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Constitutional Law I
University of Illinois School of Law
Solum, Lawrence B.

1)      Constitution’s function
o        Divides power vertically between fed & state gov’t (Federalism)
·         Article I § 1, and 10th Amend: limit power of Congress to that expressly granted
§         Debate about whether 10th Amend reserves zone of exclusivity to the states
·         Supremacy Clause: applies to statutes and treaties, not just Constitutional provisions
·         Dormant Commerce Clause: limits ability of states to impose burdens on each other
·         Fed gov’t can only act when authorized by Constitution, but states can do anything not prohibited by Constitution
o        Divides power of Fed gov’t horizontally between 3 branches (Separation of Powers)
·         Generally, more than one branch must agree for a law to have effect
o        Protects individual liberties
·         Privileges and Immunities Clause of Art IV
·         Bill of Rights: initially applied only to fed gov’t; most parts “incorporated” via 14th Amend
·         Fugitive Slave Clause and other slave owner rights
·         9th Amend: does not limit the protected individual rights to those enumerated
§         But: Carolene Products n.4
·         Only applies to “state action,” not private citizens
§         But: 13th Amend
2)      Why a Constitution?
o        Difficult to change, unlike a statute
·         Protects against the tyranny of the majority
·         Society decided to tie its own hands to protect itself from its own weaknesses
o        Abstract language everyone agrees on and wants to be governed by
·         Freedom of speech: no one can define but everyone agrees is a good thing
3)      Ratification
4)      Interpretation
o        Marshall: “We must never forget it is a Constitution we are expounding . . . . “ McCulloch v. Maryland
o        When can some Constitutional rights be interfered with by gov’t?
·         Freedom of speech, but no perjury/defamation
·         Equal protection, but must have low income for welfare
o        Originalism
·         Only rights express or clearly intended by framers should be found by the Court
·         Only amendments can be used to evolved Constitution – not judicial review
·         Interpretation should focus on norms at time of ratification
·         Interpreting the Constitution is by definition determining its original meaning
·         No activist judges should be allowed to overturn decisions by democratically elected officials
o        Non-originalism
·         Judicial review is necessary to meet changing needs of society because amendment process is much too slow and difficult
·         There is no single “framers’ intent” to discover – writers, ratifiers, etc.
·         What framers would think of today’s circumstances is impossible to know
·         Constitutions are meant to be reinterpreted in light of the changing times
5)      Who should be the authoritative interpreter of the Constitution?
o        In practice, all three branches must interpret Constitution every day
o        In case of disagreement, who is the authoritative interpreter?
·         All three branches over the entire Constitution?
·         Each branch over a separate part?
·         One branch over the entire Constitution?
·         There is no single right answer…
The Federal Judicial Power
1)      Article III
o        After Articles of Confederation, everyone agreed that a federal judiciary was necessary, but not everyone agreed that lower fed courts were necessary
·         Some thought SCOTUS review of state court decisions was enough
·         Some distrusted state court willingness to uphold federal law, and therefore SCOTUS would have too many cases to review by itself
·         Eventually the framers left it to Congress to decide, and they created lower courts right away
o        Fed judges have lifetime appointments “during good behavior” with no decrease in compensation
o        Fed court jurisdiction limited to 9 categories of “cases and controversies”
·         Essentially separated into federal questions and diversity
·         Original jurisdiction has been delegated to lower courts
·         Congress may further limit jurisdiction
o        Trial by jury for all crimes except impeachment
o        No express power of judicial review
2)      The authority for judicial review
o        No express power of judicial review
·         Assumed to be a function of judiciary? Assumed not to be? “Council of Revision” rejected…
o        Marbury v. Madison
·         Marshall’s three issues:
§          Does Marbury have a right to the commission?
¨       Yes – appointment is made and commission is complete when president signs and secretary of state affixes seal. Delivery is merely a custom.
§         Do laws afford Marbury a remedy?
¨       Yes – for every violation of a legal right, courts can provide a remedy at law. Political acts within the discretion of the president, however, are not subject to legal remedies (veto, appointment to office, etc.). This is a legal right, not a political right, since the appointment has already been validly made (as proved in question 1, above) and the current case only involves compelling Madison to deliver the commission to Marbury. We are a nation of laws.
§         Can SCOTUS issue the remedy in the form of mandamus?
