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Constitutional Law I
University of Toledo School of Law
Strang, Lee J.

Con Law I-Professor Strang Spring 2011

I.            Judicial Review and Constitutional Structure
A.      How to Interpret the Constitution
1.       Textism: look at only the text of the constitution and that's it
2.       Original Intent/Meaning: constitution means what the framers/ratifiers intended it to mean; average American would understand the text to mean
3.       Representation Reinforcing: Interpret it to maximize democratic processes
4.       Conventional Morality: interpret in align in what most people think (death penalty)
5.       Critical Morality: in line with what is actually is moral and just
B.      Origins and Theory of Judicial Review
1.       Marbury v. Madison: Establishment of Judicial Review
a.       Three Holdings:
1.       SC reviews constitutionality of legislature
2.       SC reviews const. exec power
3.       SC jurisdiction limited by Art. 3
b.      Power of courts to declare legislation or executive act invalid as unconstitutional (implied power of the court)
c.       Opinion:
1.       Marbury had a right to his commission
2.       Marbury had a judicially enforceable remedy because:
a.       Court provide a remedy for ever wrong BUT
b.      Political acts of the president and cabinet done within their discretion are not reviewable by the court
3.       Marbury was not entitled to mandamus by the Supreme Court
a.       The act was unconstitutional because it gave the court original jurisdiction, contrary to the Art. III grant of jurisdiction over diplomats or between two states. When a Statute and the constitution conflict,
1.       Constitution as a higher law prevails
2.       It is emphatically the province and duty of the court to say what the law is
4.       Justifications for Judicial Review
a.       Inferred in a written constitution
b.      Necessary to the judicial role of interpreting law
c.       Implied from the command of the supremacy clause that the constitution is the supreme law of law (binding on the state courts)
d.      Article 3 gives federal courts jurisdiction over cases arising under the Constitution
e.      Implied from the fact that judges take an oath to uphold the constitution
C.      Power to Review State Court Judgments
1.       Martin v. Hunter's Lessee: Court has the power to review federal constitutional decisions of a state's highest court
a.       Article 3 grants appellate jurisdiction over all cases arising under the constitution
1.       The court must decide those that arise from state courts
2.       The supremacy clause implies that state courts will decide Fed. Const. issues
3.       Since article 3 does not distinguish between const. cases originating in Fed. Court, and those originating in state court, it is implied that the Sup. Court has appellate review over those originating in state court
b.      There is no state sovereignty over const. interpretation
1.       The const. abrogates state sovereignty in a number of ways
2.       Supremacy clause indicates that judges are bound in Const.
c.       Uniformity
1.       If every state court could interpret the const. in its own way, there would be 50 consts. Not one
D.      Tiered Review and Unequal Status of Const. Claims
1.       Minimal Scrutiny or Rational Basis Review:
a.       Burden of proof falls on the challenger to prove that the law has no rational relationship to a legitimate state interest
1.       LSI= an interest that is otherwise lawful
2.       Rational relationship means that there is a plausible connection between the law and the SI
a.       Can be hypothetical
b.      Need not be hard evidence
2.       Strict Scrutiny:
a.       Burden of proof falls on the gov't to show that the law is necessary to accomplishing a compelling gov't objective
1.       Necessary means essential: gov't should show that the law is the least restrictive way of achieving the compelling state interest
2.       Compelling objective means critical importance not merely legitimate: overwhelming social importance
3.       Intermediate Scrutiny:
a.       Burden of Proof falls on the government to show that the law is substantially related to an important gov't objective
1.       Substantially: means that the law has to relate more than rational but not necessarily the least restrictive way of achieving the state interest
2.       Important Objective: more than merely legitimate but not as critical as a compelling objective
3.       Very subjective standard
II.            Doctrines Limiting The Scope of Judicial Review
A.      Congressional Power to Control Fed. Courts Jurisdiction
1.       Power to Establish Fed. Courts:  Article 3 Sec. 1 locates the Fed. Judicial power in one supreme court and 'in such inferior courts as Congress may from time to time ordain and establish'
a.       Permits congress to possibly eliminate all inferior Fed. Cts. And limit the jurisdiction of inferior Fed. Cts.
2.       Exceptions to and Regulations of Supreme Court Appellate Jurisdiction:
a.       Broad v. Narrow:
1.       Broad: allows democratic input in the fed. Judicial process, congress can reign in interpretation
2.       Narrow: congress can limit jurisdiction as long as there is a way the party can bring it still to the supreme court
b.      Article 3 Sec. – grants Sup. Ct. with appellate jurisdiction of all cases within the Fed. Judicial power: not those which it has original jurisdiction
c.       With such Exceptions and infer such Regulations as the Congress shall make
1.       Ex Parte McCardle: McCardle was a newspaper editor imprisoned by the military governor of Mississippi. Under a Fed. Statute, he sought habeas corpus in Fed. Circ. Ct.,

aimant will bring about some change or have some effect
b.      Court may not render advisory opinions
1.       Maintains the separation of judicial and executive power
2.       Maintains the importance of deciding only cases that have concrete adversaries in sharp conflict over real disputes
3.       Dangers of Deciding Abstractions Is:
a.       Lack of zealous advocacy for both sides of the question AND
b.      Possibility of overbroad decision produced by the absence of a real-world application of the issue that narrows the conflict
c.       Declaratory Judgments: not advisory opinions so long as the controversy is sufficiently concrete to make the court's judgment a final disposition of the matter
2.       Standing to Sue:
a.       Constitutional Core of Standing:
1.       Injury in Fact:
a.       Must be a concrete and particularized injury
b.      Actual or Imminent
c.       P must allege the P is going to injured in the future if you want injunctive relief
2.       Causation
a.       Caused by or fairly traceable to the defendant's actions complained of
b.      Not the result of a 3rd party not before the court
3.       Redressibility
a.       Relief sought is obtainable by the courts
4.       Allen v. Wright: IRS granted tax-exempt status to segregated private schools. Black parents of children in Memphis contended that the IRS injured them by doing so because the tax exemption made it financially easier for white parents to shift from the public to the private schools, leaving the public schools disproportionately black. The court held that the P's had an injury in fact, but P's failed at the causation level
a.       The lessened opportunity to attend a fully integrated public school resulted from an independent action of some third party not before the court-white parents who whose to avoid public schools
b.      To establish causation, the P's were required to prove
1.       That there were enough segregated private academies to make a meaningful difference in the racial composition of the public schools
2.       Loss of the exemption would cause a significant number private schools to change their policies and
3.       If the exemption were withdrawn, a significant number of white parents would send their children to public schools