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Constitutional Law I
West Virginia University School of Law
McLaughlin, James A.

Supplemental Outline Book Notes
Chapter One:
Functions of Constitution:
· Constitution creates national government and divides power among the three branches
o In order for the government to act, at least two branches must agree
o Article I: legislative power and vest it in Congress
o Article II: executive power in the president
o Article III: judicial power in the Supreme Court
§ Qualifications for each office specified
§ Federal judges have life tenure so as to enhance the likelihood that their decisions will be based on the merits of the case and not on political pressure
Divided Power between State and Federal Government
· Power divided vertically
o Federalism: used to refer to this vertical division
· 10th amendment: the powers not delegated to the US by Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people= created to make apparent the powers between
· Supremacy Clause: found in Article VI, declares the constitution and the laws of the federal government the supreme Law of the Land
o The effect if the clause is that state and local laws are deemed preempted if they conflict with federal law
· Federalism also limits the ability of states to impose burdens on other states
Protects Individual Liberties
· Major function of constitution to protect individual liberties
Interpretation of Constitution
· Originalism v Non-Originalism: disagreement on how the constitution shall evolve over time
· Originalism: view that judges deciding constitutional issues should confine themselves to enforcing norms that are stated or clearly implicit written in constitution, four corners approach
o The very nature of interpreting requires that its meaning be limited to its specific text and the framers intentions
o Approach is desirable to constrain the power of unelected judges in a democratic society
o Appropriate method of changing the constitution is through amendments
· Non-originalism: view that courts should go beyond that set of references and enforce norms that cannot be discovered within the four corners of the document, not limited to what the framers intended but that the meaning and application shall evolve over time
o Maintain it is desirable to have the constitution evolve by interpretation and not only by amendment to meet the needs of a changing society
o There is not an unambiguous knowable framers intent that can be found to resolve questions
o Suggest this approach was intended by the framers
Authoritative Interpreter of the Constitution
-Who should be the authoritative in interpretation of the constitution?
· All government officials and institutions are required to engage in constitutional interpretation
· Marbury v. Madison: the judiciary has the authority to review the constitutionality of laws and of executive acts
– Three possible answers:
· No branch, equal power among the branches
· For each part of the constitution, one branch be assigned the role of being the final arbiter of disputes , each branch in power to interpret some constitutional provisions
o This is the most accurate approach of today’s system since some questions are left to the other branches of government; political question doctrine
· To assign one branch the final authority for all constitutional interpretation
· Time and time again, Marbury has been reaffirmed stating that it is the providence and duty of the judicial department to say what the law is
Chapter Two:
Article III
– Creates the federal judiciary and defines its powers
· Creates a federal judicial system
· Vest the judicial power in one supreme court
· Ensures the independence of the federal judiciary by according all judges life tenure
· Defines power in terms of nine categories of “cases and controversies”
o Provisions to enforce powers of federal government and authorizes fed courts to serve an interstate umpiring function, resolving disputes between states and their citizens
· Allocation of power between the supreme court and the lower federal courts
· All trials, except impeachment, shall be by jury
· Treason shall consist only in “levying war” against the US or giving aid or comfort to the enemy and requires two witnesses or confession of acts in open court
Authority for Judicial Review
– Marbury v. Madison
· Power of judicial review is firmly established and is an integral part of government, even though it is not expressly authorized in the text of the constitution
· Established the authority for the judiciary to review the constitutionality of executive and legislative acts
Limits on the Judicial Power
· Maximum extent of federal court subject matter jurisdiction
o Principles of: standing, ripeness, mootness, and the political question doctrine- were created through judicial interpretation of Article III
· Limiting federal court jurisdiction, fed court may hear a matter only when there is both constitutional and statutory authorization
Declaring Laws Unconstitutional
· Providence and duty of the judicial department to say what the law is
· Constitution shall control over all other laws
· Martin v. Hunter’s Lessee :Supreme court has authority to review state court judgments
· Cooper v. Aaron: Supreme Court is not limited to reviewing state court decisions: fed courts also have the authority to review the constitutionality of state laws and the actions of state officials

Justiciability Doctrines
Determine which matters federal courts can hear and decide and which must be dismissed
· Prohibition against:
o Advisory opinions
o Standing
o Ripeness
o Mootness
o Political question doctrine
These limits were judicially created and the Supreme Court distinguished two difference sources of the limit rules:
· Declared as a result of interpretation of Article III- limiting judicial power in terms of “cases and controversies”- constitutional limits
· Derived from prudent judicial administration meaning the court has decided certain instances militates against judicial review- prudential limits
o Congress, by statute, can override prudential but not constitutional restrictions
o Both limitations formed through supreme court opinions
· Policy for limitations:
o Separation of powers
o Allows courts to focus their attention on the matters most deserving of review
o Concrete controversies
o Promotes fairness to individuals who are not litigants before the court, i.e. not parties in the lawsuit
Prohibition against Advisory Opinions
· Article III
· To keep separation of powers by keeping the court out of the legislative process, limited to deciding actual disputes- not giving advice t congress or the president
· The court may decide the matter once it turns into an actual dispute, thus why waste time on something that is not a dispute yet- wait for a case
· Ensures that cases are of actual, specific disputes rather than hypothetical legal questions
· For a case to be justiciable and not advisory:
o Must be an actual dispute between adverse litigants
o Must be a substantial likelihood that a federal court decision in favor of a claimant will be about some change or have some effect
The determination of whether a person is the proper party to bring a matter to the court for adjudication- whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues
· Promotes separation of powers by restricting the availability of judicial review
o Limits what matters the judiciary will address and minimizes judicial review of the action of the other branches
o Allen v. Wright
· Serves judicial efficiency by preventing a flood of lawsuits by those who have only an ideological state in the outcome
· Improves judicial decision making by ensuring that there is a specific controversy before the court
o Baker v. Carr
· Serve the value of fairness by ensuring that people will raise only their own rights and concerns and that people cannot be intermeddlers trying to protect others who do not want protection
Requirements for standing derived from the courts interpretation of Article III
· P must all

osed by the act, but for the act the plant would not be constructed
-An actual controversy must exist at all stages of federal court proceedings, at both the trial and appellate levels. If events subsequent to the filing of the case resolve the dispute, the case should be dismissed as moot
-if a case is moot, there no longer is an actual controversy between adverse litigants
-Mootness avoids unnecessary federal court decisions, limiting the role of the judiciary and saving the courts institutional capital for cases truly requiring decisions
· Circumstances that cause a case to be moot:
o Death of particular party
o Parties settle the matter
o Challenged law is repealed or expired
o Change in the facts that end the controversy
· Exceptions to Mootness Doctrine
o Situations where a federal court should not dismiss a case as moot even though the P’s injuries have been resolved
§ Collateral Consequences
· Secondary injury survives after the primary injury has been resolved
· Continuance of some harm that a favorable court decision would remedy
§ Wrongs Capable of Repetition yet Evading Review
· Some injuries occur and are over so quickly that they always will be moot before the federal court litigation process is completed
· Roe v. Wade
o P pregnant when filed complaint challenging the constitutionality of a state law prohibiting abortion
o The court explained that the duration of pregnancy was inherently likely to be shorter than the time required for litigation, court concluded that the challenge to the state law “truly could be capable of repetition yet invading review”
· Requirements for repetition:
o Injury must be a type likely to happen to P again
o Must be a type of injury of inherently limited duration so that it is always likely to be moot before litigation is completed
§ 10 day restraining order
§ Voluntary Cessation
· D voluntarily ceases the allegedly improper behavior but is free to return to it at any time
· City of Erie v. Pap
o D, owner of nude dance club, challenged city ordinance prohibiting business. While case pending, business closed. Court held not moot because the business still had the license for the business and could re-open at any time
§ Class Actions
· Properly certified class action suit may continue even if the named plaintiff’s claims are rendered moot
The Political Question Doctrine:
-subject matter that the court deems to be inappropriate for judicial review. Leaving the constitutional question to be resolved in the political process
· Can only be understood only be examining the specific areas where the court has invoked it
o Electoral process
o Foreign affairs
§ When a war begins and ends
§ Recognition of foreign governments
§ Goldwater v. Carter
· Treaty issue
§ Presidents use of the war powers to constitute
o Impeachment process
§ Nixon v. United States
· Justifications for the Doctrine
o Accords the federal judiciary the ability to avoid controversial constitutional questions and limits the courts role in a democratic society
o Allocates decisions to the branches of government that have superior expertise in particular areas
o Federal courts self interest disqualifies them from ruling on certain matters