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Constitutional Law I
Villanova University School of Law
Perea, Juan F.

Con Law
Spring 2011
I. Overview of the Constitution
·         Article I: Legislative Power
o   Section 8: List all of Congress’s Powers.
§  3) Commerce Clause: Gives congress power to regulate commerce with foreign nations, among the several states, and Indian tribes.
§  18) Necessary and Proper Clause: Congress can make laws which it thinks to be necessary and proper in addition to enumerated powers.
·         Article II: Executive Power
·         Article III: Judiciary Power and Structure
o   Constitution sets up SCOTUS but congress has the power over lower Fed. Cts.
§  Congress can pass legislation preventing lower courts from hearing cases on controversial issues (i.e. abortion, same-sex marriage, etc.)
·         5th Amendment:
o   Due Process: Persons shall not be deprived of life, liberty, or property without due process of law.
·         14th Amendment:
o   1) All persons in the U.S. are citizens of the U.S. and the state in which they reside.
o   Due Process: States cannot deprive any person of life, liberty, or property without due process of law.
 II.  Power of the Judiciary
**Whenever the Court sites Marbury something special and different is happening.
A) Marbury v. Madison: Establishes the authority of the judiciary to review the constitutionality of executive and legislative acts. 
·         [Before leaving office, Adams nominates Marbury to judiciary and Jefferson refuses to deliver the commission when he comes into office. Actual Holding: SCOTUS is without power to direct the President to deliver the commission.] ·         Brilliant decision by Marshall b/c if SCOTUS had issued the order to the executive branch and the executive branch said “no”, the executive branch would win b/c the judiciary has no power to enforce their decisions.
o    Gave Court power to overrule congress, and kept it from being weakened by conflicting with the president.
·         Ct. Examines 3 questions:
o    1) Does he have a right to commission? 
§  Yes, b/c all appropriate procedures were followed.
o    2) Do the laws afford him a remedy?
§  Yes, judiciary can provide remedies against the executive when there is a specific duty to a particular person, but not when it is a political matter left to executive discretion. (Judicial Review)
o    3) Is writ of mandamus in SCOTUS a proper remedy?
§  Writ is proper remedy but SCOTUS has limited original jurisdiction to the specified cases in Article III Sect. 2 Clause 2 and congress cannot enlarge it, all other cases must be heard on appeal from a lower court.
B) 5 Reasons Marshall Argued SCOTUS can declare Laws Unconstitutional:
·         1) Federalist Argument: The Constitution imposes limits on gov’t powers and these limits are meaningless unless subject to judicial enforcement. 
o   Counter: Many other Constitution’s exist fine w/out this power.
·         2) Inherent to the judicial role to decide the constitutionality of the laws that it applies.
o   Court could interpret and apply law w/out deciding constitutionality.
·         3) Authority to decide “cases” arising under the Constitution implies the power to declare laws unconstitutional.
o   Power to decide cases under the Constitution would be significant even without the power to invalidate federal statutes.
·         4) Judges would violate their oath if they enforced unconstitutional laws.
o   Judges would not violate the oath if they didn’t have the power to strike down such statutes.
·         5) Article VI makes the Constitution the “supreme law of the land.”
o   Doesn’t necessitate that the Court have the power to invalidate laws.
·         Aaron: All federal courts have the authority to review the constitutionality of state laws and the actions of state officials. (Demonstrates how much Ct.’s power has grown over time)
o    [Gov. of AK decided not to enforce DC’s order requiring desegregation, and SCOTUS used Supremacy Clause to declare judicial interpretations of the Constitution the “supreme law of the land.”] C) Constitutional v. Prudential Requirements:
·         Constitutional: Court’s interpretation of Article III, § 2 “cases and controversies” over which SCOTUS has power.
·         Prudential: Although the Constitution permits federal court adjudication, the Court may decide that wise policy militates against judicial review.
·         *Congress, by statute, may override prudential but not constitutional restrictions.
