Select Page

Constitutional Law II
Valparaiso University School of Law
Bodensteiner, Ivan E,


U.S. Const.
Article I – Legislative Branch
Article II – Executive Branch
Article III – Judicial Branch

Standards of Review:
Strict Scrutiny
Test: 1. Does the gov’t have a compelling interest?
2. Is the law narrowly tailored to meet this interest?
• No less restrictive alternatives

Intermediate Scrutiny
Test: 1. Important objective
2. Substantially related means

Rational Basis
Test: 1. The law must be rationally related to a legitimate gov’t interest
2. “Minimal rational relation” b/t the means chosen by the gov’t and the state action

A. Case or Controversy
1. The following justiciability doctrines determine which matters the federal courts can hear & decide. Article III ~ “Case or Controversy”
a. Prohibition on Advisory Opinions, Standing, Ripeness, Mootness, and the Political Question Doctrine.
b. Separation of Powers Doctrine working in unison w/ the justiciability doctrine.

B. Prohibition of Advisory Opinions
1. Fed cts. are prevented from issuing opinions on abstract or hypothetical questions.
There must be actual dispute b/t adverse litigants & there must be a subt. likelihood that a fed ct. decision in favor of a claimant will bring about some change or have some effect.
a. Fed cts. may not give “advisory opinions” Þopinions that give advice about particular legislative or executive action, when no party is b/f the ct. who has suffered specific injury.
i. Advisory opinions can blur the line b/t legislature & ct.
ii. The judicial role is limited to actual disputes, bit giving advice to Congress or the President.
Example: Sec. of State Jefferson can’t write to S.C. asking for informal advice on treaty w/ France.
b. Plaut v. Spendthrift Farm, Inc. (1995) – Congress passed legis. allowing cases on which the fed cts. had rendered final decisions to be re-opened in some situations. *S.C. held unconst. b/c congress can’t undue the finality of the judiciary.
*Finality of decisions
2. Declaratory Judgments
a. Def: ct. is requested to state what the legal effect would be of proposed conduct by one or both parties.
b. Must be concrete questions/controversy thus they are justiciable

C. Standing
1. Determination of whether a specific person is the proper party to bring a matter to the ct for adjudication.
a. Req

atute can overrule
prudential standing requirements b/c not derived from const.
a. Prudential Standing Requirements are in addition to showing injury, causation,
b. The Prohibition of 3rd Party Standing
i. A p can assert only injuries that he has suffered & cannot present the claims of 3rd parties who are not part of the lawsuit.
ii. EXCEPTION: where a p who meets other standing requirements may present the claims of a 3rd party
iii. Singleton v. Wulff – abortion doctors sued for compensation on abortions they performed that were not medically indicated; Ct. focused on the relationship b/t the p and the injured 3rd party and the likelihood that the 3rd party can sue on its own behalf.
® Person may sue to protect a 3rd party’s right only when (1) the relationship is such that the person suing may advocate effectively for the right & (2) there are genuine obstacles to the 3rd party asserting the right in ct.