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Constitutional Law I
University of South Carolina School of Law
Brown, Josie F.

The Authority for Judicial Review
Article III created the federal judiciary and defines its powers. Seven topics covered:
“The judicial Power of the United States shall be vested.”
“…in one Supreme Court and in such inferior courts as Congress may from time to time establish.”
federal judges have lifetime tenure; states have electoral review
“cases” and “controversies”
Federal courts have authority to vindicate and enforce the powers of the fed govt.
Federal courts have authority to decide controversies btw two or more states, btw a state and citizens of another state, btw citizens of different states, and btw citizens of same state claiming land in other states.
Supreme Court has original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the S.Ct. has appellate jurisdiction, subject to “such Exceptions and under such regulations as Congress shall make.”
Trial by jury
1.      Marbury v. Madison: est. authority for judicial review of federal executive & leg. actions
What is judicial review? The court is charged w/ declaring statutes constitutional or unconstitutional and refusing to enforce them. Before this decision, this wasn’t the situation.
RULE: The judiciary has the authority to review the constitutionality of executive and legislative acts, as long as they are not “political” (can’t be a political questionà limitation on judicial review)
RULE: Constitution is the supreme law of the land; Article III is a ceiling.
RULE: It is emphatically the province and duty of the judicial department to say what the law isà Court, NOT the legislature which must make the determination whether an act of Congress is in conflict w/ Constitution.
RULE: If the S.Ct. identifies a conflict btw a constitutional provision and a congressional statute, the Court has the authority (and the duty) to declare the statute unconstitutional and to refuse to enforce it.
Other important issues:
Marbury and other justices are entitled to their commissions once they are signed by President
This act is reviewable as it is required by law, as opposed to a political act; therefore, Marbury is entitled to a remedy
Political = appointments in a political matter, discretionary, don’t implicate individual rights, court can’t examine, foreign policy and relations w/ other states, veto power President: official acting
Duty = “where there is a right, there must be a remedy”; official acting regarding a legal duty, officer of the law, implicates individual rights, examinable by the court
Mandamus is not enumerated in Article III as S.Ct. original jurisdiction.
Marbury + 5 themes:
o        Separation of Powers: their powers sometimes overlap to act as a checks and balances to prevent from exceeding
o        Federal Law Supremacy: Not implicated classically; when conflict between the Constitution and Act of Congress => Constitution wins
o        Enumerated Powers: federal court can only exercise powers given by the Constitution
o        Federalism: none
o        Interpretation of the Constitution: Supreme Court interpreting and duty of courts to interpret
Canon of Constitutional avoidance – if you can in any way decide a case without having to resolve a difficult Constitutional question, you should do so on the non-Constitutional ground, courts will interpret ambiguous statutes in similar fashion
Cooper v. Aaron: (1958) (State refuses to comply with federal order mandating desegregation of schools under the 14th amendment equal rights à Federal troops were sent to make the state comply)
RULE: judiciary is supreme in the exposition of the law of the Constitution, & is permanent & indispensable à much firmer stance in that the Sup Ct has the final say in regards to anything regarding the constitution.
2.      The Authority for Judicial Review of State and Local Actions
RULE: The S.Ct. may determine whether a state court has reached a decision that is not in conformity w/ the Constitution; but it may NOT review state court decisions that merely adjudicate questions of state law, ONLY FEDERAL QUESTIONS.
Martin & Cohen: est. authority for judicial review of state court decisions
Martin v. Hunter’s Lessee (dispute over land; whether a VA statute conflicted w/ a federal treaty)
RULE: The Court could review the constitutionality of a decision by a state’s highest court.
A state is not a sovereign entity. §25 Judiciary Act of 1789: said Supreme Court could review decisions of highest state ct involve fed state law – VA argues this infringes on state sovereignty
Structure argument: Constitution presumes S. Ct. will review b/c it created in Constitution, whereas lower courts are created at discretion of Congress, and if they didn’t existà S. Ct. would have final say
S. Ct. review avoid state prejudice and jealousies (ex: judges offices/salaries dependent on will of legislature)
Need for uniformity in decisions throughout nation interpreting the Constitution
Cohens v. Virginia (∆ seeks S.Ct. review over conviction of selling D.C. lottery tickets in VA)
RULE: Criminal ∆s can seek S.Ct. review when they claimed that their conviction violated the Constitution.
