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Constitutional Law I
Wayne State University Law School
Mahoney, Joan

I.                   JUDICIAL POWER
Article III
            § 1 – created the Supreme Court and lower federal courts
§ 2 – conveys  jurisdiction to federal courts to all cases, in Law and Equity, arising under:
–          the Constitution
–          the Laws of the US
–          Treaties
–          all cases affecting Ambassadors, other public Ministers and Consuls
–          admiralty and maritime cases
–          cases where US is a party
–          cases between two or more states
–          cases between a State and Citizens of another state
–          between Citizens of different states
–          between a State or the Citizens thereof, and foreign States, Citizens or subjects
§ 3 – distinguishes between original and appellate jurisdiction
            Original: all cases affecting (1) Ambassadors, (2) other public Ministers and Consuls, and (4) those in which a State is a party. Congress has no authority to change the Court’s original jurisdiction.
            Appellate: all other cases mentioned in § 2. Court can only review a lower decision.   Exceptions Clause – Congress has the power to control the Court’s appellate jurisdiction
Originalism vs. Nonoriginalism
·         Originalism
o   Judges deciding constitutional issues should confine themselves to enforcing norms that are stated or clearly implicit in the written Constitution
o   If the Constitution is silent, then it is for the Legislature, not the courts, to decide the law
o   The Constitution should evolve solely by amendment
o   Against nonenumerated rights: no right to privacy or to reproductive autonomy
o   Strict vs. Moderate Originalism:
§ Strict: court must follow the literal text and specific intent of the framers
§ Moderate: more concerned with the adopters’ general purposes than with their specific intentions
o   Scalia focuses on the “original meaning’ of the constitutional provisions: looks at the historical practices and understandings of the time, not the views of the drafters
o   Arguments for Originalism:
§ the nature of interpreting a document requires that its meaning be limited to its specific text and its framers intentions
§ it constrains the power of unelected judges in a democratic society
·         Nonoriginalism
o   Courts should enforce rights that cannot be discovered within the four corners of the document
o   The Constitution should evolve by amendment AND by interpretation
o   For nonenumerated rights: believe the word “liberty” includes a right of privacy and that reproductive autonomy is an essential aspect of privacy
o   Varieties of nonoriginalism:
§ Representation Reinforcement: nonoriginalism is justified when the Court is providing procedural fairness in the resolution of individual disputes or by ensuring broad participation in the processes and distributions of government
§ Natural Law: the Court should discern and implement the natural law, God given rights, in interpreting the Constitution. Calder v. Bull 1798
o   Arguments for nonoriginalism
§ desirable to have Constitution evolve by interpretation rather than amendment b/c it is a cumbersome process, and thus it is likely that few amendments will be added
§ framers intent as how to resolve constitutional questions is ambiguous
§ framers intended nonoriginalism interpretation
B.                 JUDICIAL REVIEW
Supreme Court has the power to review:
1.      Acts of Congress
2.      Executive actions that are not discretionary
3.      Federal court decisions
4.      State court decisions (unless decision is based on the state’s constitution)
US Constitution is a floor, not a ceiling!
–          Thus, a state is permitted to give MORE rights than the federal constitution, so long as in doing so it does not infringe on someone else’s federal constitutional rights
Marbury v. Madison 1803 p.29
Jefferson refused to deliver the Supreme Court appointment to Marbury. Marbury sought a writ of mandamus, pursuant to Judiciary Act Section 13, to compel the Sec. of State, Madison, to deliver the appointment.
Issue: did the Supreme Court have the power to issue a mandamus as a remedy?
Held: No
Reasoning: While the Judiciary Act gave the Court original jurisdiction to issue the mandamus to a public officer, the Constitution did not grant original jurisdiction in such a case. Court held where an Act and the Constitution differ, the Constitution governs. Thus, Court established judicial review, and deemed the Act unconstitutional. 
Martin v. Hunter’s Lessee 1816 p. 51
HL brought ejectment suit against Martin, and Martin raised federal treaty as a defense. Virginia trial court found for Martin, and appellate court reversed. Martin appealed to US Supreme Court, and it reversed the appellate court. Virginia refused to reverse the decision on the grounds that the Judiciary Act was unconstitutional when it extended appellate jurisdiction of the Supreme Court to the Virginia court. 
Issue: does the Supreme Court have appellate jurisdiction over state court decisions?
Held: Yes
Reasoning: If this were not the case, states would be free to decide things however they wanted with no judicial review – extreme inconsistency.
1.                 JUSTICIABILITY
Constitutional Limitations
·         Congress may NOT override these
·         Art. III §2: Case and Controversy Clause
o   court may NOT issue advisory opinions
o   court can only hear a case if person has standing
o   court may NOT decide issues that are premature or moot
Prudential Limitations
·         Congress MAY override these by statute
·         Must still meet Constitutional requirements!!
·         Even if π meets constitutional requirements, the Court may impose these prudential (judge made) limitations:
o   prohibition against political questions
o   no third party standing
o   no generalized grievances as taxpayer
·         Justifications for prohibiting advisory opinions:
o   separation of powers – keeps court out of the legislative process
o   conservation of judicial resources
o   ensures cases are presented as specific disputes, not hypothetical questions
·         Criteria to avoid being an advisory opinion:
o   must be actual dispute between adverse litigants – standing requirements ensures this
o   must be a substantial likelihood that a federal court decision in favor of a claimant will bring about so

that their children’s chances of receiving an integrated education were diminished by the continued tax exemption to discriminatory private schools.
Court held this claim stated an injury (unlike above) but the injury was not fairly traceable to the gov’t conduct when the injury was highly indirect and results from the independent action of some third party not before the court.
This was first case to hold that causation and redressability are separate requirements for standing.
Court held although the injury may be redressed if the IRS changed its policy, that is insufficient for standing b/c the IRS did not cause the segregation.
Lujan v. Defenders of Wildlife 1992 p. 97 NO REDRESSABILITY – π challenged a change in a federal regulation that provided that the ESA would not be applied to gov’t activity outside of the U.S. 
Court held no redressability when invalidating the new regulation might not change gov’t behavior. The funding agencies may not comply with a revised regulation in the future, which would not redress π’s alleged injury.
·         Prohibition against Third Party Standing
o   generally, a party may not rest his claim to relief on the legal rights or interests of third parties
·         where the third party is unlikely to be able to sue
·         close relationship between π and third party
Elk Grove Unified School District v. Newdow 2004
Court held noncustodial father lacked standing to sue on behalf of his daughter b/c his standing was founded on family law rights that are in dispute, of which the Court has traditionally not gotten involved with
·         Overbreadth Doctrine – permits a person to challenge a statute on grounds that it violates the 1st Amendment rights of third parties, even though the law is constitutional as applied to that π
·         standing for associations
·         it or one of its members must suffer an actual or imminent injury (Sierra Club)
·         Prohibition against Generalized Grievances
o   generally, a party may not sue solely as a citizen concerned with having the gov’t follow the law or as a taxpayer interested in restraining allegedly illegal gov’t expenditures (Frothingham v. Mellon 1923)
o   the Court in Lujan treated the bar on citizen standing as constitutional, not prudential. Thus, Congress cannot override Article III requirement of standing in citizen standing provisions
EXCEPTION: Flast Nexus – π is permitted to sue as a taxpayer if (1) it is a challenge to a congressional expenditure under the taxing and spending clause, and (2) the expenditure is in violation of a specific limitation on the taxing and spending power
Flast v. Cohen 1968 (Warren Court)