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Constitutional Law II
University of Connecticut School of Law
Spencer, Douglas M.

Constitutional Law
Spring 2015
Judicial Power & Its Limits
SC has jurisdiction over constitutionality of federal laws and state court decisions; can review criminal conviction appeals if convictions might be unconstitutional
General Background on the Constitution
“Unconstitutional roots” drafted at convention to fix Articles of Confederation – decided to throw out and write new Constitution – made it so that they could ratify with Article VII – 9 states needed to agree, 11 states agreed in 1789
Establishes national government
Enumerates & allocates the power of the national government
Checks & balances à Article I, II, III
Controls the relationship between the federal government & states
Amendment X
Protects individual rights by limiting government power
Amendment X
Entrenches the allocation of power & protects rights
4 areas of law where judicial liberalism and conservatism have particular meanings
Liberal – anyone should be able to get into court
Conservative – less people should be able to get into court
Liberal – more federal power
Conservative – more state/local gov power
Separation of Power
Liberal – want people working together
Conservative – Limited role of the court
Individual Rights
Liberal – more individual rights
Conservative – narrows app of rights
Interpreted by 3 Actors
Supreme Court à Article III §§1,2
SC has very narrow original jurisdiction
Congress & ExecutiveàArticle IV, Oath & Affirmation Clause
The People à Preamble
Marbury v. Madison (1803)
Court has right to judicial review & must determine constitutionality of laws
The Supreme Court of the United States has the authority to review laws/legislative acts to determine whether they comply with the United States Constitution.
3 way presidential election, Adams loses, Jefferson wins popular vote, ties with Burr in electoral college, Jefferson wins vote in house à Secretary of State also = Chief Justice, John Marshall
Madison withholds commissions so Marbury is not appointed as Justice of the Peace
Court holds Marbury has right to commission and right to remedy, but holds that they cannot give him the remedy he wants (writ of Mandamus)
No original jurisdiction in this area
Federalist Issues, “It is emphatically the problem and duty of the judicial department to say what the law is”
* Countries with judicial review are usually more stable politically & economically
Article III is the limit of federal jurisdiction, cannot be expanded upon
5 methods of Constitutional interpretation (judges use combo… nothing in constit says how to interp)
Only decide on the text/the parts that were ratified; look only at the meaning of the words in the document; really limits what courts can do/what cases they can take; text is vague/ambiguous—creates confusion; wouldn’t be able to cover privacy, or modern transportation…these issues would go to popular branches
Constitutional Structure/intra-textualism
Nuanced form of textualism; compare multiple uses of words/phrases that appear throughout the constitution; pros – provides clarity and limits judicial discretion & provides source through constitution itself; cons – assumes that constitution is coherent
Thomas/Scalia; limits what courts can do; provides source; provides predictability; consà framers couldn’t foresee everything…no justification for why the preferences of the dead should govern us…hard to know what the framers meant or the intent of the whole group…the constitution was passed undemocratically…it leads to rigid interps of the constit/prevents it from evolving
3 strands
Look at original intent of framers
Original understanding/intent of voters
Original meaning (way originalists use today)
Living Constitution/pragmatism
Allows bending of original doc; believe that amending is way of fixing; promotes modern rational values; results are unpredictable and inconsistent; judicial activism… results depend on whoever is sitting on the court
Precedent & tradition
Premised on view that court should follow tradition; should protect rights if tradition protected rights; stare decisis; fairness – want laws to apply to people equally; ensures continuity; a con is that the court could be required to follow precedent even when it is wrong
DC v. Heller (2008)
DC law prohibited possession of handguns… illegal to carry an unregistered gun and cannot register a gun… 1st time Court strikes law as violation of 2nd Amendment
Subject to certain safety limitations, the 2nd Amendment to the US Constitution creates an individual right to keep/bear arms apart from any military purpose – right to own a handgun in your own home
Stevens DissentàLooks at Madison’s 1st draft, omitted any mention of nonmilitary use; Too much judicial activism today
Breyer Dissentà2nd amend protects militia related gun use, not defense interests; Protection isn’t absolute… be rational
5 themes
Relationship between constitutional and regular law legal/policy– court is just answering a legal question, not making a decision about guns and society
SC is the primary interpreter of the Constitution
Recognizes the different types of interpretation à textualism, originalism, pragmatism, some precedent
Transforming constitutional ideas into rules
Difference between judicial activism and judicial deference
Judicial Review for State Judgments
Martin v. Hunter’s Lessee (1816)
Under Article III of the United States Constitution, the United States Supreme Court has authority to exercise appellate review of state court decisions.
