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Constitutional Law I
University of Illinois School of Law
Meyer, David D.

Ø      Article III: Federal courts shall have judicial power over all the cases and controversies arising under the Constitution, laws, or treaties of the US; of admiralty and maritime jurisdiction; in which the US is a party; between 2 or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state claiming lands under grants of different states; and between a state or citizens thereof and foreign states, citizens, or subject.
Ø      Authority for Judicial Review (Marbury v. Madison)
§         The Constitution is the Supreme Law of the Land
§         CJ Marshall lays out 3 reasons why courts are the last resort for interpreting the Const.
·         1. Article III grants of judicial power on cases arising from the laws of the land
·         2. Article III is specifically directed at the courts
·         3. Judges bound by an oath to uphold and preserve Const. and it would be inconsistent with that oath to enforce/apply unconst. Laws
§         Federal review of state acts was established and exists under the Supremacy Clause of Article VI
§         Jurisdiction of Supreme Court
·         Original- Article II, Sec. 2: ambassadors, public ministers, cases where a state is a party, etc. (Congress cannot restrict or enlarge this)
·         Appellate- in all other cases, shall have appellate jurisdiction (Congress may provide exceptions and regulations)
§         Argument against Judicial Review- Countermajoritarian- 9 people shouldn’t determine the will of the people; that’s what Congress is for
§         Argument for Judicial Review-
·         You need a final decision maker
·         Congress should not be given power to review itself (checks & balances)
·         Framer intent is that judicial review implied to protect the minority
Ø      Limits on Fed Judicial Power
§         Interpretive Limits- how the Const. should be interpreted
·         Pragmatism- If the result appears wrong, then it is. Everything should be considered to figure out what the best result should be
·         Structural- looks at the gist of the language of the Const. rather than what the language strictly says b/c they couldn’t enumerate every possible scenario
§         Justiciability Limits
·         Prohibition of Advisory Opinions
¨       Article II requires a “case and controversy” and therefore bars advisory opinions
Ø      Declaratory judgments – a case and controversy will exist if there is an actual dispute between parties having adverse legal interest. These are OK if the challenged action poses a real and immediate danger to their interests
¨       Does not apply to state courts- some of them allow advisory opinions
·         Standing
¨       P must:
Ø      1. Have an injury in fact (concrete and particularized),
§         Injury need not be economic
Ø      2. Be able to show causation (fairly traceable to D’s conduct), AND
Ø      3. Redressable (capable of being improved through judicial remedy)
¨       These are const. requirements and cannot be waived
¨       Common standing issues
Ø      Congressional conferral of standing- even though Congress cannot eliminate this requirement, they can create a new interest, injury to which may be sufficient for standing
Ø      Standing to enforce Gvm’t statutes- P may bring suit to force gvm’t actors to conform conduct to fed. Statutes, but they can only show their injury and have standing if they can show they were among the class intended to be protected by the statute
Ø      Asserting rights of others- may assert 3rd party rights where he himself has suffered injury and:
§         Third parties find it difficult to assert their own rights (NAACP)
§         Injury suffered by P adversely affects his relationship with 3rd parties (beer vendor allowed to assert const. rights of males under 21 in attacking a state law prohibiting sale of beer to them but not females under 21)
§         No citizenship standing- you cannot claim standing merely b/c you are a citizen and that you claim a violation of fed law is injury
§         Limitation on 3rd party claims- Family Law issues (divorced father cannot bring 1st amend. Claim on behalf of daughter and mother; neither of which wanted the lawsuit)
·         Ripeness and Mootness
¨       Ripeness- Best understood as determination of whether federal court can grant pre-enforcement review
Ø      P must show that harm has occurred or will occur imminently (also a requirement of Standing)
Ø      Usually, a party can only seek review of a law when they are being prosecuted for it (inherently unfair?)
Ø      Primary purpose of the Declaratory Judgment Act was to avoid this
¨       Mootness- P must have a live controversy at all stages of the federal judicial process. If anything happens during litigation to end P’s

general police power- the 10th Amendment reserves to the states those powers not granted to the fed. gvm’t.
§         2. Even if a law is within one of Congress’ enumerated powers, it must be within constitutional limitations to be held valid
Ø      Limits on Congressional Power
§         Article I Sec. 8
§         Bill of Rights
§         10th Amendment
Ø      Congress and the States
§         Article I, Sec. 8 “Necessary and Proper Clause”- grants Congress the power to make all laws necessary and proper for carrying into execution any power granted to any branch of the federal government
·         N&P Clause not itself a basis for power, merely gives Congress the power to execute the other specifically granted powers
·         Congress cannot adopt a law that is expressly prohibited by another provision of the Constitution
§         McCulloch v. Maryland- state cannot tax a federal bank because if they then get all the benefits of the tax by taxing people outside of their state, who are not represented within it- issue of accountability. “The power to tax is the power to destroy.”
Ø      Commerce Power
§         Art I, Sec 8 empowers Congress to “regulate commerce with foreign nations and among the several states, and with the Indian tribes”
§         Initial Era- broad view of Congress’ commerce powers
·         Gibbons v. Ogden- navigation on waters is commerce
·         Commerce “every species of commercial intercourse… which concerns more states than one” and included virtually every form of activity involving or affecting 2+ states
·         Among the States- “intermingled with”- the completely internal commerce of a state is exempt, but the Court made it clear that it could regulate intrastate commerce if it affects interstate activities
·         10th Am. and State Sovereignty limits?
¨       CJ Marshall seems to think that there is very little limit to what Congress can do under the Commerce Clause