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Constitutional Law I
Villanova University School of Law
Samahon, Tuan N.


Spring 2014 – Professor Samahon


a. Declaration of Independence (1776):

i. Locke – contractual relationship with Britain, return to a state of nature

ii. Government derives it powers from we the people; now it is implicit

iii. Gives reasons why we are doing so severing ties

b. Articles of Confederation (1781):

i. Strong state sovereignty, weak national government

ii. Each state only gets one vote

iii. Government does not have the power to tax, creates problems

iv. No standing judiciary; only tribunals for state property disputes; may create state courts for some crimes

c. Federalist Papers (1787-88):

i. John Jay, Alexander Hamilton, James Madison, writing under Publius

ii. No. 10 – human nature divides people into factions and creates a divided republic; liberty to factions is like oxygen to fire

iii. No. 48 – legislative branch is the most dangerous; the branches of government need to connected while still remaining separate and distinct

iv. No. 51 – government is a commentary on nature; need to create a government that can govern the people and itself, need structural safeguards to deal wit effects of factions – checks and balances/separation of powers/divided republic

v. No. 78 – Judiciary is the weakest branch, can’t enforce; no money to authorize spending; need judiciary to check the power of the legislature to determine whether they are acting in accordance with the Constitution.

d. U.S. Constitution (drafted 1787, ratified in 1789):

i. Creates the three branches of government:

1. Art. I – Legislative Power

2. Art. II – Executive Power

3. Art. III – Judicial Power


a. Interpretation or Imagination

i. Noninterpretivist – should not even attempt to figure out what the text of the Constitution means, instead it should be a mirror of our present sense of fundamental justice; courts are not limited to the Constitutional text

ii. Interpretivist – only form of legitimate judicial review is the interpretation of the written text of the Constitution

iii. Calder v. Bull – Chase expressed a willingness to strike down legislation without regard to explicit constitutional limitation based on “natural law.” But Iredell disagrees – the theories of natural justice are regulated by no fixed standard. The court is in no position to declare an act void when it was within congress’s power to enact it

b. Textual Method – drawn from the present sense of the words of the provision

c. Historical Argument

i. Original Intent – attempt to discover the authorial intent behind any Constitutional provision; prevents the tendency of judges to remake the Constitution to reflect their personal preferences

ii. Original Meaning – attempt to determine what the text meant at the time it was adopted

iii. The “Vectors” of History – more dynamic argument; looks at the way in which Constitutional understanding has changed over time

d. Structural Arguments – claims that a particular principle or practical result I implicit in the structure of government and the relationships that are created by the Constitution among citizens and governments; postulates about the type of government created by the Constitution – use it fill gaps left out about structure from the Constitution

e. Doctrinal Arguments – asserts principles derived from precedent or sometime judicial or academic commentary on precedent; weak because of difficulty of correcting constitutional decisions of the S.C.

f. Prudential Arguments – advancing particular doctrines according to the practical wisdom of using the courts in a particular way; more removed from the traditional sources; usually arguments about proper separation of powers

g. Cultural Arguments – widely shared cultural norms, morality, theories of human autonomy, fairness; when used with other forms they have force – imperfectly reflected in conventional arguments and can serve to fill a gap


a. Marbury v. Madison (1803)

i. Marshall = known for strengthening the federal judiciary

ii. Historical Context

1. Jeffersonians v. Federalists

a. Switch of power from Federalist Adams to Jefferson

b. Appointment of the midnight judges

c. Federalists – strengthen national government

d. Jeffersonians – national government needs to be watched

iii. Three Issues

1. Did Marbury have a right to the commission? Yes

2. Is there a remedy? Yes – the judiciary can review executive actions

3. Whether the court can issue the writ of mandamus/original jurisdiction?

a. Judiciary Act of 1789 – Congress gave SCOTUS original jurisdiction for writs of mandamus

b. No original jurisdiction – outside the restraints of Art. III, §2

i. Affirmative words are also negative implications

ii. Exhaustive list under Marshall

1. Alternative views

a. Protect those 2, but there are others

b. Initial default position, but not locked in stone

c. Marshall’s analysis:

i. Structural implications – Courts are empowered to enforce constitutional limits

ii. Article III’s grants of judicial review over cases arising under the Constitution – case does not arise under unless the Constitution gives the courts the power of judicial review

iii. Constitutional provisions specifically directed at courts – Constitutional principle must not yield to the legislative act of changing the rule

iv. Supremacy clause – “Supreme Law of the Land”

v. Judges Oath – judges would violate oath if they upheld unconstitutional laws

d. Other Arguments (not in Marbury):

i. Precedent

1. Ware v. Hylton, Calder v. Bull, Hylton v. U.S. – ruled on validity of laws

ii. Framer’s Intentions

1. Federalist No. 78 – no legislative act therefore contrary to the Constitution can be valid

iv. Takeaway

1. Marshall – “It is emphatically the province and duty of the judicial department to say what the law is.”

2. Rule: Judicial review allows the judiciary to review executive conduct and strike down legislation that has been passed by the other branches if it in conflict with the Constitution


a. Cooper v. Aaron (1958)

i. Confirms that Court’s power to interpret Constitution is exclusive when other contender is a states; States are bound the Court’s decisions and can not choose to ignore them

ii. President and Congress cannot do things that court rules unconstitutional, but have some latitude in not doing things (i.e., prosecuting) things that the court says is constitutional.

b. Utility of Judicial Review

i. Counter-Majoritarian Role: Congress will manifest will of majority, Courts interpret constitutional rights to protect political minorities. Since Federal judges are appointed for life, they are relatively immune from majoritarian pressure. Because the minority is telling the majority what to do, which creates this dilemma.

1. Rebuttal – Constitutional deliberately used broad te

he defendant will remedy the injury

3. Must be able to be redressed by the court (linked to causation)

a. MA v. EPA (2007) – States have a special position for standing; CO2 has some effect on pollution; that is enough

i. Majority (Stevens – 5): State has quasi-sovereign status – gave up some rights to get into the union = special standing

1. For standing:

a. Injury in fact = particularized injury is the loss of land

b. Causation – global warming’s effect caused by EPA

c. Redressability – would minimize the effects

ii. Dissent (Roberts – 4): Injury is too global/generalized; not concrete, imminence is not presence; can’t trace causation the minimal amount emissions that the EPA would have prevented

4. Main idea = more we demand from parties for standing the harder it is for them to sue; if you fail to meet any requirement then you lack standing

iv. Prudential Rules: Justified by restraint, respect, and autonomy

1. 3rd Party Standing – person must assert own rights, not someone else’s

a. Exceptions:

i. Special relationship between P and 3rd party (i.e. doctor-patient)

ii. Impossibility or impracticability of 3rd party to asserting his or her own interest

iii. Risk that the rights of 3rd party will be lost or diluted unless claimant can assert

2. Zone of Interests – injury must be of the type that the law invoked was meant to protect

3. Organizational Standing – members must be able to sue independently, interests asserted must be germane to association’s purpose, neither claim asserted nor relief request requires member’s participation

c. Ripeness and Mootness

i. Ripeness – fitness of issue for judicial decision, P must either already suffer harm, be faced with specific present objective harm or be under the threat of specific future harm

1. Don’t want judges to prematurely adjudicate cases – preenforcement review only when substantial hardship

2. Fruit is not ripe

ii. Mootness – case is moot if events occur after case is begun that eliminate P’s stake in controversy; a real live controversy must exist all stages of review, not just when filed; fruit has dropped and is rot

1. Defunis case – no more stake; already in law school

2. Roe v. Wade – short lived injury, litigation is longer than the injury; but P could become pregnant again (capable of repetition to P)

a. Exception requirements: (1) the challenged action is in its duration too short to be fully litigated & (2) reasonable expectation that it could be repeated

b. “Wrong capable of repetition yet evading review”

3. More exceptions:

a. Class action – representative of similarly situated people

b. Government voluntarily ceased activity but is capable of resuming

c. Collateral consequences – served time as felon; many disadvantages – sue to overturn convictions