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

Con Law I
Spring 2010
Federal Judicial Power
a.       The Authority for Judicial Review
                           i.      Marbury v. Madison
1.       Before Marbury v. Madison, there was no judicial review
2.       Marbury v. Madison
a.       Marbury wants the court to issue a writ of mandamus to force the secretary of state to enforce his commission
b.       Court looked at the act that gave the court the power to issue the writ of mandamus was unconstitutional because congress doesn’t have the power to increase the original jurisdiction of the court
                          ii.      Authority for judicial review of state judgments
1.       Martin v. Hunter’s Lessee
a.       Virginia had taken land from a British citizen and given it to an American. This act violated a treaty the US had entered with England protecting rights of British citizens to own property in US. US supreme court ruled for the Brit, but the decision was overturned by Virginia court
b.       Court based argument on supremacy clause and said that they had to be able to review state court decisions in order to ensure compliance with supreme law of land (constitution)
2.       Cohens v. Virginia
a.       Court held that state courts could not be trusted to protect federal rights because in many states the judicial salary is dependant on state legislatures
b.       Limits on the federal judicial power
                           i.      Three major limits
1.       Public scrutiny – opinions and reasoning always publicly available
2.       Precedent
3.       Congress can change some authority of supreme court through legislation
4.       There is no clearly defined mechanism to enforce rulings
                          ii.      Interpretive limits
1.       Why must we interpret constitution?
a.       It was written a long time ago, and the founders didn’t envision today’s circumstances
b.       Text can be very indeterminate – the way a sentence is built can have different meanings
c.        Language of the constitution is so broad that some of the provisions don’t have any meaning until interpret w/r/t a particular issue
d.       There are governmental activities that aren’t covered by the constitution, but we have to figure out a way to get them in there
2.       Methods of constitutional interpretation (applied to 2nd amendment)
a.       Historical
                                                                                                   i.      Founders intended to protect citizens rights to form a militia
b.       Textual
                                                                                                   i.      What does “Bear Arms” mean?
                                                                                                  ii.      Does this right only apply to people in organized militias?
c.        Doctrinal (Judicial Interpretation)
                                                                                                   i.      Use the text of US v. Miller and note that the court thinks the right to bear arms applies only to militias
d.       Structural
                                                                                                   i.      If it’s in the bill of rights, then it’s an individual right
e.        Prudential
                                                                                                   i.      An argument from the consequences – what happens if we let everyone have a gun?
f.        Ethical
                                                                                                   i.      Our government is formed because of a fear of tyranny
                                                                                                  ii.      We cherish our individual rights
g.        Other more modern methods
                                                                                                   i.      Original
1.       Original understanding – what framers meant
2.       Original conceptions – what kind of things a particular thing was meant to protect
3.       Original meaning – we care more about what the founders said than what they meant. We want to follow their words as ordinary people would have at the time.
                                                                                                  ii.      Non-Original
1.       Natural law – there is a broader law out there that must be respected
2.       Representation reinforcement – the court is supposed to protect people that that democracy cannot (minorities)
3.       Evolving constitution – the constitution evolves to fit current views of what is right
4.       Tradition – we care what the founders thought, but new generations should get some say as well
                        iii.      Justiciability Limits
1.       Must be a case or controversy
a.       Actual dispute involving the legal relations of adverse parties
b.       Judiciary must be able to provide effective relief
2.       No Advisory Opinions
a.       Neither executive nor legislative may ask about the constitutionality of a pending action
b.       There must be an actual dispute between adverse litigants
                                                                                                   i.      Supreme court was asked their opinion as to whether or not certain activities would retain neutrality in the French and English war
                                                                                                  ii.      Court replied that they couldn’t help because there was no controversy
c.        There must be a likelihood that a decision will have some effect (Hayburn’s Case)
                                                                                                   i.      Disputes over revolutionary war benefits could be filed with federal courts who would determine the amount of benefits. However, the final decision would be made by the secretary of war
                                                                                                  ii.      Court said this would violate separation of powers because a supreme court decision should not be able to be overturned by anyone in the executive branch
d.       Plaut v. Spendthrift Farm
                                                                                                   i.      Originally, the insider trading laws had no statute of limitations. Supreme court set it to 4 years. This left a bunch of cases (including Plaut) out of the statute. Congress then passed a law setting the SOL for these cases at six years (which they can do), and in that law said that cases that had been dismissed which fit under the new statute could be heard.
