const. means, should make it a mirror of our present sense of fundamental justice. courts are not limited to const. text but may import norms
·   interpretivsts- only legitimate form of judicial review is interpretation of the written text of the

ion- in all  other cases within A III with such exceptions and regulation as the congress shall make
§  2. the original jurisdiction is extremely stated in the constitution and inalterable. started in Article 3 and Marbury v. Madison- limited to cases between states and those involving diplomats
§  A III assigns the judicial power of the U.S. to one S Ct. and 'such inferior courts as the congress may establish'
§  A III gives Congress unbounded discretion to make exceptions to and regulation of the courts appellate jxd, can curtail jxd of inferior courts
§  since s ct. has original jxd in only 2 classes of cases, it follows that congress was bound to create some inferior courts to vest all that jxd
o  congress can decide that a certain category of cases arising under federal law should be litigated in state court (subject to S Ct. review), regardless of motive- dislike other results
§  congressional power to limit the jxd of all federal courts is a combination of 1) the power to make exceptions and regulations to the S Ct.'s appellate jxd and 2) the power to establish inferior federal courts, which implies authority to limit the jxd of the lower federal courts and curtail the jxd
§  congress can eliminate federal jxd over an entire class of cases i.e. injunctions in labor disputes- but unlikely cuz freezes in place the Court’s decisions it dislikes
o  Ex Parte McCartle: mccartle goes to s ct. and says the reconstruction acts are unconstitutional b/c seditious libel is against the constitution
§  he was invoking the habeus corpus act of 1867 which allowed him to go to the s ct. so then the s ct. would rule on constitutionality of the act and the s ct. would rule the act unconstitutional
§  the courts appellate powers are limited and regulated by the congressional act
§  ** congress can strip a case from the SCOTUS even while it's pending and they stripped the case b/c they knew they were going to lose
§  à congress may alter the substantive rules to be enforced by fed. Courts and may specify the ruels of evidence or procedure to eb applied by those courts, btu congress may not direct the courts how to decide . the exceptions must not destroy the essential role of the s. ct.
·         two types of limits on congressional power to restrict jxd of fed. courts
o  internal limits: limits on congress may be implicit in the grant of power in A III
o  external limits: those that are general constitutional limits on gov't action (due process or equal protection guarantees) b/c they are outside of A III
§  if a law stripped the federal courts of jxd by singling out particular classes of litigants on the basis of their race of other suspect classifications, the law would presumptively be void
·         denials of certiorari are of no precedential value. The court is more likely to grant certiorari in cases 1) involving a conflict between two diff. fed. Appeals courst, 2) in which the highest courts of two states disagree on a mater of federal law, or 3) invovlign important questions not yet settled by Court
·         under the supremacy clause state judges are obliged to strike down state laws that violate the constitution and federal judges are obliged to apply the s ct.'s precedents
·         U.S. v. Klein: after civ war, Johnson said amnesty recipients deemed loyal to get property back, case in fed, new act said recipient of amnesty (via pardons) was conclusive evidence of disloyalty and dismiss suit and stripped fed. court of jxd in compensation cases
o   Court of Claims is an inferior court that congress authorized, so congress has complete control over the organization/existence of the court and may confer or withhold the right of appeal from its decisions