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Constitutional Law I
University of Illinois School of Law
Pfander, James E.

Judicial Review: The Power of the judiciary to review acts of the legislative and executive branch to determine their compliance with the Constitution and, if the acts conflict, to strike them down under VI, the Supremacy Clause.
Marbury v. Madison-The Supreme Court established the right of judicial review: All laws must correspond to the Constitution. 
Rule: Where the Constitution, as interpreted by the Supreme Court, conflicts with laws enacted by Congress, the SC may declare such laws unconstitutional and invalid.
For a practical matter, Madison won b/c the court could not issue a writ of mandamus here (there was a good chance that it would have been ignored). We must think of the SC as weak at this time in history.
Article III of the Constitution was analyzed by Marshall in a textual manner. 
Reasons why a law repugnant to the Constitution is invalid:
A.      Supremacy Clause: Art VI § 2 – law of the land is “Constitution and laws made in pursuance thereof.”  Marshall interprets “pursuance thereof” as meaning “law not repugnant to the Constitution”.  
a.A more modest interpretation would be “in the manner (process) set forth by the Constitution.” 
B.      Written document:  there’s a reason why framers chose to write certain provisions.  Why would they write restrictions on their jurisdiction if they meant that it could be enlarged?
C.      Either paramount or ordinary: Either the Constitution is paramount in that it overrules any law repugnant to it or it is ordinary in that it can be overruled by any legislative act
a.It doesn’t have to be either one or the other.  The middle ground is that the constitution stands until it is amended.
D.      Purpose: what’s the purpose of our written constitution other than to have a set of laws to be followed
a.Just because its written doesn’t mean it strikes down inconsistent provisions.  There are situations in Canada (not withstanding clause) and Great Britain (Magna Carta) where written documents do not necessarily strike down inconsistent arguments.
Cooper v. Aaron- governors must follow the law laid out by the Court. Thus, a governor (i.e. someone from the executory branch) must uphold the laws that are deemed constitutional by the Courts and have been passed by Congress. Thus, the executive branch cannot pick and choose which laws to follow. Once again, all matters settled by the Supreme Court is law
C. Limits on Supreme Court’s Role:
Justicibility: judges should only resolve disputes between adverse parties.
Supreme Court: is not in the business of issuing decisions as merely advisory opinions. It will only resolve issues of conflict, and only in areas where decisions are final.
Standing Doctrine: Individual claimant must have standing; did he suffer particular injury to pursue the claim in court.
Mootness: Grows out of the standing; circumstances may change to eliminate the conflict.
Political Question Doctrine: Not every Constitutional question is one that is appropriate for the Supreme Court. Some questions should be resolved in the political branches free from judicial oversight. (exp. Foreign relations)
Nixon v. United States – (Nixon felt that a Senate com. was not sufficient to constitute a trail).
Held that a controversy is nonjusticiable.
Rule: The federal judiciary may not review impeachment proceedings, which are the province of the Legislative branch.
Textual: the sole power to try impeachments was given to the Senate; where there is a “textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it.
Structural: Impeachment was created as a check on the judiciary; it would make no sense if the area meant to be checked would be allowed to review the decision.
Three Part Test of Standing:
1. Injury: If the party is not truly adversarial, then the litigation might suffer; a decision can come down that then creates bad law for the future.
2. Fairly traceable
3. Redressable
Supreme Court’s Authority to Review State Court Judgments:
Article III allowed congress to set up lower federal courts and a Supreme Court. Since the inception, the SCt. has had appellate review for federal questions.
Textual: Article I section 10 and the supremacy clause (Article VI) which mandates that the state courts must comply with federal law.
Article III section 2 secures (or attempts to secure) matters of jurisdiction.
Historical: At the time of the framing, the states were not complying with federal law because they did not have to, so Congress would want to give the Supreme Court power to correct the excess of state power.
Structural: States were by definition compelled to protect the interest of their citizens at the expense of others, in contrast, the National government is made up of representatives from the entire nation…so we must attempt to create an even-handed and uniform approach to all the states
Martin v. Hunter’s Lessee- (the extent of the federal judiciary branch and its power or lack thereof over the state courts). States should decide state law. Thus, as a whole, the Supreme Court should not extend to cases pending in state court. The Supreme Court can strike down a state law, but the law will still exist. 
Rule: The SC has appellate jurisdiction over the state courts on issues involving the Federal Constitution, Federal Laws, and treaties. Article 3 of the constitution infers that the Supreme Court is the last resort for all federal questions. By not following this there would be a lack of uniformity in the law.
Justice Holmes’ well known statement: “I do not think the United States would come to an end is we lost our power to declare an Act of Congress void. I do not think the Union would be imperiled if we could not make the declaration as to the laws of the several States.”
Jurisdictional Stripping: With the removal of the power to review, the states may be left to rule in ways that chip away at the law.
Is Jurisdictional

by the states will ensure that Congress heads their desires.
State Taxation:
Structural argument against; there is an imbalance created if one state is allowed to tax a federal institution since the nation will have to provide the money, while only one state benefits.
Marshall: “The power to tax, is the power to destroy.”
Textual argument for; Amendment 10 states “Nor prohibited by it to the States.” – There is no express prohibition of the states power to tax.
U.S. Term Limits, Inc. v. Thornton – (Federal Limits on the Scope of State power)In the absence of a Constitutional amendment, allowing individual states to craft their own qualifications for Congress would erode the structure envisioned by the Framers to create a “more perfect Union.”
National Theory v. States Rights: “We the people of the United States…” Where is the emphasis supposed to be? Is it on United or States?
E. The National Commerce Power
Development of Basic Commerce Clause Concepts:
Gibbons v. Ogden-The state statute in dispute here gives each state (New York) the right to control the commerce within the state. The Constitution states that commerce is defined as with foreign nations, and among the several states, and with the Indian tribes. Thus, Congress has clear control of commerce between the United States as a whole and with the Indians, however, the question is how much control does it have over interstate commerce. 
1.      The court reasons that if Congress has control of commerce “among the several states” it must mean that Congress has control of commerce between and among states.
2.      States cannot grant an exclusive right to in-state companies over steamboat transportation. This helps with the free flow of goods between the states. If the state law is incompatible with the federal law, then this state law is unconstitutional.
3.      Rule: Federal commerce statutes nullify any competing state statues or licenses.
Champion v. Ames (The Lottery Case) – The court here finds that the moving of lottery tickets across state lines is interstate commerce and therefore can be regulated by Congress. More importantly, the Court established the power of Congress to exclude from the channels of interstate commerce commodities and activities found by Congress to be harmful to the national interest. Congress then could overrule state legislation and determine national policies. The dissenters find that this