 D) Sources of Supreme Court Decision Making
·         McColluh v. Maryland: Unfair to allow a state to regulate those who have no representation in the state. 
o    [MD passed state law to tax the Federal Bank, Ct. addressed 2 questions:
§  1) Does Congress have authority to create the bank? (yes, under necessary and proper clause in Article I Section 8.
§  2) Is the State tax on the bank constitutional? (no) ] o   3 important things on Fed. v. State gov’t:
§  1) Rejects “compact federalism” and declares that federal gov’t is supreme over the states (states have no authority to negate fed. actions)
§  2) Expansively defines the scope of Congress’s powers.
§  3) Limits the ability of the states to interfere with federal activities
ú   i.e. by imposing taxes or regulations on the fed. gov’t
·         McColluh: Arguments for implied powers
o   Text. Argument/ Framer’s Intent: “Necessary and Proper” does not mean “absolutely” necessary, framers knew how to say “absolutely” (its found elsewhere in the Constitution) but did not, so didn’t intend that.
o   Structural Argument:  Location of Constitutional Text: “necessary and proper” clause is in § 8, where powers are granted to Congress, not § 9, where other restrictions on Congress’s power are located.
o   Logical Argument “Bare Bone Constitution”: Details filled in through experience, “It is a Constitution we are expounding” not a statute.
§  Marshall: “It is a constitution we are expounding” (possible interpretations):
ú  1) Constitutionally granted powers should be broadly construed. (those provisions are meant to endure over time)
ú  2) All provisions of the Constitution should be broadly construed (can’t always have the answers at all times).
ú  3) Meaning of the Constitution changes depending on social norms and needs.
o   Representation Reinforcement: Idea that SCOTUS intervention is justified for the purpose of fixing defects/flaws in the political process.
§  If people don’t like changes they can elect new individuals that reflect the changing social needs/norms.
·         Calder v. Bull: Justices debated whether it is appropriate to use basic values (natural law) to judge instead of the Constituti

. must allege that he suffered or imminently will suffer an injury in fact.
§  a) Injuries to Common Law Rights: Injuries to rights recognized at common law (i.e. property, contracts, and torts) are sufficient for standing.
§  b) Injuries to Constitutional Rights: Must determine 1) which Constitutional provisions bestow rights and 2) whether facts are sufficient to establish such an injury. 
c) Injuries to Statutory Rights: Congress can create a statutory right to sue, even if the P. only has an injury b/c of the statute.
ú  Lujan: Statute must narrow authorization, can’t be a broad authorization for “any person” to sue.
§  d) Other Injuries Sufficient for Standing:
o   2) Causation: The injury must be fairly traceable to the defendant’s conduct
o   3) Redress: P. must allege that a favorable Ct. decision is likely to redress the injury.
o   Lujan: Congress cannot create standing by converting the public’s interest in holding the executive accountable for enforcement of a statute into an individual right enforceable by the courts.
§  [P.’s filed suit against Fed. agency funded projects overseas that threatens the habitat of endangered species overseas, and prevents P.’s from observing them there.  Ct. held that even though statute from congress permitted “any person to commence a civil suit”, Congress cannot create standing for a general grievance.] o   Mass. v. EPA: A state has an independent interest to protect all of the air and earth within its domain and the risk of catastrophic harm is enough to permit standing.
§  [State filed suit against EPA for its refusal to regulate emissions and the detrimental effect that global warming is having on the coastline.  Ct. holds standing b/c of the enormity of the potential consequences and the right of a state to protect its land.] o   Sierra Club: While an aesthetic, conservational, or recreational harm would be sufficient, the party must allege that at least 1 of its member suffered an injury.
§  [P.’s challenged the construction of a recreation area in a national forest, however Seirra Club didn’t show that any of its members went to the forest, so Ct. denied standing] ·          
·         ii. Prudential Standing Principles
o   1) A Party may only assert his own rights and cannot raise the claims of 3rd parties.
§  Elk Grove: The Federal Court will stay out of any matters of domestic dispute involving the rights of parents and their children.
ú  [Father challenges school’s requirement that ever child recited the pledge of allegiance on religious grounds.  Ct. denies standing b/c mother is legal guardian and doesn’t want to have to make a decision on that issue first.]