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

Constitutional Law Outline
Professor Strang

The Role of the Courts in Constitutional Interpretation

I.                    Judicial Review and Constitutional Structure
a.       The origins and theory of judicial review
i.   Marbury v. Madison: Establishment of Judicial Review
1.       Power of courts to declare legislation or executive acts invalid as unconstitutional
a.       Implied power of the court
2.       Opinion
a.       Marbury had a right to his commission.
b.       Marbury had a judicially enforceable remedy because
i.   Court provide a remedy for every wrong BUT
ii. Political acts of the President and cabinet done within their discretion are not reviewable by the court.
c.        Marbury was not entitled to mandamus by the Supreme Court
i.   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.
d.       Justifications for Judicial Review
i.   Inferred in a written Constitution
ii. Necessary to the judicial role of interpreting law
iii.Implied from the command of the supremacy clause that the Constitution is the supreme law of the law
1.       Binding on the state courts
iv.                        Article III gives federal courts jurisdiction over cases arising under the Constitution
v.Implied from the fact that judges take an oath to uphold the Constitution.
ii. Judicial Review of State Statute
1.       Planned Parenthood v. Casey
a.       Plurality Opinion—Reasons for upholding the central holding in Roe v. Wade
i.   Precedent—circumstances in Roe have not changed since that decision, thus no reason to overturn the decision.
ii. Covenant—Court stays true to the covenant, the fundamental right of all. If the court stays true, those who disagree with the outcome cannot argue that the court abandoned the covenant.
iii.Credibility—overruling Roe, absent some clear error, would undermine the judicial power
b.       Dissenting Opinion—nothing in the Constitution supports the idea that abortion is a fundamental right.
i.   Invalidating the PA statute removes the issue from the democratic process by cutting out the will of the people and substituting the court’s will
iii.Judicial Exclusivity in Constitutional Interpretation?
1.       Cooper v. Aaron
a.       Court’s power to interpret the Constitution is exclusive when the other contender is a state.
b.       Less clear when the contender is congress or president
i.   President has some practical discretion in enforcing Supreme Court decisions, but not absolute discretion
ii. Legislature can always reenact a statute that has been invalidated by Court within constitutional limits
b.       Power to Review State Court Judgments
i.   Martin v. Hunter’s Lessee
1.       Court has the power to review federal constitutional decisions of a state’s highest court
a.       Article III grants appellate jurisdiction over all cases arising under the Constitution
i.   The Court must decide those that arise from the state courts
ii. The supremacy clause implies that state courts will decide federal constitutional issues
iii.Since Article III does not distinguish between constitutional cases originating in federal court, and those originating in state court, it is implied that the Supreme Court has appellate review over those originating in state court.
b.       There is no state sovereignty over constitutional interpretation
i.   The Constitution abrogates state sovereignty in a number of ways
ii. Supremacy clause indicates that judges are bound by the Constitution
c.        Uniformity
i.   If every state court could interpret the Constitution its own way, there would be 50 constitutions, not one
c.        Adequate and Independent State Grounds Doctrine
i.   Michigan v. Long
1.       Court will not review state court judgments that rest on adequate and independent state grounds
a.       Insulates state judicial decisions from Supreme Court review
b.       Preserves state sovereignty
2.       The Supreme Court will presume that a state court, when deciding cases that present both federal and state law issues, is deciding the case based on federal law UNLESS the state court includes in its opinion a plain statement of its reliance solely on state law.
a.       State constitutions usually afford more protection than the minimum safeguards imposed by the Federal Constitution.
b.       EXAMPLE—Warrantless searches of garbage bags on the street are valid under federal law. If a state Supreme Court rules that warrantless searches of garbage bags violates the state Constitution, the Supreme Court is barred from reviewing the case.
3.       Application of the Doctrine—The Supreme Court may still decide that the state law

nships created by the Constitution among citizens and governments
2.       Postulates that fill gaps created by the Constitution
v.Doctrinal Arguments
1.       Principles derived from Precedent
vi.                                                                        Prudential Arguments
1.       Advancing particular doctrines according to practical use of the Court in particular ways 
vii.                                                                      Cultural Arguments
1.       Widely shared cultural norms—moral concepts of justice, fairness and human autonomy
f.        The Uneven Nature of Judicial Review: Tiered Review and Unequal Status of Constitutional Claims
i.   Minimal Scrutiny or Rational Basis Review
1.       Burden of proof falls on the challenger to prove that the law has no rational relationship to a legitimate state interest
a.       Legitimate state interest is an interest that is otherwise lawful.
b.       Rational relationship means that there is a plausible connection between the law and the state interest
i.   Can be hypothetical
ii. Need not be hard evidence
ii. Strict Scrutiny
1.       Burden of proof falls on the government to show that the law is necessary to accomplishing a compelling government objective
a.       Necessary means essential
i.   Gov’t should show that the law is the least restrictive way of achieving the compelling state interest
b.       Compelling objective means critical importance, not merely legitimate
i.   Overwhelming social importance
iii.Intermediate Scrutiny
1.       Burden of proof falls on the government to show that the law is substantially related to an important government objective
a.       Substantially related means that the law has to more than rational but not necessarily the least restrictive way of achieving the state interest
b.       Important objective means that it more than merely legitimate but not as critical as a compelling objective
c.        Very subjective standard