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Constitutional Law I
University of Connecticut School of Law
Macgill, Hugh C.

Constitutional Law Outline

Macgill (Spring 2011)

Constitutional Law can be divided into Two Main Areas:

1. Powers exercised by the government

2. Individual liberties protected against actions by the government

Constitution is a plan of government

· Creates national/federal government – executive, legislative, judicial

· Allocates power btwn national gov’t and the states

Two main characteristics of the Constitution

· Separation of powers at the federal level and system of check and balances

o Prevent any branch from becoming too strong

· Federalism

o National unity

o National system that could perform as a single entity

o Benefits of diversity/decentralization (benefit of local gov’t)

o Spit the atom of sovereignty – two levels of sovereignty operating simultaneously over the ppl

o What part of the gov’t gets to take what actions?

§ Whether the particular gov’t branch/body taking the action is constitutionally permitted to do so


We start with the courts b/c they are charged with saying what the Constitution means

Supreme Court exercises the power of judicial review – power of the courts to declare acts of government officials unconstitutional (void or invalid) acc’d to the court’s interpretation of what the Constitution requires

Unless Constitution is amended, or the Court’s opinion changes, the Court’s opinion prevails. Court has the last word on what the Constitution requires.

Constitutional Interpretation

· Text

· History surrounding adoption of the text

· Structure of the Constitution as a whole

· Core purposes underlying a particular provision

· Judicial precedent

A. Judicial Review

Marbury v. Madison Established the power of judicial review

· Relied on two fundamental propositions:

o (1) The nature of the Constitution itself

§ Constitution is fundamental binding law, superior to ordinary legislation, and binding on all government actors

o (2) The Constitution is a species of law and under the Constitution it is the province and duty of the federal courts, and ultimately, the Supreme Court, to say what the law is and what it requires

· Facts

o Marbury brought action under Judiciary Act, read by SC and Marbury, as conferring original jurisdiction upon the SC to hear his case.

· Reasoning

o Court found a conflict btwn Judiciary Act and Art III. Court bound to declare the statute void b/c conflicted with Constitution.

· What are the narrowest readings of Marbury?

o Judicial review could only be exercised in cases involving the jurisdiction or proper jurisdiction of the courts

o Court’s power of judicial review is limited to determining whether government actors were acting in a procedurally proper way under the Constitution

Cooper v. Aaron (1958)

In a case properly before it the fed jud is supreme in the exposition of the law of the constitution, it decides what the const means procedurally and substantively, and its view is binding on all gov’t actors (fed, state and local)

Martin v. Hunter’s Lessee

Issue: SC considered whether to review a state ct judgment involving a matter of fed law

Facts: 2 indiv competing over who owned titled to the land. Ct started in VA state court. 1 claimed titled under VA state law, other claimed title under fed treaty. State ct decided fed treaty did not apply. State ct decided the case under state law à awarded land to group claiming titled under state title. Appeal to SC. SC said fed treaty was controlling and ordered judgment based on the treaty to the other party. SC sent case back to state ct to implement their ruling. VA supreme ct said SC had no review of state ct decisions.

Rule: When a state decides a case involving a matter of fed law, the fed cts and the supreme ct gets to decide whether they decided the fed law issue correctly

Reasoning: (1) strong textual argument that SC has review over state ct cases involving matters of fed law – since state cts can hear fed claims and Art III gives SC jurisdiction over all cases involving fed laws, then the SC can decide all fed and constitutional issues no matter whether they come from state or fed cts (2) history of the Constitution – first Congress passed Judiciary Act of 1789 and provided specifically and unequivocally for SC review of state ct judgments involving issues of fed law. The very ppl closest to adoption of the constitution thought the SC had such review authority (3) policy argument – uniformity of constitutional law (fed law) – if states could decide fed constitutional issues and they were not subject to SC review you could have untenable situation where the constitution could mean 50 diff things in 50 diff states. States and state cts are only sovereign within framework of fed constitution . The question, not the ct, gives the SC the power to review

Activist Court – arguments in favor of expansive judicial review

· SC is insulated from politics – presumably they are not driven by political motivation, self aggrandizement

· Justices are well suited to interpret the Constitution – mode of operation is to use reason, analysis and principle (not expediency)

· Ct is the least dangerous branch – judiciary serves as an umpire – least dangerous b/c no money, no armies, cannot command forces, all it has is its own legitimacy and respect from public

Restrained Court – problems with exercise of judicial review, and it should only be used when absolutely necessary and courts should use narrowest language

· Insulation of judges is a liability – thwart the will of ppl, not responsible at the ballot box. “countermajoritarian” – need clear mistake for ct to intervene

· Judicial review diminishes democracy – dulls the legislators commitment to act in conformity with the Constitution when the ct takes them off the hook for their poor decisions.

