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Constitutional Law I
University of Kansas School of Law
McAllister, Stephen R.

McAllister Constitutional Law Spring 2016
I.  Primary Constitutional Sources are in Article III sections 1 and 2
Section 1: The judicial power shall be vested in one Supreme Court
II.  The Power of Judicial Review
A.        of Federal Laws and Actions — Marbury v. Madison (1803)
B.        of State Laws and State Court Decisions
1.  Martin v. Hunter’s Lessee (1816) (Civil suits)
2.  Cohens v. Virginia (1821) (Criminal proceedings).
III.  The Supreme Court’s Jurisdiction
A. Original — Art. III, sec. 2, cl. 2. Congress cannot expand or limit. Marbury.
B. Appellate
1. Congress can regulate / limit / make exceptions to but not expand (except by scope of matters regulated by federal statutes) — Ex parte McCardle
 2. Congress must declare limitations expressly and probably cannot eliminate appellate review entirely — Ex parte McCardle
The “Case or Controversy” Requirement: Article III authorizes the Court to decide only “cases” or “controversies.” Thus, there must be a real dispute with adverse parties and real interests at stake. The Court strives to avoid unnecessary decisions.
I. General Rule: The SCOTUS Will Not Give Advisory Opinions
II. Standing – Concept: There must be a party to the case with (1) A personal stake (2) concrete adverseness which (3) sharpens the presentation of the issues.  (Baker v. Carr (1962))
A. General Article Three Standing Requirements
1. Injury in Fact: (a) concrete/particularized; (b) actual/imminent
2. Causation: Injury directly traceable to challenged conduct of D
3. Redressability: Injury can be redressed by court granting relief on the merits.
B. Prudential Limitations (No standing even if Art. III may be satisfied)
1. Generally No Third Party Standing
a. States generally cannot assert standing on behalf of citizens
b. Exceptions:
(1) Third party unable to sue
(2) Special relationship between third party and P
(3) Statutory authorization for P to sue on behalf of third party
(4) Third party rights indirectly violated by enforcement against P
2. Generally No Standing for Generalized Grievances, even if Article III satisfied
3. Other considerations, e.g., parents’ legal status in Pledge of Allegiance case
III.  Ripeness:  Must be present adverse impact/attempted enforcement of statute or order
A. First Amendment “chilling” exception
B. Generally, must exhaust administrative remedies
IV.  Mootness:  Must be actual controversy at the time a court renders a decision
Exceptions:     A. Case is capable of repetition yet evading review
B. Repeal of statutes
1. Not moot if altered, amended, or substituted
2. Moot if complete repeal
3. Courts wary of “voluntary cessation” mooting cases. Laidlaw.
V.  Justiciability – The Concept: A question subject to judicial resolution (are there identifiable standards) and appropriate for such resolution (separation of powers concerns).
The doctrine applies to bar review of “political questions,” not “political cases.”
A. Baker v. Carr (1962) Five Categories of Court’s Prior Decisions:
1. Foreign relations issues
2. Dates of duration of hostilities
3. Procedural Validity of Enactments/Constitutional Amendments
4. Status of Indian Tribes
5. Guaranty Clause (Art. IV, sec. 4) questions
 B. Baker v. Carr Six Conceptual Categories
1. Textually demonstrable constitutional commitment of issue to a coordinate political department
2. Lack of judicially discoverable and manageable standards
3. Impossibility of deciding issue without an initial policy determination of a kind clearly for nonjudicial discretion
4. Impossibility of a court’s undertaking independent resolution without expressing lack of respect due other branches of government
5. Unusual need for unquestioning adherence to a political decision already made
6. Potentiality for embarrassment from multifarious pronouncements by various departments on one question
The Constitutional Law
Judicial Power to enforce the constitution
Judicial Review – Invalidation of Federal Laws
: Supreme Court, not Congress has the authority and duty to review the institutional its of statutes passed by Congress, and to invalidate the statute if it violates the Constitution.
Marburg v. Madison: Who has the final say in interpreting the Constitution? (The court or the congress?) – When interpretation of law in in by president or congress conflicts, the court decides.