¨       Yes and No:
                                                                                                                   a.            SCOTUS can issue a remedy, since this is a matter concerning an individual’s legal rights (the right to the commission, which is valid as proved in question 1, above) and not a political act (veto, appointment to office, etc.). This is the part of the opinion that set up judicial review of executive actions of a legal nature (but not actions of a political nature)
                                                                                                                  b.            SCOTUS cannot issue this mandamus, however –
i.         SCOTUS has statutory power to issue mandamus on original jurisdiction per Judiciary Act
1.       Chemerinsky questions this analysis and suggests that a more plausible reading of the Judiciary Act limits the power to issue mandamus to cases that are otherwise within jurisdiction
ii.       SCOTUS does not have Constitutional power to issue mandamus on original jurisdiction, however, because Congress cannot enlarge the enumerated grant of original jurisdiction made to SCOTUS by the Constitution, and that enumeration does not include mandamus. Otherwise, the enumeration would be “mere surplusage”
1.       Chemerinsky suggests that perhaps the enumeration of original jurisdiction is a floor, rather than a ceiling, and therefore Congress could grant more but not restrict SCOTUS to less original jurisdiction than the enumeration
2.       Regardless, Marshall’s reading is still considered good law today – Congress cannot enlarge fed judicial jurisdiction
iii.      SCOTUS cannot follow an act of Congress that is unconstitutional, but rather SCOTUS has the power to declare a law unconstitutional and therefore void.
·         Judicial review after Marbury:
§         SCOTUS can declare legislative laws unconstitutional and therefore void
¨       Constitution controls any legislative act repugnant to it – otherwise, the Constitution is not really a Constitution if ordinary acts of legislature can be enforced that are contrary to it (see “Why a constitution,” above)
¨       “It is emphatically the province and duty of the judicial department to say what the law is.” Meaning: If two conflicting rules apply to a case, the courts must decide which one governs. Constitution always wins – see Supremacy Clause.
¨       SCOTUS power to decide “cases” arising under the Constitution implies that the Constitution can’t be ignored when deciding the cases.
¨       Judges take an oath which they would violate were they to uphold an unconstitutional law
¨       Supremacy Clause lists Constitution first, and next only those laws “made in pursuance of the constitution”
§         SCOTUS can review executive acts of a legal nature but not a political nature
¨       When an individual’s rights depend on the performance of a specific duty assigned by law, the individual has a right to resort to courts of law for a remedy.
·         Solum – possibilities for determining constitutionality
§         State nullification – the states can agree that a law is unconstitutional and tell gov’t about it
§         Popular constitutionalism – if Congress passes unconstitutional laws, the people wi

                                                a.            Exceptions:
i.         Where 3d party is unlikely to be able to sue
ii.       Close relationship between plaintiff and 3d party
iii.      Overbreadth Doctrine – 1st Amend abridgments only
iv.     Standing for Associations – injuries to its members
¨       Plaintiff may not sue as a citizen or taxpayer who shares a grievance in common with all other taxpayers
                                                                                                                   a.            Prevents people from suing gov’t because they don’t like what it’s doing or think it illegal/unconstitutional, but have suffered no specific injury them self
                                                                                                                  b.            But: if a person can allege a violation of his constitutional rights, he can still sue even if everyone else has the same violation. 
¨       Plaintiff may raise a claim only if plaintiff is arguably within zone of interests protected by statute in question
                                                                                                                   a.            Pretty relaxed standard that is applied only rarely and inconsistently
o        Ripeness
·         A matter is premature for review, and therefore not “ripe,” when the injury is speculative and may never occur. 
·         Injunctions and declaratory judgments are justiciable, however, provided they meet two requirements:
§         Hardship to denying review:
¨       Hardship from choice between possibly unnecessary compliance and possible conviction
                                                                                                                   a.            FDA labeling change required relabeling or risk of convictions
¨       Hardship where enforcement is certain
                                                                                                                   a.            Sale of railroad property mandated by statute, just not ordered yet
¨       Hardship because of collateral injuries
                                                                                                                   a.            Power plant liability limitation is only reason it is being built
§         Fitness of the issues and record for judicial review
¨       If an issue can be decided on purely legal argument, it meets this requirement, but if there needs to be a set of facts to illuminate the controversy, then this requirement is not met (because ripeness implicitly means that there are not enough facts yet).
·         Solum: you brought the suit too early. You could always wait for injury, and then it is ripe…
o        Mootness
·         The requisite personal interest that must exist at the commencement of litigation (Standing) must continue thought the litigation’s existence
§         Essentially, any change in facts that ends the controversy making a decision by the court have no effect renders the case moot, including: death, settlement, repeal of law, etc.
§         Also could happen if you seek an injunction against something that has already happened.
·         Exceptions:
§         Criminal cases where sentence completed but effects of conviction linger (no right to vote, etc)
Wrongs are capable of repetition and would be moot before adjudication (Roe