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Constitutional Law I
University of California, Hastings School of Law
Little, Rory K.





• Theories of Constitutional Interpretation

• Originalism: looks to the original intent of the framers in interpreting the Constitution

• Living Constitution: the text should be applied but in a way it adjusts to the current problem

• The Origin/Purpose of the Constitution

• The Federalist No. 10: A large society under a representative form of government would break and control the violence of a faction adverse to the interest of a community.

• The Federalist No. 51: “If men were angels, we wouldn’t need government.” People who run the government are ambitious and will try to further their own interest. Federalism and Checks/Balance system in the Constitution will provide security.


• Authority for Judicial Review

• It is the Supreme Court’s job to say what the law is. The interpretation the Court gives is considered Supreme.

• Marbury v. Madison (1803): The Federal Judiciary Act provided that the Supreme Court has original jurisdiction to issue writs of mandamus against federal officers. Madison asked the Court to issue a mandamus per this Act, when the Constitution only allows for appellate jurisdiction. The Court concluded that Congress arguably exceeded the scope of the Constitution’s grant of Supreme Court original jurisdiction.

• Cooper v. Aaron (1958): State of Arkansas failed to comply with the order requiring desegregation. State argued that they were not bound by Brown (federal) case. The Court stated Marbury v. Madison established that the federal judiciary is supreme in the exposition of the law of the Constitution. The Constitution is the supreme law of the land that has a binding effect on the states.

• The Supreme Court has final authority over all Constitutional questions, no matter where they come from (i.e. state courts, other branches of government). Article II grants the federal courts jurisdiction over “all cases arising under the Constitution.”

• Other Branches

• Marbury v. Madison(1803): The Court has the power to review acts of other branches of the federal government – in this case, the act of Congress.

• State Courts

• Martin v. Hunter’s Lessee(1816): Virginia Court of Appeals denied the Supreme Court’s instruction to enter judgement for Martin, arguing that the Judiciary Act was unconstitutional insofar as it extended the appellate jurisdiction of the Supreme Court to the Virginia state court. Supreme court held that the court of US can, without question, revise the proceedings of the executive and legislative authorities for the states, and if they are found to be contrary to the Constitution, may declare them to be of no legal validity.

• Cohen v. Virginia(1821): Court affirmed Martin in the context of review of state criminal proceedings. Here, the Supreme Court held that the Court could exercise jurisdiction over decisions of the state courts in criminal cases and in cases in which the state was a party.

• See also, Cooper v. Aaron

• Three Sources of Judicial Decisions: Text, “Representation-Reinforcement,” and Natural Law

1. Text

• District of Columbia v. Heller (2008): Washington DC passed a statute prohibiting possession of usable handguns at home. The Court looked at the text of the second amendment to determine whether or not “right of the people” to bear arms meant “individual rights” or “collective rights.” The majority concluded that it was an “individual right” after looking at other phrases in the Constitution that used the same phrase, dictionaries, legal history, and post-ratification history. Therefore, Washington DC’s statute was unconstitutional.

2. “Representation-Reinforcement”: the central idea is that the judicial role is to make up for defects in the ordinary operation of representative government; the source of judicial decision is a breakdown in political process.

• Congress can create laws that are “necessary and proper.” “Necessary” means to make laws which shall be necessary and proper for carrying into executions. It does not mean “absolutely necessary.”

• MuCulloch v. Maryland (1819): The Court held that the Congress has the power to incorporate banks under the necessary and proper clause and that states could not tax the federal bank because power to tax comes from representation but the federal government is not a constituent of the state. Broad interpretation of power/Constitution. “Let the end be legitimate, let it be within the scope of the Constitution and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and sprit of the Constitution, are constitutional.”

3. Natural Law

• Calder v. Bull (1798): Justice Chase believed that even though there is no “natural law” explicitly stated in the Constitution, general natural law principles trump mere legislative acts (aka. “unwritten Constitution”). Emphasis on right answers to moral questions. Justice Iredell responded that the very fact of a written Constitution is authority against the possession that courts may call on principles of natural justice.

• Limits on Judicial Power

• Internal Limits: Cases and Controversies – the “passive virtues” of the federal courts — The Juticiability Doctrine: all judicially created limits (Constitutional + prudential limits)

• No Advisory Opinions

• Standing: whether a specific person is the proper party to bring a matter to the court for adjudication

• Value of the Standing Doctrine: separation of powers.

• Allen v. Wright (1984): IRS gives tax break to all schools, even the ones that are still racially segregated. P claims that IRS should not give tax exemptions to school who segregate. The government says Ps have no standing.

• Constitution: Article III

• Injury: suffered of imminently will suffer an injury

• Personally suffered injury

• Lujan v. Defenders of Wildlife (1992): Ps tried to enforce the Endangered Species Act to actions taken in foreign nations. The Court held that Ps lacked standing because they could not show sufficient likelihood that they would be injured in the future by the destruction of the endangered species abroad.

• Causation and Redressability

• Causation: injury must be fairly traceable to D’s conduct

• Allen v. Wright: IRS tax exemption to segregated school. The Court denied standing due to lack of causation though they stated an injury. From the perspective of IRS, Respondents’ injury was highly indirect and were results from the independent action of some third party not before the court.

• Massachusetts v. E.P.A. (2007): the Court held that MA could sue to challenge the Environmental Protection Agency’s failure to promulgate rules to deal with greenhouse gas emissions even though it was uncertain how much such regulations would decrease the problem of global warming.

• Clapper:

• Prudential Limits on Standing

• No third party claim

• Elk Grove Unified School District v. Newdow (2004): P sued school for violation of first amendment for making his daughter say “under God.” The Court held that he had no standing because he was divorced to the girl’s mother, who has the legal authority.

• Court in Newdow tries hard not to decide the case on its merits. Court’s attempt to display the passive virtues to avoid a contestable constitutional ruling that would divide the nation.

• No generalized grievances: prevents standing when the asserted harm is

nstitutional government’s orders since RI government violated the republican form of government clause. The Court held that this was a political question and that Congress has the power to decide what government is the established one in a State.

• Basis for the Political Question Doctrine

• As a Constitutional Limit: a “textually demonstrable commitment” of the issue to one of the political branches

• Impeachment: Nixon v United States (1993): Nixon, a former district judge, challenged his impeachment process by the Senate. The Court held it was a political question because the impeachment clause in Article I, §3 accorded the Senate the “sole” power to try impeachments.

• But see, Powell v. McCormack: Powell denied a seat from the House of Rep because he wrongfully diverted House funds. He argued that he met all the requirements in the Constitution. The House argued that they had the power to set their own requirements for choosing their members under the Constitution. The Court held that this was an interpretation question and thus was not a political question. The case did not “involve a lack of respect due to a coordinate branch of government.”

• As a prudential limit: if it reflects the Court’s concerns about preserving judicial credibility and limiting the role of an unelected judiciary in a democratic society

• Ripeness & Mootness

• Ripeness: premature for review, because the injury is speculative and never may occur

• Mootness: an actual controversy must exist at all stages of federal court proceedings; requisite person interest must continue

• Rationale for the Justiciability Doctrine

• Separation of power

• Conserve judicial resource

• Improve judicial decision making: only hear cases arising from adverse parties that are capable of resolution

• Promotes fairness: adjudicating rights of those who are not parties is unfair

• External Limits — the power of “political” controls on the Supreme Court

• Constitutional Amendment Power: the principal issue here is whether and to what extent those mechanisms of control affect the perceived tension between the power of judicial review conventional notions of representative democracy.

• Jeffersonian view: the Constitution should be amended every generation

• Madisonian view: the Constitution promotes stability and amendment should not be easy.

• Presidential Appointment Power: Members of the Supreme Court are appointed by the president and subject to advise and consent of the senate.

• But, limit on this power thru life tenure: once appointed, judges are tenured for life. Its purpose is to promote judicial independence.

• Congressional Impeachment Power: The device of impeachment has not been used as means of obtaining political control over the Supreme Court.

• Controlling sitting judges; informal mechanisms and self-imposed limits: The Supreme Court has exhibited reluctance to make decisions that depart too sharply from what it perceives as a political consensus.