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

I.            Judicial Review
A.            The Nature and Scope of Judicial Review
Assertion of Judicial Review Power
Marbury v. Madison
Where the Constitution of the US as interpreted by the SC, conflicts with laws enacted by Congress, the SC may declare such laws unconstitutional and invalid. But the clause specifies in which cases this Court is to have original jurisdiction, and that in all other cases its jurisdiction is appellate. 
Argument Against Judicial Review
Inconsistent with separation of powers and equality of the branches. Congress voted by people and the judges are appointed – it is undemocratic. 
Argument Against Legislative Supremacy
Congress enacted the law. The Bill of Rights was designed to protect the minorities from majority governmental action.
Interpretivism vs. Noninterpretivism
Interpretivism – judges should confine themselves to enforcing norms that are clearly stated or clearly implicit in the written Constitution (use original intention of the framers).
Noninterpretivism – courts should go beyond those set of references and enforce norms that cannot be discovered within the four corners of the document (divided on what particular sources should replace or supplement other sources and on how to justify their use). 
                        Review of State Legislation
Martin v. Hunter’s Lessee
Supremacy Clause – a treaty made pursuant to the authority of the US is the supreme law of the land. Review is proper unless there is something in the structure of Constitutional governance established by the Constitution that would preclude the SC from reviewing the state court decision. Such power is necessary for uniformity of decisions throughout the whole US upon all subjects within the purview of the Constitution. 
B.            Limitations on Judicial Power and Review
Advisory Opinions:
Congress can’t constitutionally ask the federal court to give advisory opinions because don’t constitute “a case or controversy” – legal relationship between 2 parties with adverse legal interests. 
Problems of case and controversy and justiciability arise most frequently when a π seeks an injunctions or a declaratory judgment as to the constitutionality of a statute.
Hayburn’s Case & Plaut v. Spendthrift Farms
Case or controversy must be final and not subject to revision – can’t upset existing judgment. 
1.      Injury in fact (A party may have standing to seek pre-enforcement review by showing clearly threatened injury in fact – chilling effect)
Chilling effect/subject to – party alleges that the activity in which the party is engaged is subject to the law in question and if the party would engage in that activity the party would suffer this – the party is refraining in engaging in that activity because of the existence and threatened enforcement of the law.
Allen v. Wright
A private person does not have standing to force the government to comply with the law when the person can show no direct personal injury from the alleged failure of the government to obey the law.
Sierra Club v. Morton – suing on behalf of environment – wanted to use the la

nds come partly from taxes and partly from other sources. 
Plainwell MI – lights on during prayer at graduation.
No such thing as citizen standing. Have to have personal injury – if giving away. Valley Forge
Current rule
·         Federal taxpayer – no standing. Exception – Establishment Clause per Flast v. Cohen. [If you can relate it to something religious.] ·         State taxpayer – no standing.
·         Municipal taxpayer – yes standing. 
·         Standing of voters – must show injury to their right to vote. 
Raines v. Byrd
Line Item Veto – allow the president to cut out certain congressional appropriations. Members of Congress lacked standing to challenge – no direct injury.
Congressional Power to Create Standing
Public Interest Not Enough
Lujan v. Defenders of Wildlife
Congressional authorization meant that the citizen was not suing as an individual but suing as a private attorney on the behalf of the people of the US. No standing – no injury in fact – even when congressional authorization the particular π must satisfy the injury in fact. Π – really cared about the animals and this was an injury. If case involves actual injury – congress can change and say there is standing. If case doesn’t involve actual injury – Congress can’t change.