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

Con. Law I Crocker ReRd Review on 3.27 of the 1st part of semester, 4.3 exam notes

Common Issues Running in Federal Government
Judicial Power
Limitations on Judicial Power:

doctrine of sovereign immunity prevents suits against the United States and its officers w/o its consent
11th Amendment provides some limitation on suits against states in federal courts, although states can be sued on causes of action passed by Congress pursuant to delegated powers, and state officials can be sued for violating complainants constitutional rights
federal courts can hear only cases or controversies, meaning that there must be a genuine, present dispute
harm complained of must be real and the litigants must have a personal stake in the outcome
the injury must be remediable by the judicial relief sought
SC will not review a state court decision unless all states procedures have been exhausted, judgment is final, and a federal issue is conclusive
court will also refrain from deciding political questions

Legislative Power

can legislate any law that is necessary and property to effectuate any specifically enumerated power of any branch of the federal govt
has inherent power to regulate external or foreign affairs
Commerce Power is very important for exam.

a. Enumerated power to tax allows it to regulate through taxation where it otherwise lacks power to regulate, provided that the tax has a revenue raising purpose
b. Similar results are possible under Congress’ spending power

war power gives broad authority in times of war
plenary power over naturalization and citizenship

Executive Power

President has broad appointment powers for federal judges, ambassadors, and federal officers w/ advice and consent of Senate
Congress may vest the power to appoint inferior officers in the head s of depts. Or courts to the president
President’s veto power allows him to veto acts of the legislature which ten must be reposed by senate in a 2/3 vote
president can’t declare war, he is chief power of the army and military
president has extensive privilege against disclosure of presidential communications

Powers over Foreign Affairs

Power of FA is exclusively vested in the federal govt.
Congress can regulate foreign commerce
president can make theaters w/ 2/3s of senate and executive agreements w/o senate help

A. The Authority for Judicial Review

Marbury v. Madison * Constitution trumps Congress.
Rule: It is emphatically the province and duty of the judicial department to say what the law is. OR The constitution is the supreme law of the land.

Justice Marshall establishes the right to review federal executive and legislative acts.

Four Reasons for Supremacy of Judicial Power

judicial oath
nature of the structure of the constitution
supremacy clause Article VI §2 Constitution trumps an enactment of Congress
Judicial Role (inference based on the fact that the constitutions sets up certain

Evidentiary rules on treason w/o at least 2 instances)

Three Lessons from case
1. Authority to review executive acts
2. Article III is the ceiling. Can’t expand
3. Authority to review on constitutionality of legislative acts.

Source and Scope of Power
Article III Section 1
Federal Judicial Power shall be vested in 1 Supreme Court, and in such inferior courts as the Congress may from time to time ordain.

Limited to the following under Article III S2:

whose disposition depends on construction of the Constitution, an act of Congress, or a federal treaty
in which the US is a party
baton state and citizen of another state
between citizens of different states (diversity cases)


11th Amendment
Sovereign Immunity Doctrine

Authority for Judicial Revive of State Judgments
Marbury v. Madison only sets forth the right to review federal executive and legislative actions. Authority to review state court decisions was established by two earlier cases,
Martin v. Hunter’s Lessee and Cohen’s v. Virginia.

Nature of the Constitution
1. creation- organization
It creates the powers in the first place. W/o the Constitution, there is no governmental structure.
2. Priority – written and enacted in “temporal and logical”
Problem: Not clear that just b/c it was written before why regular actions can’t trump Constitutional provision
Dualist System of Law
A. Ordinary Regular Law
Easier and quicker
Not necessary to amend the constitution
B. Extraordinary laws
Intensity to get it go through makes it much more difficult.
3. EITHER Supreme or Ordinary? Can’t be ordinary by the very nature of the Constitution than it has to be Supreme.

What are the arguments for SC jurisdiction over State court decisions?
1. Structure
Ability to create lower federal courts
A grant of authority if Congress chose not to create lower federal courts
2. Supremacy
Competing interest
Why? Beholden to state legislature for their job b/c this problem for their potential bias b/c the constitution is
3. Uniformity of interpretation of federal law
What would happen?
Do we have problems with uniformity? Yes. Circuit splits.

Cooper v. Aaron
Rule: Statement that the SC (federal judiciary) is supreme in matters of constitutional interpretation.

B. Limits on Federal Judicial Power
Interpretative Limits
Two The

erence e.g. Washington àguns = muskets
Use/practice e.g. term of law is defined by regulations, institutions, etc.
Incompleteness (meaning never fully fleshed out)
Vagueness (terms that are almost purposefully vague way)

Does this get ride of the incompleteness of Open, texture problem?
Potential Problems
1. Article I§8 p 12-13
What about airforce? Why isn’t it there? If we were strictly orginalist, it would be an illegal act to create and support an airforce.
2. Art. I§8 p.8 Copyright Clause
Musical recordings?
3. Art. I§8
4. Preamble

Implications as a strict orginalist
1. Brown v. BOE is unconstitutional
2. EP only to black person, not women
3. power to regulate commerce

What are non-originalist positions? Most judges maintain. Notion of a living constitution, Reqhinquist.

2. Congressional Limits

Article III
Gives the SC the power to appellate jurisdiction both as to law and fact w/ such exceptions and under regulations as the Congress shall make

Exceptions and Regulations Clause
Ex Parte McCardle
Rule: Under the Exceptions and Regulations Clause of the Constitution, Congress may limit the Supreme Court’s appellate jurisdiction.

Separation of Powers as a Limit on Congress’s Authority & Jurisdictional Stripping
United States v. Klein (ability to recover property via pardon after Civil War)
Rule: Congress is limited in power to restrict appellate jurisdiction of the court.

3. Justiciablity Limits
Article III. Section 2 authorizes federal courts to hear several types of “cases and controversies”

Justiciablity Doctrine
Judicially created limits on the matters that can be hears in federal courts

Two Types of Justiciabilty Doctrines
1. Constitutional
Congress can’t override them


Based on prudential judicial administration and can be overridden by Congress since they are not contextual requirements

*Justiciablity Doctrines raise basic policy questions about the proper role of the federal judiciary in a democratic society.

Five Major Justiciablity Doctrines
1. prohibition against advisory opinions

political question doctrine