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Constitutional Law I
University of South Carolina School of Law
Siegel, Andrew M.

Chapter 1: The Federal Judicial Power
Part I: Authority for Judicial Review
I. Marbury v Madison: Judicial Review of Executive/Legislative Actions
1. Article III: created federal courts but did not specify power/number of courts
a. this power left greatly to Congress
2. Background
a. some of Adams’ commissions for his Justices of The Peace were not delivered before Jefferson took office
b. his admin does not want to deliver them
c. writ of mandamus to order Madison to deliver them
A. makes executive actions reviewable in certain cases
1. political actions not reviewable: where President has discretion; i.e. vetoes/appointments
2. ministerial actions reviewable: when President has a duty to act; i.e. executing will of Congress (or all acts in which President does not have disgression) and individual rights depend on performance of such a duty (when don’t they?)
3. the two can be hard to distinguish
4. Are Exec actions reviewable analysis
a. is this executive action political or ministerial?
b. if political then not, if ministerial then reviewable
c. may be hard to distinguish
5. This is not just the president
a. in this case, means his officers also
b. officers actions are reviewable if they are official duties that affect the rights of individuals (individual rights=gov’t duties)
c. but they are not reviewable if they are actions which conform to the will of the president in an area where he has discretion
B. Congressional Legislation Reviewable
1. The Federal Judiciary Act is held unconstitutional
a. gives Federal Courts original jurisdiction over such matters
b. this is not enumerated in Constitution in cases where Supreme Court has original jurisdiction
2. Establishes those enumerated cases in Article III are a ceiling
a. Congress cannot expand (or reduce) types of cases Court can hear via legislation
3. why?
a. if it was intended for the legislature to determine which cases Supreme Court should hear, then why would they list these in Article III
b. Article III says “ in all other cases, they shall have appellate jurisdiction”
4. Marshall on why courts can review legislation (state or federal)
a. Federal Courts have power to hear cases arising under the constitution thus courts must interpret the Constitution at times
b.Constitution is superior law and must triumph where it and legislation are in conflict (Supremacy Clause)
c. it is the province of the judicial to say what the law is, thus must decide if legislation is in conflict w/ the Constitution (only one can be law)
d. Judges take oath to uphold the Constitution
5. 2 big readings of Madison
a. Judiciary has the final say on Constitutional matters
b. in deciding cases, the judiciary has to interpret the Constitution, but that does not mean legislature does not have the right to interpret it
6. Cooper v Aaron: 1950
a. court says: when we speak, that’s what the Constitution means
7. Marbury also gave courts power to say what the law is and thus declare actions unconstitutional
a. both increased (power of review/upholders of Constitution) and decreased (limits original jurisdiction) powers of the courts
II. Martin v Hunter’s Lesse: Est’d Review of state courts
1. background
a. Virginia passed law taking over estates of British Loyalists
b. however, Treaty w/ the Brits said such would be restored
c. Virginia court gave disputed land to one who got it pursuant to Va. Law and not the treaty
d. thus they interpreted treaty different from the court
e. who said it must go to the heirs of the loyalist
f. court says its interpretation of the treaty is supreme, and must be b/c of Constitutional grants and the need for uniformity in the law
A. Supreme Court has right to review state court decisions in types of cases which fall w/I the federal judicial power (admiralty, state v citizen of another state etc.,) which are listed in the Constitution
1. why can federal courts review state court actions
a. the Constitution gives the Federal Courts power to hear certain types of cases
b. this is one of those cases
c. therefore federal courts can hear this case
d. the Constitution lists the types of cases in which Supreme Court has original jurisdiction
e. in all others it is said to have appellate jurisdiction
f. this is not one of the cases where Supreme Court has original jurisdiction
g. therefore they have appellate jurisdiction
h. therefore they can review the state court’s actions as an appellate court
(note: part of argument goes: that Constitution only creates the Supreme Court and leaves Congress to create lower federal courts as they choose; if Congress did not create such lower courts, Supreme Court would be powerless to hear cases w/I their jurisdiction in which they had appellate jurisdiction if they could not review state court actions; structural argument)
2. states’ rights issues: why this is not contrary to the spirit of the Constitution
a. Constitution acts on states b/c it imposes restrictions on them
b. thus federal court review is not contrary to the principles of the Constitution
3. need for uniformity in laws
a. judges of courts of different states may interpret Constitution, treaties etc. differently
b. thus the laws of the United States would be different in each state
c. need a final authority to harmonize these discordant decisions so the laws of the United States will be the same across the board
4. objection: possibility for abuse of powe

nding today supports originalism
3. arguments against originalism
a. can we know the drafters’ intent
b. was their intent unified?
c. this would be using an 18th century perspective to tackle contemporary issues
d. Constitution is difficult to amend (therefore should make it more open to interpretation, more liquid)
e. what if the founders’ intent was to have the constitution be interpretable
4. nonoriginalism:
a. Constitution is interpretable
b. should evolve by interpretation as well as amendment
c. Constitution should evolve to meet the needs of society
d. it is permissible to protect rights not explicitly stated
e. Constitution was designed to give room to grow
f. written in intentionally broad ways in order to be filled in the future
C. 2nd Amendment as example of interpretation of the Constitution
1. what to take away
a. courts use the same tools but reach different conclusions
2. types of tools
a. history: surrounding adoption of the provision at issues/framers’ intent
b. plain meaning (textual)
c. structural: inferring rules from the overall structure of the Constitution
d. doctrinal: precedent
e. ethical: deriving rules from moral commitments of the American ethos reflected in the Constitution (i.e. limitation of gov’t- no specific provision says it, but it is inferred)
f. prudential: balancing costs/benefits

IV. Justiciability Limits
I. Cases and Controversies
1. Article III says courts can hear “Cases and Controversies”
a. this has lead to some of the court’s justiciability doctrines
b. court will not hear cases that are hypothetical, moot or academic
2. requirements: matter must be
a. definite and concrete
b. b/w parties w/ adverse legal relations
c. real and substantial controversy
II. Ban on Advisory Opinions
1. Court will not render a holding to Congress/president on Constitutionality of some contemplated action
a. this is not an actual dispute
b. it is not b/w actual litigants
2. must be a substantial likelihood a federal court decision in favor of a claimant will bring about some change or have some effect
a. courts do not want to waste judicial resources on rendering decisions which will not