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Constitutional Law I
University of California, Hastings School of Law
Bhagwat, Ashutosh A.

1. Factions is an inevitable but primary problem of government. Factions less able to command a majority where there is a great diversity of interests
a. Large heterogeneous republics are less susceptible to oppression by factions than small homogenous communities
i. Large numbers of views makes it more difficult to obtain a majority; guarantees more deliberation.
ii. Concern: A small groups of powerful interests will be unduly influential (Undemocratic: Large group of people governed by a small body)
iia. Small active politics controlled by individual citizens less susceptible to such influences
iii. Concern: Hard to get anything done as majorities are harder to form among plurality of interest groups.
iv. Concern: Separation of interests between the People and their representatives.
2. To control abuses, federalists separated government to three independent branches, each with checks upon the others.

Jurisdiction over:
– Diversity jx.
– Cert. from Ct. of Appeals cases.
– Cert. from Highest state courts.
Marbury v. Madison: Supreme Court has the authority to nullify acts by the legislature when it violates the constitution; emphatically the province of the judiciary to say what the law is.
a. Judiciary is the intermediary between the will of the People (the Constitution) and the will of their political agents (Statutes).
i. Reason why Constitution is supreme: it is an Act of the People. Sovereignty rests with the People! Congressional statutes are acts of the People’s agents.
b. The Judiciary is the Authoritative Interpreter of the Constitution
1) To protect unpopular rights
2) Wisdom and intelligence of Lawyers/Judges: best suited for interpreting the Constitution: the difference between will and judgment: mechanical interpretation (no difference between interpreting a K and interpreting the Constitution)
3) Courts are independent and thus, in a better position to make moral decisions. Independent is ok because the court has very little power of its own; inherently constrained by the limits of their institution.
Martin v. Hunter’s Lessee: The Constitution permits the Supreme Court to exercise appellate jx over cases pending in state courts.
a. Framer’s intent: Appellate jx over state court decisi

nly to “cases” and “controversies”.
1. Requirements of Standing: (according to ct from Art. III)
1. injury in fact
2. traceable/causation
3. redress
2. Prudential Requirements for Standing: (from O’Connor’s opinion/can be waived)
1. injury must be your own (no 3dp standing)
2. no generalized grievances (can’t share injury w/ lots of people)
3. must fall into the zone of interest
3. Taxpayer standing: NO Taxpayer standing à everyone gets hurt à the court doesn’t need to get involved in because the political process will self-enforce.

Lujan: Kennedy Concurrence: Congress can grant standing but there are limits: Congress can grant standing only when the injury is concrete; even if the injury is abstract
a. POLICY: Standing doctrine not only limits the judiciary, it limits the way in which congress can use the judiciary to check the executive
i. Protects Executive branch’s independence (Scalia= big fan!)