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Constitutional Law I
University of Connecticut School of Law
Becker, Loftus E.

Professor Becker

Con Law

Fall 2012


Article III, Sec 2 sets out federal judicial power, which includes cases:

arising under the Constitution or the laws of the US (federal question)

of admiralty

between two or more states

between citizens of different states

between a state or its citizens and a foreign country or foreign citizen

Supreme Court’s Original v. Appellate Jurisdiction (Art. III)

Ø “Original” Jurisdiction of Supreme Court consists of cases “affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party.”

Ø “Appellate” Jurisdiction – all other cases within the federal judicial power – including diversity cases, federal question cases, and suits to which the US is a party.

How is the Authority for Judicial Review of Executive Actions Derived?

1. Marbury v. Madison 1803

Ø Marbury is important for three reasons: 1) creates authority for judicial review of executive actions; 2) establishes that Congress cannot expand the original jurisdiction of the Supreme Court; 3) establishes authority for judicial review of legislative acts by declaring §13 of the Judiciary Act of 1789 unconstitutional

Ø Holding: Marbury had a legal right to his commission b/c the president had already signed and made the appointment and didn’t matter that it was undelivered b/c just a technicality. The court could issue a writ of mandamus to order the executive branch to approve Marbury’s commission, but it would be unconstitutional because court didn’t have appellate jurisdiction.

Ø TEST: To determine if an act of an official is reviewable by the courts must look at the nature of the act.

o Executive Acts that are not reviewable by the courts:

§ “political in nature

§ respect the nation (not individual rights),

§ discretionary

o Executive Acts that are reviewable by the courts:

§ the legis has imposed,

§ where individual rights are dependant on those acts,

§ ministerial – no discretion

Ø On issue of whether mandamus was the appropriate remedy, Marshall holds that mandamus is appropriate where acts by officers that affect individual rights are involved

Ø On issue of whether the Supreme Court can issue the mandamus, Marshall holds that constitution (Art III, §2, cl. 2) does not allow writs of mandamus to be issued by Supreme Court if acting with original jurisdiction but only appellate jurisdiction. The Judiciary Act §13, which appears to give the court original jurisdiction, is unconstitutional b/c it violates Art. III and congress cannot expand the original jurisdiction of the supreme court

How is the Authority for Judicial Review of State Judgments established?

Rule: Supreme Court can review state judgments that deal with federal law or US Constitution (§25 of the Judiciary Act of 1789 is constitutional). Review is limited to decisions of highest state court available.

Key Examples:

1. Martin v. Hunter’s Lessee 1816: Court held that the Supreme Court has power to review state judgments for the purpose of establishing uniform interpretations of federal law and the US Constitution and to achieve substantial justice. Constitution creates the Supreme Court and gives Congress the discretion whether to create lower federal courts, so if congress didn’t create lower federal courts then the Supreme Court would be powerless to hear any cases except for the few fitting within its original jurisdiction

2. Cohens v. Virginia 1821: Court held that criminal defendants could seek Supreme Court review when they claimed their conviction violated the Constitution. The court reasoned that state courts could not be trusted to adequately protect federal rights b/c in many states the judges are dependent for office and for salary on the will of the legislature.

Limits on the Federal Judicial Power

Three primary limits: 1) interpretive limits, 2) congressional limits; 3) justiciability limits

1) Interpretive Limits

How should the court interpret the Constitution?

Ø Originalists – judges must use the text (particular provision) itself, th9e structure (other places/clauses) of constitution, or framer’s intent to interpret the constitution. If it cannot be found, then it’s for the legislature to decide the rights. Limit judicial discretion in interpreting the Constitution; democracy means rule by electorally accountable officials and not judges

Ø Non-originalists – courts may recognize rights implied in the constitution; constitution should evolve by interpretation and not only by amendment; look at broad ideas (free speech, equality, liberty, etc) rather than specific intent.

Example: Interpreting the Second Amendment:

2nd Amendment: “A well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear Arms, shall not be infringed.”

US v. Emerson (Individual rights)

Silveira v. Lockyer (Collective rights)


Text does not say the right of the “militia” to keep and bear arms but the right of the “people”

“well regulated” suggests that not meant to be unorganized individuals but a regulated army


Location in the constitution – in the bill of rights – suggests individual rights.

Meaning of “people” in 2nd amendment is same as “the right of the people” when used in the exact same phrase in 1st and 4th amendments.

