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Constitutional Law I
University of Illinois School of Law
Hamilton, Daniel W.


A. Article III never expressly grants fed courts the power to review the constitutionality of federal or state laws or executive actions

B. Central themes:

1. Separation of powers perspective:

a. Determining the courts constitutional authority or deciding Congress’ ability to control federal court jurisdiction involves a separation of powers analysis

2. Authority of state courts:

a. Because state courts are the primary alternative to federal courts, the scope of federal judicial power is crucial in determining the authority of state courts

i. Expansion of federal judicial authority may be defended on federalism grounds as necessary to protect the interests of the federal government from state intrusion

ii. Increased federal court review can be opposed on federalism grounds as usurping power properly reserved to the states

3. Establishment of power of review for federal executive and legislative actions

a. Marbury v Madison (in the last week of his presidency, Adams commissioned 42 new justices of the peace; Marbury did not receive his commission before Jefferson was inaugurated and J instructed his Sec of State, Madison, to withhold undelivered commissions; Marbury sought to compel Madison to deliver commission claiming Judiciary Act of 1789 authorized SCOTUS to grant mandamus in a petition originally filed in the Supreme Court)

b. Holding:

i. Marbury has a right to the commission because all appropriate procedures were followed

ii. Marbury has a right to a remedy because “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury”

1. The Court can give Marbury a remedy against the Executive Branch

i. “the Govt of the US has been emphatically termed a govt of laws, not of men”

ii. i.e. not even the President is above the law

iii. distinguishes between minesterial duties and political duties

a. Court can order Prez to do minesterial duties when the rights of an individual are involved; when Prez has a legal duty to act or refrain from acting (e.g. deliver the commissions; turn over subpoenaed tapes)

b. Court cannot order Prez to do political matters left to executive decision (e.g. sign a treaty, veto a law, appoint someone to office)

iii. Judiciary Act authorizes Mandamus but Judiciary Act is unconstitutional

1. Article III’s enumeration of original jurisdiction would be “mere surplusage…entirely without meaning” if Congress could add more areas of original jurisdiction


iv. Supreme Court CAN declare laws unconstitutional

1. The Constitution imposes limits on governmental powers and these limits are meaningless unless they are subject to judicial enforcement

2. It is inherent to the judicial role to decide constitutionality of the laws

i. “It is emphatically the province and duty of the judicial department to say what the law is”

3. “The powers of the legislature are defined and limited and that those limits may not be mistaken or forgotten, the Constitution is written” (written = binding for Marshall)

4. Judges take an oath of office to uphold Constitution and would be a violation of their oath to uphold unconstitutional laws

c. Two assertions of authority:

i. Court can give orders to the President that he is bound to follow and

ii. Court can throw out legislation that does not adhere to the Constitution.

d. Does the SC have the final say? (endlessly debated question)

i. If it’s not the final say then what kind of say is it?

ii. Maybe an equal claim to interpret the Constitution as the other branches

1. PROS:

i. There ought to be a last word, there should be a last word, and out of the choices the SC is the best option

2. CONS:

i. It is anti-democratic because they are not elected

ii. Constitution is silent on the question of judicial review

iii. Constant worry that the court will be out of step with democratic notions of the time because they are appointed for life

iv. Impoverishes political discourse – big policy debates that we would have had in our democratic process are avoided and they simply say “the court will deal with that” and that the court can’t really deal with public problems without going through the sausage making process of creating legislation that actually addresses the problem

4. Establishment of review of state court decisions

a. Martin v Hunter’s Lessee (US and England had entered into treaties protecting rights of Brits who owned land in the US; Hunter claimed VA had taken the land before treaties came into effect so Martin did not have valid claim to property; VA Appeals ruled in favor of Hunter)

i. Holding: SCOTUS reversed Appeals; federal treaty was controlling; VA Appeals tried to say SCOTUS lacked authority to review state court decisions

1. (J.Story) Because Constitution gives Congress discretion to create lower fed courts (or not) if they decided not to and SCOTUS would be powerless to hear any cases except the limited ones of original jurisdiction if it could not review state court decisions

2. Also, Constitution recognizes that state bias may exist and review by an unbiased court is necessary to ensure uniformity of the law

b. Cohens v Virginia

i. Marshall reaffirmed constitutionality of section 25 of Judiciary Act which gave SCOTUS authority to review state court judgments

ii. State courts often could not be trusted because the judges are elected and depend on the legislature for “office and salary”

iii. Criminal defendants can seek Supreme Court review when they claimed their conviction violated the Constitution


A. INTERPRETIVE LIMITS (major theme in all of ConLaw – originalist v non-originalist)

1. ORIGINALIST: if Constitution is silent, it is for legislature to decide the law

a. Constitution should evolve only by amendment

b. Court’s discretion in interpreting the Constitution should be narrowly circumscribed to limit the judicial power

c. If it doesn’t have a fixed meaning it’s not a constitution at all

d. Democracy means rule by electorally accountable officials and judicial review by unelected federal judges is inconsistent with this

i. Permits unelected judges to overturn the decisions of popularly accountable officials

e. View that “judges deciding Constitutional issues should confine themselves to enforcing norms that are state or clearly implicit in the Constitution”

i. E.g. it says “he” when referring to the President so it would be unconstitutional to elect a woman as Prez

2. NON-ORIGINALIST: Constitution should evolve by interpretation, not only by amendment

a. Constitution needs to evolve to meet the needs of an advancing society and new ideas of what equality is


1. Debate over Exceptions and Regulations Clause

a. Supporters of Jurisdiction Restriction: Clause provides Congress with broad powers to remove matters from SC’s purview

i. Framers intended such congressional control as a check on the judiciary’s power

1. Evidenced by the first Congress not vesting SC with appellate jurisdiction over all types of cases and controversies enumerated in Article III

ii. Cite McCardle as precedent

1. It establishes that Congress may prevent SC review of constitutional issues

2. Fact that Congress intends to change the substantive law is irrelevant because of Court’s statement that they are not at liberty to inquire into motives

iii. Distinguish Klein by saying it only establishes that Congress may not restrict SC jurisdiction in a manner that violates other constitutional provisions.

1. Congress is always entitled to amend statutes and thereby determine substantive outcomes

2. What distinguishes Klein is 2 things:

i. In the statute at issue Congress was redefining the president’s pardon power therefore was an infringement on the executive’s power under the Article II

ii. It can be argued that statute deprived people of property without just compensation or due process

3. Thus despite the broad language in Klein the decision does not support the general proposition that Congress may not restrict jurisdiction in order to direct substantive outcomes, only that Congress cannot limit SC’s jurisd in a manner that violates other constitutional provisions

b. Opponents of Jurisdiction Stripping: Congress is limited in its ability to control SC jurisdiction

i. Argument that “Exceptions” is meant to modify word “Fact” because Framers were concerned about SC’s ability to overturn fact finding by lower courts, especially when done by juries

1. So Congress can create exceptions to when SC can review matters of fact but not of law

ii. McCardle is easily distinguished from contemporary attempts to prevent SC review of topics such as school prayer and abortion

1. In McCardle, even after repeal of the 1867 Act, SC still had authority to hear McCardle’s claims under the 1789 Judiciary Act which allowed fed courts to grant writs of habeas to federal prisoners

i. In other words, the Court was considering the constitutionality of a statute that did not completely preclude SC review, only one basis for it

iii. Klein supports their argument that Congress cannot restrict SC appellate review in an effort to direct particular substantive results

1. By analogy it would be unconstitutional to restrict SC jurisdiction in something like abortion or school prayer

c. Yet another argument:

i. Even though Congress has power to limit jurisdiction, this power cannot be used in a manner that violates the Constitution

ii. Opponents of jurisdiction restriction content “congressional preclusion of SC review of particular topics would violate other parts of the Consti

action to those who did not have one before

c. STANDING: who can bring a case

i. determination of whether a specific person is the proper party to bring a matter to the court for adjudication (courts can bring it on their own and it may be challenged at any point)

ii. SC says it is the most important justiciability requirement

iii. “By restricting who may sue in federal court, standing limits what matters the judiciary will address and minimizes judicial review of the actions of other branches of govt”

1. Inquiry is especially vigorous when reaching the merits of a dispute would force it to decide whether an action taken by one of the other two branches is unconstitutional

2. Focuses direct attention on the question of what is the proper place for the judiciary in the American system of govt

iv. Serves judicial efficiency by preventing a flood of lawsuits by those who only have an ideological stake in the outcome

v. Is said to improve judicial decision making by ensuring there is a specific controversy before the court that that there is an advocate with sufficient personal concern to effectively litigate the matter


1. Constitutional:

i. Injury: P must allege that he or she has suffered imminently or will imminently suffer an injury

ii. Causation: P must allege that the injury is fairly traceable to the D’s conduct

iii. Redressability: P must allege that favorable fed court decision is likely to redress the injury

2. Prudential:

i. Party may assert only his or her own rights and cannot raise claims of third parties before the court

ii. A party may not sue as a taxpayer who shares a grievance in common with other taxpayers

iii. a party must raise a claim within the zone of interests protected by the statute in question

vii. Massachusetts v. EPA (STEVENS – 2007 – now the law of the land on standing)

1. Issue: Whether a state govt has standing to sue a federal agency for its failure to promulgate regulations to deal with the problem of global warming

2. Holding: yes, Mass has standing to sue and EPA must either promulgate regulations or justify not doing so

3. Reasoning:

i. EPA’s refusal to regulate presents risk that is both actual and imminent

a. Uses injury standard from Lujan: ” concrete and particularized injury that is actual or imminent”

ii. Substantial likelihood that judicial relief will prompt EPA to take steps to reduce that risk

iii. “[EPA’s] argument rests on the erroneous assumption that a small incremental step, because it is incremental, can never be attacked in a federal judicial forum. Yet accepting that premise would doom most challenges to regulatory action. Agencies, like legislatures, do not generally resolve massive problems in one regulatory swoop”

iv. states have special standing because states have special solicitude: because they surrender some of their sovereignty (can’t invade another state or sign a treaty with another country)

v. irrelevant that risks are “widely shared” or may take time to redress


i. Is not particularized injury because they are seeking redress for people in general

ii. Also no causation because it appears India and China are causing it (any reduction by US would be overwhelmed many times over by other countries)

a. If we didn’t cause it we cannot fix it and the majority never shows that this regulation will provide redress to MA in particular

iii. There are problems with the causal connection between greenhouse gases and the specific injury and that the promulgation of such standards would redress that injury

d. RIPENESS – involves when the litigation can occur

i. is a similar doctrine that prohibits fed courts from exercising jurisdiction over a case until an actual controversy is presented involving an injury that is real and immediate

1. distinguished from standing in that the injury has not yet occurred