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Constitutional Law I
Villanova University School of Law
Lanctot, Catherine J.

Judicial Review and Constitutional Structure

Basic Framework for Arguments:

· Text: Article III
· History / Original Intent
· Judicial Precedent
· Structure (gov’t or document)
· Other values (people)
Not “policy argument”. Constitution seen as protecting certain values, principles that aren’t expressly stated in constitution but are embraced and embodied by the constitution – Federalism, equality


Judicial Review: The power of the courts to declare acts of government and governmental actors unconstitutional (void or invalid according to the court’s interpretation of the constitution)

Cases covered:
Marbury v. Madison(1803)
· Court based judicial review on 2 fundamental propositions:
o (1) Nature of the Constitution itself (fundamental law, superior to and prevails over ordinary legislation)
o (2) Constitution is a species of law, and under the constitution It is emphatically the province and duty of the judicial department to say what the law is
· Any limitations in S. Ct. jurisdictions must be limited and must not go to the “essential function of the court”

Cooper v. Aaron (1958)
· Supreme Court says that federal judiciary is supreme in the exposition of the law of the Constitution
· When the Supreme Court interprets the Constitution, it’s binding on the states

Martin v. Hunter’s Lessee(1816)
· Issue: whether the Court would ever review an issue of federal law that was decided by a state court. (Virginia sup. court said US Supreme Court had no reviewing authority)
· Supreme Court Says: They get to decide whether or not state court correctly applied federal law. 3 Reasons:
o (1) Strong textual argument
§ Since state courts are allowed to hear and decide federal claims, and since Article III gives SCOTUS jurisdiction over all cases arising under federal law and Constitution, then by defn, SCOTUS can decide all federal and constitutional issues – no matter where they come from.
§ Congress had to create a SCOTUS (Art. III) – once jurisdiction was created, SCOTUS had authority to exercise it
§ “All cases” – It’s the case, not the court
§ “Absence of the text” argument – it doesn’t say otherwise
o (2) History
§ The 1st Congress – Judiciary Act of 1789 – unequivocally provided for the SCOTUS review of SCOTUS judgments that involved issues of federal law. (argument that these people unmistakably thought that there was this kind of review authority)
o (3) Values:
§ Uniformity was an essential value at the time of the framing of the constitution
o (4) Response to Virginia’s argument about state sovereignty
§ Uniformity of federal law, Constitutional law. Don’t want the Federal Constitution to mean 50 different things in 50 states.
§ States are sovereign, but only within the framework of the Constitution

Court’s Jurisdiction / Exceptions Clause:

Ex parte McCardle (1869)
· Issue: Whether Congress could, consistent with Article III, take away the jurisdiction of the court
· Supreme Court says: Yes, under the exceptions clause “In all the other Cases before mentioned, the S.Ct shall have appellate Jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”
· Note that the prisoner in this case still had avenues for appeals (Court points out)
· Arguments: Reading narrowly and broadly –
o Arguing for limited exceptions power: Read McCardle narrowly –
§ Emphasize a narrow interpretation of McCardle (it just took away one avenue for appeal)
§ Language of the exceptions power is more consistent with a modest tinkering rather than with a wholesale kind of repeal of jurisdiction
§ Emphasize that an unlimited Congressional power would destroy the essential function of the S.Ct.
o Arguing for broad exceptions power: Read McCardle broadly –
§ cite the actual language of McCardle –suggests that the power is broad
§ A broad exceptions power is itself a part of checks and balances in our system – b/c the court has this broad power of judicial review – the threat of having their jurisdiction taken away acts as a sort of restraint on the court from going overboard with its judicial review

US v. Klein (1872)
· Manipulation of jurisdiction might not survive, even under the exceptions clause, if what Congress is trying to do is to control the substantive result
· Here, Congress was trying to affect the outcome (more obvi

of federal legislative officers, it was an area left to the sole control of the federal government
o Dissent: There’s nothing in the Constitution that precludes the states from adding limitations, so they should be able to do this (there’s always a political check)

Commerce Clause:
“Power to regulate commerce among the several states”

Factors to Consider:
· Commerce?
o Is what’s being regulated commerce?
· Interstate?
o Is it interstate commerce?
· Regulate?
o Whether or not what congress is doing can be said to “regulate” within the meaning of the Constitution
· Other limitations
o Political check – assuming that the first tests are met, court will not interfere, because there is a political check
o 10th Amendment check – undefined areas of regulation that were never intended to be subject to federal authority, so under the 10th amendment they are reserved for the states
§ Police Power – states have, Congress doesn’t
· Health, Safety, Welfare, Morals

Gibbons v. Ogden (1824)
· Broad view of commerce power: Congress can legislate with respect to all commerce which concerns more States than one. Commerce includes not only buying and selling, but all commercial intercourse.
· May also affect intrastate matters, so long as the activity had some commercial connection with another state.
· This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution
o 10th Amendment – is no bar to the commerce power

(In notes – Lottery case and case on Child labor law of 1916 (Hammer))

NLRB v. Jones & Laughlin Steel (1937)
· Substantial effect theory: As long as the regulated activity has a substantial effect on interstate commerce, it counts as affecting interstate commerce . . .