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Constitutional Law I
University of South Carolina School of Law
Crocker, Thomas P.


a) Authority for Judicial Review
(1) Federal Action – Marbury v. Madison (1803)
(i) Sec. of St. failed to deliver the commission of a magistrate before the expiration of Adam’s term and Jefferson refused to finish delivery.
1. Issue – Must an act repugnant to the Constitution still be given the effect of law?
2. Held – No. The act is unconstitutional and thus void. Congress does not have the power to confer original jurisdiction to the SC – only original jurisdiction is that given by the Constitution and cannot be expanded by Congress.
3. Interpreting the law is the job of the SC, full constitutional review of both Congress and the Executive branches
4. Exceptions Clause allows Congress to remove cases entirely from SC’s appellate jurisdiction, but it does not permit cases to be moved from the appellate to the original jurisdiction
5. Power of judicial review; Supreme court may declare acts of congress unconstitutional
6. Gives Supreme court power to compel executive branch to follow its order; but does not exercise the power in this case

(2) State Action – Martin v. Hunter’s Lessee (1816)
(i) Property dispute involving British heirs, US treaties, and Virginia law. SC overruled Va SC, and Va SC refused compliance.
1. Issue- Does the SC have appellate jurisdiction over the highest state courts on issues involving the federal Constitution, laws, and treaties?
2. Held- Yes. If the case comes under the Const., then it does not matter what tribunal it comes from
3. Supremacy Clause directs state judges to honor the Const. over conflicting state laws, but the SC can review such cases to ensure the supremacy and uniformity of federal law
(ii) Cooper v. Aaron (1958) – Arkansas chose to ignore the holding in Brown v. Board
1. SC’s decision is controlling over all other governmental depts. To ignore the decision is to violate your oath
2. Every justice signed the opinion for desegregation
3. State executive does not have the power to ignore federal law in interpretation of the constitution

(3) Sources of Judicial Decisions: McCulloch v. Maryland (1819)
(i) Action by McCulloch contesting the validity of an act which has been passed by the legislature of that State, D denies the obligation of a law enacted by the legislature of the Union, D has a tax against all banks and declares that they are a fully sovereign entity
1. Issue- Does Congress have the power to charter a national bank?
2. Held- Yes. It is an implied power from the enumerated powers which is necessary and proper for furthering the enumerated powers
3. Taxing of a national bank by a state would violate the Supremacy Clause
4. The benefits of the people of the Union are more important than those of a state

(4) Interpreting the 2nd Amendment: 3 Principle Schools of Thought
(i) “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
1. Traditional Individual Rights – right to possess and use firearms for any purpose at all, subject only to limited gov’t regulation
2. Limited Individual Rights – right to bear arms insofar as it is related to militia purposes
3. Collective Rights – state militias have the right to bear arms, but individuals do not have that right
(ii) U.S. v. Emerson (5th 2001)
1. Emerson was indicted for possessing a firearm during divorce proceedings after being ordered not to possess such
2. Held- the Second Amendment protects the right of individuals to privately keep and bear their own firearms that are suitable as individual, personal weapons and are not of the general kind or type excluded by Miller, regardless of whether the particular individual is then actually a member of a militia.
3. However, the predicate order in question here is sufficient, albeit likely minimally so, to support the deprivation, while it remains in effect, of the defendant’s Second Amendment rights.
(iii)Silveira v. Lockyer (9th 2002)
1. Residents brought action challenging constitutionality of amendments to California Assault Weapons Control Act (AWCA) that significantly strengthened restrictions on possession, use, and transfer of assault weapons
2. Held- the Second Amendment affords only a collective right to own or possess guns or other firearms and does not provide any type of individual right to own or possess weapons
(iv)Need to look at history, text, original intent, structure, all the different tools to determine the meaning
(v) Constitution does not have a self referential rule for how to interpret; left with open text nature of the document itself