                                                                                                  ii.      Court held that allowing the rehearing of decided cases was like congress passing a law that overturned a decision. They can’t do this, so the new law was unconstitutional
e.        Notes on advisory opinions
                                                                                                   i.      A declaratory judgment declares the rights and duties of the parties without granting relief (as long as there is a case or controversy)
                                                                                                  ii.      Declaratory judgments are not advisory opinions so long as the the request for the judgment meets all of the other justiciability requirements
3.       Constitutional Standing requirements
a.       Congress can’t do away with these requirements
b.       Injury in fact
                                                                                                   i.      Must be a perceptible and recognized harm
                                                                                                  ii.      Invasion of any right under the constitution, statute, or common law is sufficient
                                                                                                iii.      Any harm to an individual will suffice so long as the court doesn’t think the injury too abstract to satisfy Article III case or controversy requirements
                                                                                                iv.      If you’re seeking an injunction, the injury needs to be continuing or prospective
                                                                                                 v.      If you want prospective relief (relief from future injuries) you have to show it is predictable that you sill suffer the same injury
c.        Causation
                                                                                                   i.      There must be a causal link between the injury and the conduct of the defendant
                                                                                                  ii.      Injury must be “fairly traceable” to the conduct
                                                                                                iii.      Courts are usually unwilling to accept chains of causation that require the actions of absent third parties
d.       Redressability
                                                                                                   i.      The relief requested must be designed to alleviate the injury caused by the defendants conduct
e.        Allen v. Wright
                                                                                                   i.      IRS was instructed to deny tax exempt standing to racist private schools. Black parents of public school children sued stating that the IRS wasn’t doing this, and was subsidizing segregation. Two claims –
1.       first, that they were injured by being stigmatized as a race
2.       second, the subsidy for racist schools was hurting their childrens opportunity for a desegregated education
                                                                                                  ii.      Court held that “being stigmatized” is too abstract an injury and could not be recognized by the court. That “being offended” is a hypothetical injury
                                                                                                iii.      Court held that the second claim constituted a valid injury, but failed to prove that the subsidy was actually resulting in the desegregation of the public schools
f.        Lujan v. Defenders of Wildlife
                                                                                                   i.      Department of interior determined that the endangered species act did not extend beyond the US. Plaintiffs claimed 3 types of harm
1.       Harm to one part of the ecosystem hurts the whole ecosystem
2.       People like zookeepers whose careers depend on biological diversity would be harmed
3.       Procedural injury – that the statute allowed people to sue if the government wasn’t enfoceing properly
                                                                                                  ii.      court held that people without concrete plans to return had not suffered an injury

would be impossible for black people to bring suit because they were not party to the covenant
                                                                                                vi.      Craig v. Boren (Third party standing granted)
1.       Oklahoma law allowed women to buy beer at 18, but required men to be 21. Bartender had his own standing b/c he was being economically injured. He was allowed to assert 3rd party standing for his male customers because he was forced to discriminate against them
                                                                                              vii.      Gilmore v. Utah (T.P.S. Denied)
1.       Death row inmate didn’t try to challenge, so his mother sought a stay of execution. Court denied her third party standing because the third party did not have a case or controversy that could be brought before the court under article III.
5.       Ripeness
a.       Def
                                                                                                   i.      This is a limit on “pre-enforcement” review of a regulation.
                                                                                                  ii.      i.e. someone sues over a law before being arrested under it
                                                                                                iii.      Standing deals with who is the proper party in the action, whereas ripeness deals with when the case is ready to go to trial
                                                                                                iv.      Why do we have this doctrine?
1.       preservation of judicial resources
2.       To prevent injury before it occurs
b.       Modern Law (Abbot Labs) – Pre Enforcement review is appropriate IF
                                                                                                   i.      It would be a significant hardship to not grant pre-enforcement review
                                                                                                  ii.      If the record is sufficient for judicial decision – e.g. if the facts are undisputed enough that a decision can be made as a matter of law
                                                                                                iii.      In criminal cases, plaintiff must have been prosecuted or be in imminent danger of being prosecuted
c.        In a criminal case, there must either be an actual or an imminent arrest. There must be an actual hardship foreseen for a case to be ripe, and the issue must be fit for judicial review.
                                                                                                   i.      Poe v. Ullman
1.       Connecticut passed a law making it illegal for doctors to give advice on contraception. Plaintiffs who wanted advice on contraception sued without being arrested.
2.       Court noted that not only was the law being brought without enforcement, but in the 75 year history of the law, there had never been an arrest under it. Therefore, the case was not ripe.
d.       Abbot Labs v. Gardner
                                                                                                   i.      The FDA had passed a law forcing drug manufacturers to put the common name of drugs prominently on the label. Pharmaceutical companies challenged the law saying that they exceeded authority.
                                                                                                  ii.      Court applied the modern test and determined that since they were just construing a statute, the record was sufficient for judicial review AND that if the drug companies had to wait for a decision, it would cost them billions of dollars (since they would either have to go with the new labels and risk the law being overturned or stick with the old labels and face potential for criminal and civil penalties) the case was ripe for review
                                                                                                iii.      The horns of the dilemma: The companies could either incur the expenses of waiting to see if they were right or wrong in court OR they could follow the law at a high cost to themselves. 
6.       Mootness
a.       Court won’t adjudicate a case where the issue has passed
                                                                                                   i.      i.e. The elements of standing must satisfied throughout the entire course of litigation
b.       A case can be mooted by: