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Constitutional Law I
Wayne State University Law School
Rothchild, John A.

Constitutional Law


Fall 2017

I. Judicial Review “Authority of the federal courts vis-à-vis other branches of government”

Fundamental principles of our Constitution

Representative government
Democratic accountability
Separation of powers

Marbury v. Madison (1803)

[Original jurisdiction of Supreme Court limited to Art. III cases; Judicable Review Established]

Facts: Marbury was last-minute judicial appointee of President Adams, whose commission was not delivered to him before Adams left office; Jefferson, the incoming president, declined to deliver the commission. A court has the power to give him the mandamus.
RULE: The Supreme Court has the authority, implied from Art. Vi, § 2 to review the constitutionality of executive and legislative actions

Outline of Marbury decision

Does Marbury have a right to the commission? à Yes

Marbury’s commission was signed and sealed by the President, so he was properly appointed.
He was entitled to the commission because the appointment was made.

Does the law provide Marbury with a remedy? à Yes

“When there’s a right there’s a remedy”

If you have a legal right then you have a remedy for it. While there are certain exceptions to this rule, it doesn’t apply here
“The very essence of civil liberty certainly consists in the right of the very individual to claim the protection of the laws, whenever he receives in injury”

Can this court give Marbury the remedy he seeks? à No

Can a court issue the mandamus remedy that Marbury seeks?

Yes, it’s not a political question

Does this court have the power to give Marbury the mandamus he seeks?

Does § 13 of Judiciary Act authorize the Supreme Court to issue a mandamus to the Secretary of State?


Is § 13 of Judiciary Act inconsistent with Art. III?


Does the Court have authority to declare a statute unconstitutional, and decline to enforce it? MOST IMPORTANT

This court has the authority to declare a statute unconstitutional.
“Whenever an act, repugnant to the constitution, can become the law of the land.”
The court has the power to decide more than any other power of government.

Cooper v. Aaron (1958)

[States must follow federal interpretation—federal judiciary is supreme]

Facts: Claim by governor and legislature of AR that states officials have no duty to obey federal court orders [desegregation] RULE: The Federal Judiciary is S U P R E M E. States are not allowed to disregard Federal interpretation of the constitution.

Federal Court Review of State Court Decisions

Martin v. Hunter’s Lessee (1816)

[Supreme Court has power to review state decision à Supremacy Clause]

Facts: VA enacted legislation during Revolutionary War giving the State power to confiscate the property of British Loyalists. Lord Fairfax (Loyalist) willed land to Martin. The State of VA confiscated the land and granted it to Hunter. Hunted sued to eject Martin from the land.
RULE: Supreme Court has appellate jurisdiction over state court decisions involving federal law.

The Supreme court can review state court decisions when the state’s highest court:

Holds a federal law invalid
Upholds a state law against a federal challenge; or
Decides against a claim predicated on federal law

Art. III, § 2: Federal Courts have authority to hear/try cases of Ambassadors, Public Ministers and Counsels [FOREIGN] and cases in which the State is a party [Appellate jurisdiction]

Congressional Control of Federal Court Jurisdiction

Ex Parte McCardle (1989)

[Congress has authority to limit jurisdiction of federal courts]

Facts: Congress repeals power the courts of US to grants writs of habeas corpus.
Issue: Does Congress have the power to take away jurisdiction previously granted to the Supreme Court? Yes, under Art. III, § 2, Cls. 2 Exceptions Clause
RULE: Constitution gives the Supreme Court appellate jurisdiction, but Congress has the power to make exceptions to that appellate jurisdiction. Congress has the power to decide what types of cases the Supreme Court may hear, as long as it doesn’t expand the Supreme Court’s jurisdiction beyond the federal judicial power.
Holding: The case was dismissed for lack of jurisdiction. Act allowed federal courts to grant habeas, and allowed Supreme Court to hear the appeals; Congress repealed portion
Not likely to happen today à Civil War created tension and crisis in Congress, so Supreme Court backed off.

II. The Necessary and Proper Clause

Deals with powers of Congressà CC and Tax/Spending à BROADLY construed

Art. I, § 8, Cl. 18 à Necessary and Proper—placed/listed among the powers of Congress, not the limitations (look at it as expanding powers)
Congress may use any of its ENUMERATED POWERS to achieve any result not forbidden by the Constitution.

