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Constitutional Law I
University of North Carolina School of Law
Muller, Eric L.


Judicial review: Can SC do X?
Federalism: Can C do X to the states?
Separation of powers: Can prez do X?
Individual rights: Can the states do X to you?
Equal protection: When can the states discriminate?


Overview: Judicial review
SC has the final power to define the constitution (Marbury). Even over the states (Hunter’s Lessee). Moreover, its opinion carries the force of a constitutional pronouncement, making the SC more than merely an authority on its interpretation (Cooper Aaron). The general level of scrutiny for legislation arriving before the court affords a presumption of constitutionality that is rebutted only if the law is specifically prohibited by the constitution. However, there may be a higher level of scrutiny for laws affecting discrete and insular minorities (Carolene Products). There is also a standard of review called representation reinforcement that envisions its use primarily as a check on undemocratic actions (Professor Ely). Although this may sound like a departure from the status quo, Ely’s theory substantially embodies Carolene’s presumption of constitutionality while giving more pointed theoretical force to it discrete and insular minorities exception. It’s theoretical achievement is to create a coherent, unified theory of judicial review that substantially reflects the status quo.

Marbury: Judicial review must be justified because it looks inconsistent with our democratic sense because judges are not elected. Marbury established the final power of the SC to give legally binding meaning to the provisions of the US consti and to invalidate the actions of the other branches of the FG and the states when they conflict with the consti as interpreted by the SC. Marshall offers five major arguments for judicial review, the main one being that under article 3 the SC’s judicial power is extended to “all cases arising under” the constitution. “It is emphatically the province and duty of the judicial department to say what the law is.”
o Five main args for JR:
§ “Written consti”
§ “Judicial role” to “say what the law is”
§ Supremacy clause
§ Oath of office taken by judges to uphold consti
§ Art 3: SC has judicial power is extended to “all cases arising under” the consti – best arg

Hunter’s Lessee: Judicial review extends to states (specifically, it trumps a state court’s constitutional interpretation). Args: state judges are more likely to get federal law wrong; fed judges are more impartial (not elected, salaries can’t be reduced); “arising under”; Supremacy clause; State prejudices may obstruct “the regular administration of justice”; Uniformity of decisions.

Put Martin and Marbury together and SC sits in preeminence in regards to interpreting the consti against other FG branches and states.

US v Carolene Products (1938): When legislation arrives before the court, it has a presumption of constitutionality. Unless “legislation appears on its face to be within a specific prohibition of the consti, such as those of the first ten amendments” (is not arbitrary or irrational). HOWEVER, in the famous forth footnote, he mentions that “prejudice against discrete and insular minorities may be a special condition” that requires stricter scrutiny. Latter taken up by Warren ct.

Representation reinforcement
Professor Ely: Because they’re unelected bodies, federal courts should assume legislation or state action or federal action is constitutional and give only minimal review, except in those situations where the issue is that the democratic process that produced this challenged action was flawed. So JR should be used primarily as a check on undemocratic actions (e.g., exclusion of minorities).

SC is supreme
Cooper v Aaron: State cts ruled to delay implementing desegregation after Brown. The word of the SC becomes the consti. SC’s answer is not that their interpretation is correct, but that their court order is supreme. SC’s opinions become the constitution. On the other hand, Abe Lincoln, in response to Dred Scott, felt he had a duty to resist abhorrent SC decisions.

Limitations of judicial review

Case or controversy: Article 3, sec 2
“Judicial power shall extend to all [cases and controversies] arising under the constitution.” This is the scope of JR for federal courts. Often used as an easy out for a federal court when it doesn’t want to hear a case. “Squishiness.”

The proceeding must be a good-faith adversarial dispute in which important legal rights are being threatened by the government action at issue, in which the threatened harm will be caused by the government action, which the government has the power to resolve.


Overview: Justiciability
Assuming the case is a controversy “arising under” the constitution (Article 3, sec 2), is not ripe, moot, without standing, our requesting an advisory opinion, it may be denied a hearing by the political question doctrine, which calls for judicial restraint when resolution of the case requires adjudication of an inherently political question (Borden). This determination rests on a balancing test that is principally concerned with judicially discoverable and manageable standards to resolve the dispute and contradictions between branches (Carr). The issue of systematic political exclusion has been considered justiciable, based on the “discrete and insular” heightened standard of review (Bandemer). The internal affairs of Congress, however, are generally considered nonjusticiable, for fear of separation of powers, lack of effective remedy, and national trauma (Nixon).

Justiciability is a body of common law doctrine that determines when a federal court may use its power of judicial review, assuming jurisdiction is granted.

