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Constitutional Law I
University of Illinois School of Law
Moore, Michael S.

I.                   Supreme Court Authority and Role
A.    Marbury v. Madison-
1)      Judicial Review- Marshall ruled the Judiciary Act of 1789 (congressional act that enlarged SC’s original jurisdiction) was unconstitutional. This strategically  enlarged the SC power by granting them Judicial Review, although Marbury didn’t get his commission.
2)      Article III enumerated its original jurisdiction and hence Congress cannot enlarge it.
Article 3 section 1: The Supreme court has original jurisdiction in all cases affecting ambassadors, other public ministers and counsuls, and those in which a state shall be a party.
a)      “Great Power” of judicial review:
i.                    bindingness of Sup. Ct. On other citizens in other cases
ii.                  bindingness of Sup Ct. on other branches of government
B.     Judicial Review- Marshall’s Argument
1)      Authoritative argument- Constitutional Interpretation-
a. “Article III arising under constitution” àjudicial review power.
b. Article VI- Constitution, and the laws of the US, all treaties, are the supreme law of the land, and the judges in all states are bound by it àSupreme Law of the Land.
C.    Authority for Judicial Review of State Court Decisions
1)      Martin v. Hunter’s LeseeeàSC has authority to review state court judgments.
2)      Cooper v. Aaronà In dicta, they said that the state could not ignore Brown v. Board. Supreme court decision applies to all like cases- stare decisis.
D.    Limits on Judicial Power-Justiciability Doctrines:
·         Constitutional Requirements- arise from Article III of the constitution- cases or controversies.  
·         Prudential requirements- For prudent judicial administration.(although constitutional, not prudent.) Congress can only override prudential restrictions.
1)      Article III Cases and Controversies Doctrine
** reasons- 1) SOP- restrict judicial review 2)Judicial efficiency-avoid flood of cases 3) sufficiently adversarial 4) ensures people will only raise genuine rights.
a)      Standing- Whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.
1.      Plaintiff must PERSONALLY suffer an injury or will suffer imminently. (must be real and immediate, not conjectural or hypothetical).
a)      Actual or imminent
b)     Concrete and Particular
i.                    What does it mean that a plaintiff must personally suffer an injury?
ii.                  What injuries are sufficient for standing?
2.      Proximate cause- trace injury to D’s actions. It cannot result from the independent action by someone that is not before the court.
3.      Redressable by Court remedy-
Rule: Desire to use or observe an animal species, even for purely aesthetic purposes, it a cognizable interest for purpose of standing.
Rule: A plaintiff raising only a generally available grievance about government claiming only harm to his and every citizen’s interest and seeking relief that no more directly and tangibly benefits him than it does the public at large does not state an Article III case or controversy.
Rule: For environmental cases, the plaintiffs must use the adversely affected lands to show standing. Must be an individual protected right.
Three prudential requirements:
1.      Party must assert only his or her own rights and cannot raise claims for 3rd parties. (some exceptions- close relationship, inability to sue, overbreadth doctrine).
2.      No generalized grievances (arguably a constitutional req)- P may not sue a taxpayer who shares a grievance in common with all other taxpayers.(exception- the establishment clause challenge.)
3.      P must raise claim with the zone of interests protected by statute.
RULE: Congress has the power to confer standing by defining injuries and articulate chains of causation to give rise to a case or controversy.
b)      Ripeness- Dismissal for non-ripeness occurs when a controversy is not far enough along to require adjudication. This focuses on whether or not the injury has occurred yet. (overlaps with standing sometimes). This often comes into play in the context of declaratory judgment- Factors: 1) how significant is the harm to denying judicial review and 2)probability of occurrence- how speculative and uncertain.
c)      Mootness- an actual controversy must be extant at all stages of review, not merely at the time of the filing. (Examples- crim defendant dies during appeals; challenged law repealed; settlement.)
**voluntary settlement does not justify vacating a lower court opinion- potential for abuse.
**exceptions to mootness- criminal that has already served sentence but still faces adverse consequences; wrongs capable of repetition yet evading review- roe v. wade).
d)      No Advisory Opinions- opinions on the legality of executive or legislative action that do not involve an actual case.
2)      Political Question Doctrine – Prudential strand- unless textual commitment.
a)      Textual Commitment to non-judicial branch
1.      Which text should USSC interpret—guaranty clause or equal protection clause?
2.      Does guaranty clause, by its text, commit to another branch of govt whether or not a state has a republican form of govt?  Who guarantees that form of govt?  USSC says legislature, but text says “United States,” so who is US?  Is congress the US?
RULE: This text doesn’t award the power solely to congress—USSC can decide who the government is
3.      What about equal protection clause?  Text says Congress has power to enforce it, but is that exclusive?  It’s never been interpreted that way
b)     Prudential considerations
i)        Major question is of prudence—will hearing the question lead to inter-governmental conflicts—if so, ct will need to be more prudent
ii)      Even if text doesn’t commit the question to another branch, does prudence dictate that the ct should just back off?
iii)    Distinguishing b/w whether political or prudential is messy, so look at it through
Brennan’s Political if Test:
1.      Challenged action is that of co-equal branch
·         Looks like they’re considering state, so USSC doesn’t have to be prudent

on from hearing a habeas corpus appeal from federal courts. The SC ruled it had jurisdiction to consider whether it had jurisdiction and then decided they didn’t have jurisdiction.
B)    Internal Limits to Exceptions Clause- 
·         U.S v. Kline- Unconstitutional to strip the court of the power to decide a case by enacting legislation to decide the case. The core functions of the Supreme Court “exception of the exceptions clause.”
·         Plant v. Spendthrift- The court declared unconstitutional a federal law that overturned a SC decision dismissing certain cases.
C)    External Limits:  those derived from constitutional provisions other than Art III
a.      Free speech
                                                                                      i.      Bill of rights still applies, so congress can’t bar USSC review of classes of litigants based on their race, political beliefs, etc
b.      Free exercise of religion
                                                                                      i.      HYPO:  if congress said only Christians can bright suits to USSC, that probably wouldn’t stand.  You need to take into account all sections of the constitution & if the congressional limitation opposes other constitutional provisions, the limit won’t work
c.       Equal protection
                                                                                      i.      Congress must provide equal protection, so can’t bar USSC from hearing cases from certain classes of people
                                                                                    ii.      The entire constitution externally limits congressional restrictions on USSC power.
II.                Nation and the States
Constitutional Sources:
Article I § 8 Necessary and Proper Clause: “All laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers  vested by this constitution, in the government of the U.S., or in any department therof.
10th Amendment: the powers not expressly delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the States respectively, or to the people.
Article 1 § 10: expressly bars states from treaties, coining money, granting titles of nobility, and requires congressional consent before states may impose customs duties, interstate compacts, or engage in war. 
Federal government’s power- explicitly enumerated or implied under the necessary and proper clause.