Limits on the Federal Judicial Power
Interpretive limits: how should the Constitution be interpreted?
How should the Constitution be interpreted?
Originalism – court is justified in enforcing only those rights stated or clearly implicit in written Constitution
If the Constitution is silent, it is for the legislature, unconstrained by the courts, to decide the law.
Non-originalist – Constitution should evolve through interpretation and amendment, not just amendment
U.S. v. Emerson (Federal District Court used the 2nd amendment to invalidate a federal law that prevents those subjected to restraining orders in domestic violence cases from possessing firearms)
2nd amendment: “a well regulated militia, being necessary to the security of a free state, the right of a people to keep and bear arms, shall not be infringed.”
Court held the right to bear arms has consistently been construed as an individual right.
Court examines prior S.Ct. precedent, history, prudential concerns/ social costs, scrutiny, text
US v. Miller – sawed off shotguns do not constitute the kind of weapons that one has the right to bear (nature of the weapons – what kind did the framers intend to fall under “Arms”)
Consider the various interpretations of the second amendment:
US v. Miller (1939)
Promotes the collective rights interpretation of the 2nd amendmentà fostering the state militia 
US v. Emerson (2002) 5th circuit
Promotes the individual rights interpretationà any person has a right to own a gun subject to some narrow limitations
Silveira v. Lockyer (2003) 9th Circuit
Rejects the individual right theory, adopting the collective rights theory, state militia à regulated by state for purpose of protecting the state, but no individual right to bear arms
Both look to the TEXTUAL and HISTORICAL basis in determining theories to adopt.
“people” à the words state militia were not used, and people suggests the same use as in the 1st and 4th amendments
“bear arms”à carry guns
“keep arms” à store them in your home
“militia” àcontrolled body of the state 
“bear arms”à In official capacity in relation to militia
“keep arms” à should be read together with Keep and Bear Arms, read like necessary and proper
“own … possess” à use for the militia
Approaches t

on of
Robertson v. Seattle Audubon
RULE: Congress has power to pass legislation that will effect suits pending as well as going forward
Can change the law – courts must apply new law to cases pending
Key distinction from Klein: b/c Congress has made a new law and didn’t direct findings or results under old law
Outcome in Klein applies in a situation where Congress directs the judiciary as to decision making under an existing law and does not apply when Congress adopts a new law
Can’t dictate how cases are to come out under old law or dictate fact finding
HandoutsàSchool Prayer article, Congress proposed statute to strip the Sup Ct of jurisdiction to review by appeal arising out of state statutes and courts.
Congress is overstepping boundaries by being too specific in terms of exceptions and limitations.
This disrupts the order of review à how the system works
Human Life Legislation Handout:
§        If you strip the lower federal court jurisdiction then you would change the route to which it would get to the Sup Ct. More narrow than school prayer
The hope in these acts is to allow the states to decide and allow the acts, despite unconstitutionality.
PARITY: federal and state are meant to have parity, state courts can hear constitutional matters. Nonetheless there is federal review, b/c at times there may not be parity. Here these acts are hoping there not be parityà use jurisdiction stripping in the hope judges will ignore the constitution and oath under Art 6.
Justiciability limits: types of “cases & controversies” federal court can hear
Judicially created limits on the matters that can be heard in federal courts; some are “Constitutional” (cannot be overridden by Congress through statute) and others are “prudential” (based on prudent judicial administration & can be overridden by Congress since they are not constitutional requirements.)
Provide federal courts w/ concrete controversies best suited for judicial resolution
Constitution Reasons:
there must be adversity b/w the parties: must be a real controversy
concreteness: courts can’t decide if not a real case
specificity: not vagueness, abstractness
Prudential Reasons:
conserving judicial resources
standing is judicially created
Policies underlying justiciability requirements
Separation of powers – define judicial role
Conserve judicial resources
Provide controversies best suited for judicial resolution
Promote fairness, especially to individuals who are not litigants before the court
Principles of Avoidance: in addition to 5 justiciability limits, courts refrain from passing upon the constitutionality of an act of Congress unless obliged to do so in the proper performance of judicial function, when the question is raised by a party entitled to raise ità PG. 31
Limits to Supreme Court’s ability to hear cases under Art III sec 2 (all must be met for case to be heard at any level of federal court)
Prohibitions on advisory opinions
Political questions
Prohibition on Advisory Opinionsà must be “case or