(5) “Case or Controversy” Requirements
(i) There must be an actual dispute involving the legal relations of adverse parties – courts may not issue “advisory positions” or decide “political questions” and they must have someone before them with “standing” or stake in the controversy
1. forbids courts from invading legislative or executive action “merely” b/c it is unconstitutional
2. There is a problem with the judiciary limiting its own power b/c the other 2 branches will not limit their power, thus there could possibly not be a proper set of checks and balances
3. The people have political checks (voting) and the courts, if the courts are limited, the people have been restricted, especially people in a minority since they have been overruled at the poles
(ii) Five doctrines to determine if can get case into court
1. Prohibition of advisory opinions
a. Two factors that must be met to avoid case being dismissed as advisory opinion:
i. Must be actual dispute b/n adverse litigants (actual legal dispute b/n two parties)
ii. Must be substantial likelihood that a federal court decisions in favor of claimant will bring about a change or effect
2. Standing- Injury in fact, causation (fairly traceable to the person sued), and redressability (Positive judicial resolution will provide redress for the party)
3. Ripeness- too early; The injury they think is going to happen might not happen
4. Mootness- too late; i.e. DeFunis π about to graduate from law school and case still at trial so would not have affect
a. Exception- injuries that are capable of repetition yet evading review; i.e. Roe abortion case
5. Political Question Doctrine- off limits if for congress or executive to decide

(6) Standing: Allen v. Wright (1984)
(i) Parents of black schoolchildren filed an action to compel the IRS to deny tax-exempt status to racially discriminatory private schools
1. Issue- Is harm of gov’t financial aid which impairs desegregation enough to provide standing? General tax payer standing to sue?
2. Held- No. stigmatic harm is not a cognizable injury, thus no standing exists b/c there is only speculation as to whether denying tax-exemption would help further desegregation
3. The court says the second injury claim of frustrating ability is injury in fact but does not have causation
a. The causation is speculative whether withdrawal of the tax exemption from any particular school would lead the school to change its policies
(ii) In general as a citizen do not have standing to sue the government
1. Exception: As a citizen you have standing to sue the government for violation of establishment clause where congress is exercising its power under the taxing and spending clause
2. Only exception for taxpayer standing is when: challenge government expenditures as violating the establishment clause of the first amendment, the provision that prohibits congress from making any law respecting the establishment of religion
(iii)Lujan v. Defenders of Wildlife (1992)
1. D brings suit against P, Secretary of the Interi

The Const. does not allow the House to deny membership by majority vote; Const. only allows the House to use age, citizenship, and residence as criteria.
4. The SC’s role is to interpret the Const. which was required in this case.
(vi)Ex parte McCardle (1869)
1. McCardle was charged with printing a newspaper that says bad things about the gov’t and was put in jail
2. D appealed a denial of habeas corpus to the SC, but Congress passed an act over presidential veto that repealed the habeas corpus act
3. SC has appellate jurisdiction under the Constitution, but Congress has the power to make exceptions to that appellate jurisdiction
4. Held- Appeal must be dismissed for lack of jurisdiction

(8) Political Fairness: Vieth v. Jubelirer (2004)
(i) P challenges a map drawn by the Pennsylvania General Assembly establishing districts for the election of congressional Representatives on the grounds that it constituted unconstitutional political gerrymandering
1. Issue- Are the previous holdings that political gerrymandering claims are justiciable in error?
2. Held- Yes. No provision in the Const. provides a judicially enforceable limit on the political considerations that the States and Congress may take into account when districting.
(ii) Bush v. Gore (2000)
1. appeal from order of Fl. SC ordering a manual recount of undervotes in all counties that had not yet completed a recount
2. Issue- Does the recount procedure in place under the Fl. SC’s order comport to minimal constitutional standards?
3. Held- No. When a court orders a statewide remedy, there must be at least some assurance that the requirements of equal treatment and fundamental fairness are satisfied; it is obvious that the recount cannot be conducted in compliance w/ the requirement of equal protection and due process
4. Argument for No Standing (wrong person): Bush lacked first-party standing for equal protection, and he lacked third-party standing b/c the injured voters could have brought a lawsuit themselves
5. Argument for Standing (right person): Bush may have third-party standing for having a close relationship to the voters, not strong argument

a) Federalism
(1) Four different forms of federalism
(a) Neither federal government nor the state might have power to do something
(b) National government should be given the exclusive power to regulate
(c) State governments may have the exclusive power to regulate
(d) Both state and federal government have concurrent power to regulate and supremacy clause gives federal power over state if they disagree
(2) Commerce Clause
(a) Grants to Congress the enumerated power to “regulate Commerce w/ foreign Nations, and among the several States, and with the Indian Tribes”
(b) Federal Gov’t also has implied powers (Necessary and Proper to attain a legitimate end not prohibited by the Const.)
(3) Fundamentals: Federalism and Judicial Review: Gibbons v. Ogden (1824)
NY legislature enacted a statute granting 2 men the exclusive right to operate steamboats in NY waters, the 2 men granted D a license to