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

Constitutional Law I
Crocker
Spring ‘09

1) IS THE JUDICIAL BRANCH TRYING TO DO SOMETHING?
a) Does the court have authority?
i) Express terms of Article 3
ii) Implied
(1) Supreme Court (SC) has power to determine if acts of legislative and executive are void against the constitution (Marbury v Madison[1])
(2) SC can determine constitutionality of both state civil (Martin v Hunters Lessee [2]) and criminal (Cohens v. Virginia) court decisions.
(3) SC is supreme when its interpretation of the constitution is counter to a state’s (Cooper v Aaron [3] derived from Article 6 sec 2)
iii) Limits on authority
(1) Interpretive limits
(a) Theories
(i) Originalism
1. Textual Originalism
a. no need to go beyond text
2. Abstract Originalism
a. can look at text plus what the framers intended at creation
(ii) Traditionalist theory
1. Use our nations traditions to interpret
(iii)Aspirationalism
1. Adapt constitution to modern day understanding
(iv)Ely theory
1. Interpret constitution to reinforce the democratic process
(b) Modes of Interpretation
(i) Historical
(ii) Textual
(iii)Structural (gov’t structure)
(iv)Ethical (morals and values of constitution)
(v) Doctrinal (tradition, precedent)
(2) Congressional limits
(a) Exceptions and Regulations Clause of Article III
(i) Congress has express authority from constitution to limit SC appellate jurisdiction (ex parte McCardle[4])
(b) Seperation of Powers as limit on Congress
(i) Legislature cannot restrict appellate review in an attempt to dictate particular substantive results under existing law. There is some vagueness here because the case establishing this could be interpreted to mean that the legislature cannot restrict the courts jurisdiction when it would be counter to other constitutional provisions. (US v Klein[5] [difficult to reconcile with McCardle])

(3) Justiciability limits
(a) Constitutional limits
(b) Prudential limits (self-imposed/may be preempted by legislation)
b) Can the court hear a case?
i) Court cannot grant advisory opinions (Must be a case or controversy per Article III)
(1) A case which leaves the ultimate discretion to another branch of gov’t is advisory (Hayburn case)
(2) The legislature cannot turn a final judgment into an advisory opinion by making the case up for review again or directly overturning it (Plant v. Spendthrift) (this does not mean that the legislature cannot preempt substantive law, only that it cannot change a final judgment in a particular case)
ii) Does the party have standing?
(1) Constitutional requirements derived from Article III
(a) Injury
(i) Courts have refused to recognize certain things as injuries
1. Injuries to common law, constitutional, and statutory rights are always sufficient
(ii) Must be either actual or imminent(Lujan v Defenders of Wildlife[7])(City of LA v Lyons)
(b) Causation (Mass. v EPA [8])
(i) Cannot be indirect or be the result of an intervening actor (Allen v Wright[6])
(c) Redressability (prior to allen v wright this was treated as the same as causation) (Prior to Allen, warth v seldin made it either causation or redressability)
(i) There must be a cure available to the court to fix the problem
(2) Prudential requirements
(a) A party can only assert her own rights and not that of a third party
(i) Unless
1. The relationship to the third party is very close (doctor for patient [Singleton v Wulff], school for students, vendor for customer [Craig v Boren])
2. The third party is unable to sue (Barrows v Jackson)
3. If it abridges a third party’s first amendment rights (very limited)
4. An association may sue on behalf of its members
(ii) If it is established that the third party does not want to assert their right then no one can sue on their behalf (Gilmore v Utah)
(b) Limitation on general grievances
(i) The asserted harm cannot be shared by all or a large class of citizens (Not determined by the number of people affected. Rather it focuses on the person making the claim being a concerned citizen or taxpayer [Valley Forge Christian College v. Americans United for Separation of Church and State])
(ii) Exception: 1)When Congress is exercising rights under the taxing and spending clause, and 2) it must violate a specific constitutional limitation like the establishment clause of the first amendment (Flast v Cohen[10])
1. Courts have not extended this review to the executive branch (Hein v Freedom From Religion[11])
(c) If suing under a statute, the plaintiff must be a member of the group the statute was intended to protect
iii) Is the case ripe for review? (Don’t yet present a case or controversy)
(1) Court will not try to anticipate questions of constitutional law or try to guess whether something may or may not occur
(2) You must be arrested before you can challenge a law even if you have committed the wrong (Poe v Ullman)
(3) Factors Courts consider in determining ripeness for pre-enforcement review(somewhat unclear but courts seem to require both criteria)
(a) Hardship
(i) Hardship from choice between possibly unnecessary compliance and possible conviction(Abbot Laboratories v Gardner)
(i

process always falls in this category
(b) Disability discrimination falls here
(2) “a law will be upheld if it is rationally related to a legitimate gov’t purpose”
(a) Actually any legitimate purpose is sufficient
(b) The challenger must prove that there is no legitimate purpose

ii) Intermediate Scrutiny (Gov’t has burden of proof)
(1) Used in following cases
(a) Gender discrimination
(b) Discrimination against non-marital children
(c) Discrimination against undocumented alien children with regard to education
(d) Regulation of commercial speech
(e) Regulation of speech in public forums
(2) “a law will be upheld if it is substantially related to an important gov’t purpose”
(a) The law must both
(i) have an important purpose and
(ii) be substantially related to attaining the goal
iii) Strict Scrutiny (Gov’t has burden of proof)
(1) Used in following cases:
(a) Discrimination based on race/national origin
(b) Generally, discrimination against aliens
(c) Interference with fundamental rights
(i) Right to vote
(ii) right to travel
(iii)right to privacy
(d) Interference with freedom of speech
(2) “a law will be upheld if it is necessary to achieve a compelling gov’t purpose”
(a) The law must be:
(i) Vital and
(ii) Necessary (must prove it is the least restrictive/discriminatory alternative)
3) IS CONGRESS TRYING TO DO SOMETHING?
a) All means which are appropriate, adapted to a legitimate end with in the scope of the constitution, and consistent with the letter and spirit of the constitution are constitutional (McCullough v Maryland [18])
b) Is it a valid exercise of the commerce clause?
i) Pre-1887 Interpretation
(1) Defined by McCullough V Maryland
(a) “Commerce”- commercial intercourse between nations and the rules governing it
(b) “Among the states”- that commerce which concerns more than one state
(2) Congress’s power over the states in this area is absolute (Gibbons v Ogden)
(3) Very few applications of the commerce clause in this period and the cases are very inconsistent