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Constitutional Law I
Villanova University School of Law
Graham, Tiffany C.


A. The Power of Judicial Review: Marbury v. Madison
1. FACTS: Issue over the appointment of new judges by outgoing President John Adams and the refusal by the incoming President, Jefferson, to honor the appointments. Marbury, a potential appointee, brought the suit directly to SCOTUS seeking a writ of mandamus compelling Jefferson’s Secretary of State James Madison to deliver their commissions.
2. Right to commission
3. Remedy: Distinguish between political acts, which are not reviewable by the courts, and acts specifically required by law, which are reviewable. The refusal to deliver the commissions, Marshall ruled, fell into this later category.
4. Mandamus not allowed
a. Judiciary Act allows the writ
b. But here the write would be at odds with the Constitution; this grant of jurisdiction was in conflict with Article III, Section 2 of the Constitution, which grants SCOTUS original jurisdiction only in all cases affecting ambassadors, other public ministers and counsuls, and those in which a state shall be party. Since issuance of mandamus is not among the types of cases as to which original jurisdiction is conferred on the Supreme Court, Marshall held, the congressional statute is at odds with the Constitution.
5. RULE: If SCOTUS identifies a conflict between a constitutional provision and a congressional statute, the Court has the authority and the duty to declare the statute unconstitutional and to refuse to enforce it.
a. The Constitution is paramount
b. It is emphatically the province and duty of the judicial department to say what the law is
c. Congress cannot increase the jurisdiction/ authority of the federal courts
6. Criticism: Nowhere in the Constitution is it stated that the courts, not Congress, ought to decide whether a given statute does in fact conflict with the Constitution
B. Federal Limits on Judicial Review
1. Martin v. Hunter’s Lease
a. ISSUE: Whether SCOTUS is constitutionally authorized to review the constitutionality of state court decisions
b. HELD: The court could review the constitutionality of a decision by a state’s highest court
c. When the Court is reviewing state court decisions, it is exercising its appellate, not original, jurisdiction
d. Review of state court decisions is limited to questions of federal law
e. Does not cut back on state sovereignty
f. There is a need for uniformity in decisions throughout the nation interpreting the Constitution
2. Cohens v. Virginia: Right to review state criminal cases for constitutionality
3. The Adequate and Independent Ground Doctrine
a. If a state court decision rests on two grounds (one of which is federal and the other of which is not federal), SCOTUS will not take jurisdiction of the case if (1) the non-federal ground is independent of the federal ground or (2) the non-federal ground is adequate to support the judgment
b. SCOTUS may not render and advisory opinion
c. Ashwader Dam Principle- the Court shouldn’t render a decision if it doesn’t have to
C. Judicial Exclusivity in Constitutional Interpretation
1. MARBURY brings up two questions:
a. Is the Constitution the supreme law of the land?
b. Are the courts the ultimate or exclusive interpreters of the Constitution, or do other branches of government hare in that authority?
2. MARBURY is ambiguous
a. Narrow reading: Judicial review is simply a byproduct of a court’s duty to decide cases within its jurisdiction in accordance with the law, including the Constitution
i. Has no bearing on who has the final word on Constitutional interpretation
ii. SCOTUS does not have the final say on certain matters (pardons)
b. Broad reading: Regards the courts as having special competence to interpret law, including the Constitution, so that they are the ultimate supreme interpreters of the Constitution– should have the last word
3. Cooper v. Aaron
a. Arkansas officials claimed that they were not bound by a lower federal court desegregation order.
b. SCOTUS went out of its way to state that the federal judiciary is supreme in the exposition of the law of the Constitution and that the Court’s interpretation of the Constitution is binding on state legislatures and executive and judicial officers.
c. RULE: No one may nullify a judicial ruling based on constitutional law
4. The authoritativeness of SCOTUS decisions
a. Congress cannot overrule a SCOTUS decision (DICKERSON)
b. Questions as to whether SCOTUS rulings are binding on the Executive Branch
D. Political, Constitutional, and Prudential Restraints on Judicial Review
1. Judicial selection: The nomination and confirmation process
2. Impeachment
3. Court-packing
4. Court-stripping- Article III, Section 2 gives Congress the power to make “exceptions” to the Court’s appellate jurisdiction: Ex Parte McCardle
a. Congress does have at least some power to control the boundaries of the Court’s appellate jurisdiction
b. FACTS: McCardle was imprisoned by a military government imposed by Congress as part of Reconstruction. He brought a habeas action charging that the Reconstruction Act under which he was imprisoned was unconstitutional.
c. HELD: The Court upheld Congress’ restriction of the Court’s jurisdiction. The appellate jurisdiction of the Court is conferred with such exceptions and under such regulations, as Congress shall make. The limitation enacted by Congress here was such an exception. Therefore, the Court said it had no jurisdiction to hear the case.
5. Constitutional amendment
6. Notion of internal restraints and external restraints on congressional power to make exceptions to appellate jurisdiction
a. Internal restraints- derive from an interpretation of Article III itself
i. Judicial power shall extend to all cases arising under federal law and affecting certain public officials and admiralty cases
ii. Hart: The exceptions power of Congress may not be exercised in a way that would interfere with the essential or core functions of the Court or destroy the essential role of ht Supreme Court in the constitutional plan (Counter: what are the “core functions?)
b. External restraints- outside of Article III
i. Co

ii. The government’s lack-of-causation defense will be stronger if standing depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume to control
c. Redressability (remedy)
d. Prudential standing doctrines
i. Third party standing
ii. Generalized grievances- a large ground of people have suffered the same loss/ not the kind of claim for which an individual can file suit (tax increase)
iii. Suits outside a law’s zone of interest
e. Congressional power to confer standing
i. Congress has long authorized suits by “private attorneys general” to challenge governmental action
ii. LUJAN rejected the use of one such citizen suit
f. Standing and the separation of powers (can’t transfer responsibility)
g. Legislator standing
i. Have standing to claim that they have been deprived of something to which they personally are entitled or that they have been unfairly singled out for special treatment
ii. Harder question when the assertion is based on loss of political power rather than a private right
G. Political Questions
1. Doctrine is a meshing of two sets of principles:
a. Separation of powers: The Court will not decide matters that it concludes are committed to other branches for decision
b. Various prudential considerations, because of which the Court concludes that it is unwise or unconstitutional for it to consider the case
2. In deciding whether an issue is a non-justiciable political question, the court is determining whether constitutional provisions that litigants would have judges enforce do in fact lend themselves to interpretation as guarantees of enforceable rights
3. Baker v. Carr
a. HELD: The constitutionality of legislative appointment schemes is not a political question (paved the way for one person, one vote rulings)
b. The Court announced a series of factors that must be present in order to make an issue a non-justiciable political question:
i. A textually demonstrable commitment of the issue to another branch (best argument)
ii. Lack of discoverable and manageable standards for resolving the issue
iii. Unsuitable policy determination (can’t decide without making a policy call that is reserved to the political branches)
iv. Lack of respect for other branches
v. Political decision already made
vi. Potential of embarrassment from multiple pronouncements
c. When a question is enmeshed with any of the other