2 people fighting over inheritance of land in Virginia – one claims that he inherited the land, the other claims that the land belongs to VA
After SC makes a decision VA court says that SC didn’t have jurisdiction… SC holds that they do
Cohens v. VA (1821)
Criminal ∆s can seek SC review when their conviction violates the Constitution
VA argues that SC doesn’t have jurisdiction to review a criminal appeal
Rational Basis Review
Strict Scrutiny
State interest
Only needs to be legitimate
Must be Compelling
Laws relation to that interest
Must be rationally related and non-arbitrary
Must be necessary to achieve the purpose
Limits of Federal Judicial Power
3 main limits on federal judicial power
Congressional à Ability of Congress to restrict federal courts
àJudicially Created doctrines limiting what courts can decide
Interpretive àSee 5 methods of Constitutional Interpretation…originalist v. non-originalist
Article III & Justiciability
When suing someone for a Constiutional violation you can bring suit in federal or state court, not both at once
State courts – subject matter jurisdiction
Federal Courts – federal cases & diversity
**** 28 USC §1331 – Rule for subject matter jurisdiction for federal questions…
Created by court – is the given case a justiciable case? – 1 way court has limited it

ciples that could be overridden by Congress
Parties can only assert their own rights; cannot assert rights of 3rd parties
∏ cannot sue as taxpayer sharing a common grievance with all other tax payers
Determines when review is appropriate; weeds out matters where injury is too premature or speculative
**Use ripeness over injury when it is a pre-enforcement review of gov action – when law has been passed, but not yet implemented
Criteria à what hardship will ∏ suffer without pre-enforcement review? Are the issues adequately focused/presented for review?
Easier to quantify economic rights/injuries…courts seem to views these issues as important/ripe
Poe v. Ullman (1961) Presents idea of ripeness, but doesn’t give criteria
Challenge to CT statute banning use of/medical advisement for birth control under 14th amendment – 2 women and doctor file suit – women suffered serious physical health issues when pregnant, could die from pregnancy
Court cannot decide a case where the harm hasn’t occurred – the statute wasn’t being enforced/no one was being prosecuted…in all likelihood the women could have accessed birth control
Abbott Labs v. Gardner (1967)
Congress amends Federal Act to require that prescription drugs be labeled with established name and proprietary name – to show that many generics are the same as prescription drugs
It was ripe because there was a direct/immediate impact – the injury was that the drug companies would have had to reprint everything
Need to evaluate the fitness of the issues and the hardship of the parties; is there a legal issue ready for judicial resolution & is the injury/impact direct and immediate
United Public Workers v. Mitchell (1947)
Constitutionality of Hatch Act – prevented fed employees from being active in political campaigns..
International Longshoremen’s & Warehousemen’s Union (1954)
Before Alaska was a state – resident aliens in US would go back to Alaska during summer – sued to make sure that they could come back to the US– Not ripe because the situation is too hypothetical, remote and abstract
Regional Rail Reorganization Act Cases (1974)
RRs sue the giving of their property to Conrail – SC holds that the case is ripe because the injury is inevitable
Lake Carriers Association v. MacMullan (1972)
Economic right… boat owners prohibited from dumping sewage… state not enforcing law until pump out facilities available… it is ripe because it is inevitable that the facilities will be created
∏ must present live controversy and ongoing injury throughout the proceedings; if injury ends during case, becomes moot; comes up a lot in College admissions cases
Mootness stems from Article IIIs prohibition against fed courts issuing advisory opinions
When a case is moot there isn’t a controversy