Note on the Supreme Court

· The court is very conscious about the nature of it’s role in the governmental scheme – concern abt its legitimacy

· Concern abt its proper role plays as great a role as the actual constitutional question

· Every case b/c abt the ct’s proper role

B. Art. III Limits on the Federal Courts

1. Fed cts (SC) have limited jurisdiction

a. To be in fed ct the matter has to be within an Art III case (fed question, diversity, Etc)

b. “There shall be a supreme ct”

2. Congress has certain powers to limit jurisdiction of fed cts, and some power to limit jurisdiction of SC

a. If congress does not confer full range of Art III jurisdiction on lower fed cts (never has) those cases must be hear in state court

i. Ex: amt in controversy requirement on diversity jurisdiction

b. Congress has some power to control SC

i. NO POWER to abolish the Supreme Ct

ii. NO POWER to add/subtract original jurisdiction – cases in which a state is a party, involving a foreign official

iii. Congress’s exceptions power to alter SC appellate jurisdiction:

1. SC has appellate jurisdiction over Art III cases “such exception, and under such regulations, as the Congress shall make”

2. Congress can: set term, members, budget, aspects of operation

c. Can Congress control the kinds of cases the SC can hear?

i. Ex Parte McCardle (1869)

1. McCardle was arrested and claimed held unconstitutionally by military during Reconstruction. To try to get out of jail relied on fed statute – person could seek writ of habeus in fed court and appeal all the way up to the SC – SC would have jurisdiction to hear whether person

the statute – no cause of action

ii. If you did not get a receipt you have standing to sue

c. Two important limitations

i. Make sure the person suing is within the “zone of interests” Congress meant to protect

1. Ex: Acme finds out its rival, Bargain, was not giving out receipts and saving money. Would Acme have standing to challenge Bargain’s violation? à Did Congress intend to include competitors interests? If Congress uses broad language like “any person can sue” they can argue they are within zone of interests

ii. Congress can go too far in conferring standing in statutes – Congress cannot confer standing on someone to enforce a statute where that person was completely unaffected by the operation of the statute

1. Injury in fact must still be satisfied

2. What if A heard B did not get a receipt. Can A sue to enforce B’s injury? No.

iii. Example = Lujan v. Defenders of Wildlife

1. Plaintiffs challenged a regulation they said violated the Endangered Species Act. Claimed the gov’t regulation made it easier for financing projects overseas in foreign countries, and these projects would have the effect of destroying habitats, or animals, on the Endangered Species Act

2. What was the harm to them under the statute?

3. No standing. All they showed was that one of them had a “someday intention” to travel overseas to the places affected to view the animals. No one had a specific connection to the animal.

4. Have to show connection to the harm.

ii. Causation – show that when you are suing the gov’t, the gov’t is responsible for the harm you are complaining of

1. Harm you’re complaining about is “fairly traceable” to gov’t action

a. Not interested in whether you can trace injury somehow/someway

b. Is the gov’t the proximate cause of injury? Or are there more direct causes of your injury?

iii. Redressability – ct’s order will resolve the problem

1. Relief sought by plaintiffs will solve problem alleged

2. Warth v. Seldin

a. Plaintiffs attempted to challenge exclusionary zoning practice of Pennfield NY. Suburban community next to Rochester NY. Pennfield minimum 2 acre lot. Plaintiffs said it prevented them from moving into Pennfield b/c they were of low and moderate income (racial minorities). No housing they could afford b/c the 2 acre lot rule was exclusionary.

b. Did they have standing?

i. Injury in fact – yes they wanted to live there and they could not (personal, concrete)

ii. Causation? Was their inability to live in Pennfield caused (Fairly traceable) by the zoning statute? Even if the statute struck down, were there developers willing to develop the houses they could afford to live in, in Pennfield? Court said NO à no standing

iii. Ps did not fairly trace the harm of not being able to live in Pennfield to the zoning ordinance. B/c it was probably that there was no developer willing to build the housing they wanted, zoning law not withstanding.

iv. Econ/market forces were prob more cause of inability of ps to find low cost housing in Pennfield, rather than zoning laws