If ct finds 1-3, must declare no JD and dismiss. If 4 or 5, may use “prudential” analysis to determine whether case will be heard.
Ripe (too early): a disagreement must have matured to the point where it is a genuine dispute affecting real interests.
o Ex: soldier about to be deployed to Vietnam not ripe because his deployment is just a hypothetical possibility.

Mootness (too late): moment for preventing the issue has not passed; not a “live controversy” anymore.
o Ex: student not admitted to school because of race, but while trial is pending he is accepted.

Standing: Does P have sufficient interest in the matter at hand to qualify as an appropriate person to be invoking article 3 JD.
o Elements:
§ Has P suffered a concrete legal injury?
· Ex: prison abuse where P is a law student
§ The legal injury must be fairly traceable to D’s conduct (prox causation)
§ Injury must be redressable by court

No advisory opinions
o SOP: cts should refuse the opportunity to issue opinions at any time about any aspect of law. This explodes the burden and breadth of their JD. They could box in the legislature with adverse rulings.
§ Cts should not be a “roving commission”
§ Incensed Law Student Assuagement Act of 2007.
o Weak motivation for making the effort to construct the strongest possible arguments.
o Ct resources
o Standing problems
§ “taxpayer’s standing” would make FDCs roving commissions
o “No interest adverse to the claimants.” Muskrat v US
o Declaratory Judgment Act: Actor who would be D can become P to determine what rights it has. Must still be an article 3 controversy. “The diff between an abstract question and a controversy under DJA is necessarily one of degree and it would be diff to fashion a precise test to determine if there is such a controversy.” Basic test: “Whether the facts alleged show that there is sub controversy between parties having adverse legal interests of suff immediacy and reality to warrant declaratory judgment.”

Not a political question: Certain constitutional issues are off-limits to the judiciary and reserved for the executive and legislative branches – the political branches. The doctrine is therefore “primarily a function of the separation of powers” existing to restrain courts “from inappropriate interference in the business of the other branches of government.” (Baker)
o Common reasons: mostly from Baker
§ “A textually demonstrable constitution

§ Framers didn’t want SC to have a role in impeachments:
· Bias concerns. There will most likely be two sets of proceedings for those who commit impeachable offenses: the impeachment trial and a criminal trial.
· SOP concerns. JR is this case “would place final reviewing authority with respect to impeachments in the hands of the same body that the impeachment process is meant to regulate.”
· Lack of finality concerns. “Opening the door to JR of the procedures used by the senate in trying impeachment would expose the political life of the country to months, or perhaps years, of chaos.”
· Uncertain relief concerns. “Could the court order the reinstatement of a convicted federal judge, or order congress to create an additional judgeship if the seat had been filled in the interim?”

Foreign policy limitations

Overview: Treaty power (limitation)
Judicial review in foreign policy might undercut the credibility of executive as a negotiating partner. For this reason, amending or rescinding treaties has been ruled nonjusticiable (Goldwater). However, if a treaty is ambiguous, the court may treat it as essentially a statute in need of interpretation and therefore the issue would be justiciable (Japanese Whaling).

Judicial review in foreign policy would undercut credibility of executive as a negotiating partner.

Treaties are nonjusticiable
Goldwater v Carter
o When Goldwater sued Carter for withdrawing US from Taiwan treaty, SC called it a nonjusticiable political question.
§ Lack of judicially discoverable standard b/c consti does not speak to rescinding treaties
§ Risk of multifarious pronouncements undercutting US credibility
§ Other two branches had the political resources to resolve dispute without involving SC.

Unless they need interpretation
But, Japanese Whaling
o Japan was exempted from an international ban on harvesting sperm whales by the president via executive agreement.
o SC calls this justiciable. Executive agreement was essentially a statute in need of interpretation.
o Prof: If president tells secretary of whaling to disregard the whaling ban, that’s nonjusticiable.

Congressional limitations

Overview: Congressional jurisdiction-setting
The Exceptions and Regulations clause (art 3, sec 2, cl 2) grants Congress the power to make exceptions to the supreme court’s appellate jurisdiction. Congress may go so far as to revoke a statute granting the SC jurisdiction during a case which relies on that jurisdiction, thereby ending the case (Ex Parte McCardle). However, use of the Exceptions clause is constricted by other parts of the constitution – particularly the 5th and 14th amendments, which establish fundamental individual rights within the judicial system – as well as the principles of separation of powers. And when Congress passed a law that had the effect of prescribing the rule of decision in a particular cause, Congress “inadvertently passed the limit which separates the legislative from the judicial power.” (Klein). There is a fundamental tension between Congress’s plenary power to determine SC’s jurisdiction and the SC’s authority to hear cases arising under the constitution.

C determines SC’s jurisdiction, but is constricted by other parts of constitution
Ex Parte McCardle: