I. FEDERAL JUDICIAL POWER
A. Authority for judicial review
1. Marbury v Madison (1803) – it is emphatically the province and duty of the judicial dept to say what the law is (Court has final say on Const interpretation)
i. Fed judiciary may review the constitutionality of acts of leg branch and of non-discretionary acts of the executive branch
a. may order exec to perform non-discretionary duty that is imposed by law
b. discretionary rights of exec branch – only answerable to electors
ii. Art.III § 2 (SC shall have appellate juris…w/exceptions…) is the ceiling of fed court jurisdiction – Congress may not only remove cases from jurisdiction, may not add things not provided for in Art III
iii. arguments for judicial review – ArtIII § 2 provides fed judic jurisdiction to extend to cases arising under Const, supremacy clause, Art VI requires justices to take oath to support Const so cant honor unconst laws, federalist papers show framers intent to allow judicial review
iv. because SC has final say as to Const interpretation, SC decisions can only be changed by Const Amendment, or overruling by future Court
2. Martin v Hunter’s Lessee (1819) – SC may review state court rulings as well (not in Const but in Judiciary Act of 1789)
i. Const created SC and gave Cong power to create lower fed court, therefore if Cong didn’t create lower court, SC would be virtually powerless unless was able to hear state court decisions (fed Q juris not created until 1875)
ii. state prejudices may obstruct regular administration of justice
iii. necessary to ensure uniformity in the interpretation of federal law
3. Cohens v VA (1821) – SC may review state crim cases if Const issues raised
B. Limits on Fed Jud Power
1. interpretive limits – what weight should be given to text, framers’ intent, const structure, history and tradition, social policy needs, fairness and justice, precedent
i. originalism – limit decisions to things stated or clearly implicit on text
ii. non-orig – Court should have discretion because vagueness of Const, framers’ wanted it to evolve
iii. balance constraint on judicial power with need for Const to be a living doc
2. congressional limits – ability of fed govt to restrict fed court jurisdiction (exceptions and regulations clause)
i. Ex.Parte McCardle (1868) – Cong may make exceptions to appellate juris and Court not at liberty to inquire into the motives of the legislature
3. justiciability limits – judicially created doctrines that limit types of matters fed courts can decide
II. PROTECTION of CIVIL RIGHTS and CIVIL LIBERTIES
A. Application of the Bill of Rights to States
1. originally, 14th Am privileges or immunities, equal protection, due process clauses weren’t used as a basis to apply the bill of rights to states because of narrow interpretation of 14th Am in Slaughterhouse Cases (1873)
2. except for P or I clause, all of the other restrictive interpretations of the 14th am were overturned
3. Saenz v Roe (1999) – for 1st time in Am history, Privileges or Immunities clause of 14th am used to invalidate state law (protect right to migrate, 9th Cir.)
B. Incorporation
1. Important cases
i. Twining v NJ (1908) – expressly recognized the possibility that DP incorporates provisions of the bill of rights and thereby applies to state and local govts
ii. Gitlow v NY (1925) – freedom of speech applies to states through its incorporation into the DP clause
iii. Powell v Atlanta (1932) – DP clause protects fundamental rights from state interference
2. Debate over incorporation
i. total incorporationists believe that all of bill of rights should be deemed to be included in DP clause
a. intent/history – privileges or immunities clause meant to incorporate
b. federalism – is not a sufficient reason for tolerating violations of fundamental liberties, fed shldnt outweigh individual liberties
c. separation of powers
te) may apply constitutional norms to private conduct (Civ Rights Act, but suits are brought under the statute rather than the Const)
3. Public Functions Exception
i. a private entity must comply with the Const if it is performing a task that has been traditionally exclusively done by the federal government
a. original test was broad – look at whether private property used for public purposes (Marsh 1946 – private co owned town, Court ruled that running a city was a public function)
b. current TEST is narrower – look at whether private entity exercised powers traditionally exclusively reserved to state (Jackson v Metro Edison 1974 – running a utility not a traditional public function so no state action)
ii. Rationale for exception
a. govt should not be able to avoid the Const by delegating tasks to a private actor
b. there are some acts that seem inherently governmental in nature
iii. Election Cases
a. an election for govt office, even if a primary election, is a public function and must be in accord w/Const (Terry v. Adams 1953 – TX democratic party excluded blacks from voting in primaries, was unconstitutional)
iv. Management of Private Property
a. running a town is a public function (Marsh)
b. running a public park is a public function (Evans v Newton 1966 – character and purpose of park are municipal, was maintained by city)
c. privately owned shopping centers do not need to comply w/1st am (Hudgens v NLRB 1976)
Logan (1968)- Picketers allowed to protest on a sidewalk that has public access and their purpose was related to the store.
