Select Page

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

Approaches to Con Law Analysis
        I.            Federalism: divide of power between states and federal govt.
a.       Article 1: implies that Congress can only act if there’s clear authority; everything else is left to the states.
b.      10th amendment: debate about if this reserves a zone of authority exclusively to the states and if judiciary should invalidate laws that invade that zone.
c.       Supremacy clause (Article 4): basically says that state and local laws are pre-empted if they conflict with federal law.
d.      Federalism also limits the ability of states to impose burdens on each other.
     II.            Originalism: The Constitution is fixed and unchanging. view that judges deciding constitutional issues should confine themselves to enforcing the norms that are stated or are clearly implicit in the written Constitution.
a.       If Con. is silent on the issue, it’s up to the legislature, not the courts
b.      Constitution should evolve solely by amendment
·         Three Types
o        Strict originalism: Ct. must follow the literal text and specific intent of the drafters.
o        Moderate originalism: more concerned with adopters’ general purpose than with their precise intentions.
o        “Original meaning” (Scalia): original meaning is found in the historical practices and understandings of the time, not framers’ intent.
·         Arguments for Originalism
o        The very nature of interpreting a document requires that its meaning be limited to its specific text and its framers’ intentions.
o        Originalism is desirable to constrain the power of unelected judges in a democratic society.
o        Court is justified in invalidating govt. decisions only when it’s following values clearly stated in the text or intended by the framers.
   III.            Nonoriginalism: view that courts should go beyond the written text and enforce the norms that aren’t in it.
a.       If Con. is silent on the issue, it’s ok for the courts to interpret Con. to protect rights not expressly related or clearly intended.
b.      Con. can evolve by amendment and interpretation.
·         Two Approaches
o        One approach emphasizes court’s role in implementing the processes of govt.
o        One approach says court can decide cases based on modern values, but only when dealing with issues concerning the process of govt.
·         Arguments for Nonoriginalism
o        Desirable to have the Constitution evolve by interpretation and not only by amendment; needs to meet needs of a changing society.
o        There isn’t an unambiguous, knowable framers’ intent that can be found to resolve Constitutional questions.
o        The framers intended the Constitution to be interpreted this way.
I.        Authority for Judicial Review: Marbury v. Madison held that SCOTUS could declare federal laws unconstitutional.
1.      SCOTUS has power to review the constitutionality of executive actions
2.      When SCOTUS interpretation of the Constitution is in conflict with a law in Congress, SCOTUS can invalidate law by declaring it unconstitutional
II.     The Authority for Judicial Review of State and Local Actions: Constitution doesn’t give SCOTUS review of state court decisions, but rather the Judiciary Act of 1789. This basis was reinforced in Martin v. Hunter’s Lessee.
·         Martin v. Hunter’s Lessee (1816)
o        Justice Story argued that the Constitution implied that SCOTUS could review state court decisions. Three reasons:
§         Since Constitution established SCOTUS and gave Congress the power to create lower courts, then it’s rational to presume that SCOTUS could review cases by these lower courts because otherwise SCOTUS could only review the few cases in which it had origi

statute adding more participants to an allotment of land made to Native Americans. Then Congress passed a statute that permitted the filing of 2 lawsuits that were meant to determine the validity of the first law. SCOTUS said this was non-justiciable because govt. and Native Americans weren’t adverse parties; seems like the second law Congress passed was to allow federal courts to issue an advisory opinion.
2.                          Ripeness: in order for case to be subject to possibility of judicial review, it has to be timely and has matured to the point where there are real interests on both sides of the case.
3.                        Mootness: dispute must not have been settled or resolved or diffused by circumstances; must still be an active, live controversy between parties that a court can do something about.
4.                         Standing: suit must be brought by a party with legal standing:
·         Person suffered concrete legal injury
·         Injury is traceable to D’s conduct
·         Dispute has to be capable of being resolved by a court
5.                        Cannot Seek to Answer a Political Question
·         Policies Underlying Justiciability Requirements
o        Reinforces Separation of Powers: this doctrine defines the judicial role and says when to defer to the other branches.
o        Conserves Judicial Resources: courts only have to hear the most pressing cases.
o        Improves Judicial Decision-Making: provides federal courts with concrete controversies best suited for judicial resolution.