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

Constitutional Law Spring 2009 — Outline

Part I: The Role of the Courts in Constitutional Interpretation
Chapter 1: Judicial Review and Constitutional Structure
A. Origins and Theory of Judicial Review
1. Scope of Judicial Review
a. Constitutionally-required limits
i. Article III heads of jx
1. Federal courts only have jx over federal questions, cases between two states, admiralty, between citizens of different states, and cases with either foreign nations or citizens as a party
ii. Adequate and independent state grounds
b. Separation of powers and “cases and controversies” requirement
i. No advisory opinions
ii. Standing
iii. Ripeness, mootness
c. Prudential limits
i. No political questions
ii. Abstention (allow states to decide)
iii. Some aspects of standing: zone-of-interest
d. Congressionally-imposed limits
i. Article III “exceptions and regulations” to judicial power
ii. May restrict, but not expand, jx, as long as not violating another guaranteed right.
2. Marbury v. Madison: The Establishment of Judicial Review
a. Marbury v. Madison
· Definitively established the judiciary’s power to declare federal legislation unconstitutional (here, the 1789 judiciary act)
· Court opinion: 3 issues
o Did Marbury have a right to his commission? Yes
o Did Marbury have a judicially-enforceable remedy? Yes
o Was Marbury entitled to mandamus from the Supreme Court? No
§ Judiciary Act gave Court original jx over mandamus over any Federal Officer
§ This conflicted with Constitution
§ Constitution held to be the supreme law of the land
Congress could not expand the jx created under Article III, so Court lacked jx over case.
· Why judicial review: 5 justifications
o (1) Necessary inference from a written C’n, necessarily limitable
o (2) Necessary aspect to judicial role of interpreting law
o (3) Implied from the Supremacy Clause
o (4) Implied from jx of Federal Courts over ‘issues arising under C’n’
o (5) Judges take an oath to support and uphold C’n
· Criticisms of opinion
o Court didn’t apply avoidance principle
o Each branch should be able to interpret the Constitution equally, not just the judiciary should have final say
b. Notes
· Arguments for the utility of judicial review
o Counter-majoritarian role
§ Congress manifests the will of the majority
o Stability
§ Virtue of having one settled meaning
· Arguments against judicial review
o Antidemocratic
§ Not elected
o Entrenched error
· Practical consequences of judicial review

3. Judicial Exclusivity in Constitutional Interpretation?
a. Cooper v. Aaron
· Confirmed that the Court’s power is exclusive when the other contender is a state
· So courts have exclusive power to interpret the C’n
b. Note
B. The Power to Review State Court Judgments
a. Martin v. Hunter’s Lessee
· Power to review state court judgments on matters of federal law (not state law)
· Virginia statute confiscated land of British loyalists: conflicted with peace treaty between US and Britain; reviewable
· Rationales: Three
o Article III doesn’t distinguish between state and federal courts re: interpreting constitution; Supreme Court has jx over all cases “arising under C’n”
o Single nation under C’n, Supremacy Clause
o Need for uniformity in C’l interpret’n
b. Notes

C. The Adequate and Independent State Grounds Doctrine
a. Michigan v. Long
· Court
o Insulates state judicial decisions from Supreme Court review
o Preserves state sovereignty
· Supreme court will presume that a state court that examines both federal and state law issues, is deciding on federal grounds unless the state court includes in its opinion a plain statement of its reliance solely on state law.
o State constitutions usually afford more protection than the minimum safeguards imposed by the Federal Constitution
· Application of the Doctrine: the Supreme Court may still decide that the state law was not independent of federal law or was not an adequate basis for a decision, even if the state court includes the statement in the opinion
o Example of inadequate:
§ Law was created with intent of barring federal claim
§ Unreasonable interference with federal rights
o Example of not independent:
§ Law violates state constitution, as informed by federal constitution
b. Notes
c. Bush v. Gore
d. Notes
D. The Utility of Judicial Review (supp 1-2)
1. Counter-Majoritarian Rule
2. Avoiding the Counter-Majoritarian Problem
3. Stability
4. Entrenched Error
5. Erosion of Constitutional Responsibility by the Political Branches
E. Methods of Constitutional Interpretation
1. Interpretation or Imagination?
a. Calder v. Bull
b. Notes
2. The Textual Method
3. Historical Argument
a. Original Intent
b. Original Meaning
c. The “Vectors” of History
4. Structural Argument
5. Doctrinal Arguments
6. Prudential Arguments
7. Cultural Arguments
8. Constitutional Interpretation v. Constitutional Implementation

F. The Uneven Nature of Judicial Review: Tiered Review and the Unequal Status of Constitutional Claims

Chapter 2: Doctrines Limiting the Scope of Judicial Review
A. Direct Political Controls: Amendment, Appointment, and Impeachment
1. Amendment
a. Noncontemporaneous Ratification
b. Convention Calls
c. Rescission Before Ratification
d. “Unconstitutional” Amendments?
2. Appointment
3. Impeachment
B. Congressional Power to Control the Jurisdic

π (have special solicitude for standing)
iii. Redressability
iv. The significance of the constitutional core of standing
b. Other
i. Significance of the death of citizen standing
ii. Legislator standing
iii. Taxpayer standing?
iv. State standing: special solicitude ? (Mass v EPA^)
1. Parens patrii standing, quasi-sovereign interest
2. Preserving health and welfare of citizens
b. Two Different Article III Standards of Standing
i. Indiviuals: standing to protect own interests, “particularized injury” (including class action)
ii. State: standing to protect welfare of its people, may assert claims of undifferentiated public rights

c. “Prudential” or Non-Constitutional Standing Rules
i. Third-Party Standing (“Jus Terii”)
ii. The “Zone-of-Interests” Requirement
d. Organizational Standing
3. Ripeness and Mootness
a. Ripeness
i. Specific Harm
ii. Anticipatory review
iii. Unenforced criminal laws
b. Mootness
i. Exception: “Capable of repetition, yet evading review”
ii. Exception: Voluntary cessation by the defendant
iii. Exception: Collateral consequences to the plaintiff
4. Political Questions
a. Baker v. Carr: The reigning doctrine. Six Neat Factors
i. Textually demonstrable commitment of the issue to a coordinate political department
a. Constitutionally-driven
b. Separation of powers
c. Coordinate political department: different branch of government (tripartite), not state.
ii. Lack of judicially discoverable and manageable standards for resolving it
iii. Impossible to decide without initial policy determination of a kind clearly non-judicial
iv. Impossible for a court to resolve without expressing lack of respect for coordinate branches
v. Unusual need to respect fait accompli
vi. Embarrassment from multiple decision
b. Note
i. Factors identifying a political question (^)
ii. Source of the Baker factors
iii. Use of the Baker factors
c. Nixon v. United States (Walter Nixon, the judge)
i. Impeached for corruption, bribery, Nixon said this was not a trial.
ii. Issue: is this a justiciable question? No.
iii. Senate has sole c’l authority to try impeachments
d. Note