John Adams (Federalist) vs Thomas Jefferson (Republican)
John Adams appointed new judges, but commissions were not delivered by the time he left presidency. Marbury compels Jeffersons’s Secretary of State (originally John Marshall, but James Madison at the moment of claim) to deliver the commission for Justice of Peace. Marbury requested *Mandamus (=write of higher court to lower court)
Is there a “right”? –yes : their commissions were signed by the President and sealed by the Secretary of State
Is there a “remedy”? – yes : Marshall had to decide whether Madison’s failure to deliver the commissions entitled the Ps to some sort of remedy. He distinguished between political acts, (Ex-a president’s personal promise while drinking with congressman) which are not reviewable by the courts, and acts specifically required by law, which are review the . The delivery of the commissions was acts specifically required by law.
Is Mandamus proper?
– Yes, but.. :Judiciary Act authorizes it. The then-effective Judiciary Act provided that the Supreme Court would have jurisdiction “to issue..writs of mandamus to persons holding office under the authority of the US.” Thus the Act itself explicitly authorized the relief being sought by the Ps.
– Not SCOTUS under “original” jurisdiction: Not constitutional. However, Marshall concluded, this grant of jurisdiction was in conflict with Article III, 2, which grants the Supreme Court original jurisdiction only “in all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party.”
The grant of jurisdiction constitution Article III section 2. The court has the final say, thus it had the power to review acts of congress for constitution. -> No Jurisdiction for this case.
Constitution doesn’t say the court should interpret what it means, and the court only assumed.
John Marshall’s motive – leaning toward Jefferson by calling Marbury wrong
Arguable protected court’s power
Constitution always prevails over statute, and the court decide
Judicial Review – Invalidation of State Laws
: The Supreme Court may review state court decisions, but only to the extent that the decision was based on federal law
When the Supreme Court reviews the judgment of a state court, it is of course exercising its appellate (having a case on appeal), rather than its original, jurisdiction. Article III, section 2 provides that the Supreme Court’s appellate jurisdiction may be regulated and limited as Congress shall provide: SC’s appellate review of state court judgments has been limited to the federal questions decided by the state courts.
Even if there is a federal question in a state court case, the Supreme Court may not review the case if there was an independent and adequate state ground for the state court’s decision (That is, if the same result wou

*under-lined sentences interpreted by Justice Scalia – still controversial interpretation between Scalia and dissenting judges.
* Justice Scalia used Textualism, Originalism, Purposivism, Foreign/International law (a bit of British law)
* No specific standard regarding gun usage is given by the judge.
District of Columbia v. Heller:  the Court struck down the District of Columbia’s strict gun-control laws on Second Amendment grounds.
Fact) policeman, Heller, claims prohibition of arms by individuals is against the Second Amendment.
Holding) the Second Amendment confers on private citizens, not just militias, the right to keep at least some kinds of weapons for self-defense and recreational purposes.
Dissent) No speculation about “purpose.”(Agree with maj to look at purpose of second amendment)“Militia” should mean collective right (not individual right).
Justice Breyer suggest “interest balancing” : gun violence (-) > individual right (+) , which is rejected by Justice Scalia.
Limits on the Judicial Power
l Limits: limit on the Supreme Court’s appellate jurisdiction, and lower court’s original jurisdiction and above.
General problem: To what extent may Congress curtail the jurisdiction of the Supreme Court, or of the lower courts? If one looks solely at Article III, the only direct grant of jurisdiction to any particular court is that the Supreme Court shall have original jurisdiction in cases involving ambassadors, ministers and consuls, and cases in which a state is a party.
Voc) The original jurisdiction of a court is the power to hear a case for the first time, as opposed to appellate jurisdiction, when a court has the power to review a lower court's decision.
Limits indicated by Article III: Article III itself suggests that Congress may place certain limits both on the Supreme Court's appellate jurisdiction and on the jurisdiction of lower federal courts. First, Article III, section 2 states that in all cases not falling within Supreme Court’s original jurisdiction (but falling when the federal judicial power), the Supreme Court shall have “appellate jurisdiction both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” Similarly, the lower federal courts do not even exist until Congress creates them; Article III, section 1 provides that federal judicial power shall vest in the Supreme Court and “in such inferior Courts as the Congress May from time to time ordain and establish.”
Congress’ power to decide: Congress has the general power to decide what types of cases the Supreme Court may hear, so long as it doesn’t expand the Supreme Court’s jurisdiction beyond the federal judicial power.
Lower courts: Congress also may decide what lower federal courts there should be, and what cases they may hear. Again, the outer boundary of this power is that Congress can’t allow the federal courts to hear a case that is not within the federal judicial power.