Select Page

Constitutional Law I
Wayne State University Law School
Sedler, Robert A.

I) Judicial Review
A) Nature and scope of judicial review
1) Lessons learned from Marbury v. Madison
(a) Article 3 enumerates what the SC can hear under original jurisdiction and the Judiciary Act of 1789 cannot create new ways, so the only way the court can hear this case is under guise of review of lower courts
(b) When the laws of Congress conflict with the cons, the SC has a duty to declare such laws uncons and invalid
(c) Principle of Cons adjudication – Court should NOT decide on Cons grounds if it can be disposed of on non-cons grounds; decide SMALLEST issues FIRST – Martin
(d) Statutes should be interpreted to avoid cons questions if at all possible
(e) Judicial review – NOT in cons, but necessitated or implied
(f) Supremacy clause – Cons is supreme law of the land and all subsequent laws need to be in compliance with cons
(i) If cons isn’t supreme it wouldn’t be the cons – Marshall
(g) Appellate jurisdiction – SC has jurisdiction to review state proceedings
2) 3 guidelines of cons law interpretation
(a) Court should decide on NON-cons grounds if possible
(b) Where possible statutes should be interpreted to avoid cons conflict
(c) Court should decide on narrowest grounds possible
3) Review of state legislation (supremacy clause) – SC can review all treaties, laws, state court decision, etc. of U.S.
(a) When federal and state courts disagree, the federal court trumps the state
(b) This ensures the uniform interpretation of state law
4) Interpretivism (originalism, strict constructionism)
(a) Judges are only to look to (1) the text and (2) historical practices of the time for making decisions; must NOT go beyond these two things
(b) Text is the MOST important
(c) Laws must violate something in the text to be deemed uncons
(d) Intention of the framers
(e) When the cons is silent, it is up to the legislature to come up with the law
(f) Cons only evolves by amendment
(g) Court doesn’t use it
(h) Arguments in favor of
(i) Constrain unelected judges in a democratic society
(ii) Interpreting a document is inherently limited to the text and the framers’ intentions
5) Non-interpretivsim (non-originalism)
(a) Courts should go beyond those set of references and enforce norms that cannot be discovered within the four corners of the document
(b) In order for the Cons to protect the individual rights of citizens, it needs to be interpreted broadly
(c) Cons can NOT only

tened present injury
(i) Chilling effect – when someone refrains from doing something b/c of the existence and threatened enforcement of a law
§ U of M speech code – you can’t say certain things
§ Contraception cases – gov’t can’t say we are NOT going to enforce the law. But some courts have held that non-justiciable b/c of long pattern of non-enforcement.
(ii) Things that constitute an injury
§ Maintenance of environment for personal enjoyment
§ Denial of equal treatment
§ “Reasonable concern” of pollution if danger to people, NOT just environment
§ White person living in racially segregated apartment building; violation of statutory right to interracial associations
§ Someone who witnesses animal cruelty at the circus
§ Aesthetic and environmental injuries, as long as P claims to suffer harm personally
§ Person residing in district where lines unconstitutionally drawn
§ When an individual is actually injured
Things that DO NOT constitute an injury