“the people” is a collective term, and when constitution means individuals it says “persons”

“Militia” refers to state military force b/c other provisions of the constitution that contain the word consistently use it to refer to a state military entity, not to the people of the state as a whole

Historical Evidence/ Framer’s Intent

“bear arms” describes a civilian’s carrying of arms…b/c early constitutional provisions or declarations of rights in at least 10 different states speak of the right of the “people to bear arms in defense of themselves and the state”

“well regulated” was understood to be composed of the people generally possessed of arms which they knew how to use per Madison’s Federalist No. 46

Anti-Federalists desired a bill of rights out of concern for individual rights and states rights

Historical research shows that “bear arms” customarily relates to a military function, as contrasted with “possess” or “own” arms.

2nd amendment was enacted in order to calm the fears of anti-federalists that the new fed govt would cause the state militias to atrophy by refusing to allow them to arm themselves…and w/o the amendment states would be w/o the authority to provide them with the necessary arms.


2nd Amendment guarantees to individual private citizens a fundamental right to possess and use firearms for any purpose at all, subject only to limited govt regulation.

2nd Amendment right to “bear Arms” guarantees the right of the people to maintain effective state militias, but does not provide any type of individual right to own or possess weapons.

2) Congressional Limits on Federal Judicial Power

Ø “Exceptions and Regulations Clause” (Art. III, Sec. 2, Cl. 2): “In all other Cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as Congress shall make.”

o Confers original jurisdiction on the Supreme Court in a small number of cases, and gives Congress the power to limit, but not expand, the court’s jurisdiction.

3 Views on the Exceptions and Regulations Clause as a Limit to Court’s Appellate Jurisdiction:

1. Narrow view: congress can only give supreme court more or less jurisdiction to re

. That the decision will not be subject to review by the Executive (Hayburn’s Case) or Congress (Plaut v. Spendthrift Farm).

Ø Hayburn’s Case: congressional act that directed the federal courts to decide revolutionary war veterans pension claims, but stated that the Sec of War could ignore the court’s decisions. Court concerned that the parties might not follow the ruling because Sec could refuse to follow the court’s recommendations. Problem: court’s final decision is subject to revision and thus becomes an advisory opinion.

Ø Plaut v. Spendthrift Farms 1995: Congressional act that class action securities cases filed under federal statutes that were filed prior to the Supreme Court’s 1991 decision could proceed if the case was permissible under the former law. This act violates separation of powers b/c it requires the courts to reopen cases on which a final judgment has already been rendered – turning those decisions into advisory opinions and violating the Art III principle that the federal courts are empowered to “decide” cases.

Ø Declaratory judgments: Are justiciable because they would be justiciable as a request for an injunction.


**Red flags for standing problem: If there is an executive enforcement being requested or if P is relying on a third party and that party is the subject of government action.

Constitutional standing requirements (Congress cannot override)

1. Injury in fact (actual or imminent harm)

Government’s violation of the Constitution is not a judicially recognizable injury. (Allen v. Wright)

Abstract stigmatic injury is not a judicially recognizable injury. (Allen v. Wright)

Aesthetic environmental rights are judicially recognizable injuries BUT the P must use the area affected by the challenged activity and not just an area roughly “in the vicinity.” (Lujan v. Defenders of Wildlife)

i. Compare: Federal election commission v. Akins – finding Congress created a right to information about elections and allowed a broad citizen suit for not releasing information.

Speculative future injury is not enough (City of L.A. v. Lyons – even though P had been injured by chokeholds in the past there was no evidence that he would be in the future so he could not request an injunction to prevent chokeholds)

i. Multiple past occurrences would have been sufficient.

Distance from injury: A P cannot challenge a gerrymandering claim if he does not live in the district. (U.S. v. Hays)

2. Injury must fairly traceable to D’s unlawful conduct (causation).

Causation cannot be too attenuated or depend on the independent actions of third parties. (Allen v. Wright – finding that an unlawful IRS tax exemption was not a cause of racially segregated schools)

3. Redressability: P must allege that a favorable federal court decision is likely to redress the injury.

Where the vindication of the right requires the independent action of a third party, there is no redressability. (Allen v. Wright & Lujan v. Defenders of Wildlife)

Cannot challenge prosecutors to go after child support because even if P wins she cannot necessarily collect child support. (Linda R.S. v. Richard D.)