TESTà RATIONALE RELATIONS TEST: Congress may use any means that is:

Rationally related to exercise of its enumerated power/the objective Congress is trying to achieve
Not specifically by the forbidden by the Constitution

McCulloch v. Maryland (1819)

[Congress has all powers necessary/proper—fed. gov’t can incorporate bank; state can’t tax]

[Democratic Accountability]

[States lack authority to tax instrumentalities of the fed. gov’t]

Issue 1: Legislative authority of Congress: Can Congress incorporation a bank of the US? YES

Necessary and Proper Clause: Congress shall power to make laws which shall be necessary and proper, (indispensable and without which power would be ineffective) for carrying into execution the foregoing powers, and all other powers vested by the constitution, and in the government of the US, or in any department thereof

Issue 2: Limitations of state ability to legislate: Can a state impose fees on the operation of an institution created by Congress? NO

Inference from the federal supremacy clause principle (Art. 6)

“The power to tax is the power to destroy—no limitation which can allow the state to tax something out of existence.”

The role of democratic accountability

Voters have power to throw people out they don’t want. Measure of safety to protect against too much power.

Modes of Constitutional Interpretation

Historical acquiescence

People have acted on the assumption that the statute is constitutional

Careful legislation

Congress heard strong arguments against constitutionally and still enacted it


The Constitution is meant to impinge on state sovereignty

Nature of constitution

It’s not like a legal code

Textual, no useless verbiage

The Constitution does not contain provisions that are superfluous

Textual, common usage

Look it up in the dictionary


Compare with Art. I, § 10, cls. 2, which says that states may not impose duties on imports or exports “except what may be absolutely necessary”

Underlying purpose

The Framers must have intended to allow the government to select the best available means


The clause is placed in the Constitution among the powers of Congress, not among the limitations

Rothchild’s 10 Things to Take Away:

Allocation of the powers to the federal gov’t to sufficiently accomplish everything that it needs to do but also limits the gov’t so it isn’t a tyranny.

The study of constitutional law is largely the study of how the Constitution goes about creating a government that has enough power to accomplish the goals that the citizens set for it, while at the same time limiting (to an acceptable level) the government’s power to do wrong.

The Constitution was created as a manifestation of the article of confederation. Articles of Confederation didn’t give enough power to the federal gov’t. States still have their owns power.

the Articles failed because they did not give the federal government enough power: the states were too jealous of their own sovereignty to give up much to the new federal government

e.g., there was no executive
e.g., Congress did not have the power to regulate interstate commerce

so, in interpreting the Constitution, it is sometimes useful to refer to the situation as it existed under the Articles

e.g., the Court does this explicitly in M’Culloch v. Maryland:

it notes the contrast between the Articles’ limitation of the delegation of power to the federal government,

eps judiciary from interfering with the other branches. Certain types of issues that should be addressed by political processes.
Justiciability Functions [but particularly standing]

Keeps the judiciary from unduly interfering with other branches: an aspect of separation of powers
Conserves judicial resources, by using them where they are most effective
Assures the cases are presented in a way that leads to high-quality decision making

For a case to be heard by the federal courts, P must get past a series of procedural obstacles which we collectively call requirements for Justiciability

None of the are expressly stated in Constitution
In order to be heard in a federal court, the plaintiff must meet these requirements…

Must not be an Advisory Opinion

Cases & Controversies Only

Must have Standing
The case must not be Moot

Must be a “live” controversy

The case must be Ripe for decision

Harm is imminent/already occurred

Case must not involve a Political Question

Issues for Legislative/Executive to sort out


Article III

“Cases & Controversies”

Prudential Limitations

Although the Constitution would technically allow the S.Ct. to hear the case, they will not for policy reasons.
Congress can override these limits with legislation

Advisory Opinions

Art. III, § 2: Requires a “case or controversy”
Federal courts may not render opinions, which answer a legal question when no party is before the court who has suffered a specific injury.
Declaratory judgment is sometimes allowed; allows one to bring an action to federal court to declare a statute unconstitutional even though it has not been applied to person yet; it is a decision in which the court is requested to state what the legal effect would be proposed conduct by one or both parties (rather than granting damages or injunction). It has the force and effect of a final judgment à 19 U.S.C. 2201(a)


In order to be heard, there must be an actual Case and Controversy, as specified in Article III, §2

There must be a party before the court that faces or has suffered a specific injury

The Supreme Court cannot advise the other branches of government

Policy Reasons

Maintains Separation of Powers by keeping the Court out of the legislative process
Conserves judicial resources (money and political clout) for actual cases that need to be decided
Ensures actual disputes will be brought, not hypothetical questions


There must be an actual dispute between adverse litigants

Courts must dismiss suits where the parties collude to bring the matter to federal court

There must be a substantial likelihood that a federal decision in favor of a claimant will bring about some change or have some effect.

Allowing the Court to merely give an opinion would leave it open to be revised and controlled by legislature. Inconsistent with doctrine of separation of powers.
Judgments within the powers vested in the courts by Article III may not be revised
The Supreme Court operates under the principle of finality
TWIST – Congress does have the power to overturn S.Ct. statutory interpretation by amending laws. So it is difficult to reconcile the finality power with this Congressional power.

Congress can require Federal courts to revise injunctions to be in compliance with changes in the law.