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

Mclaughlin_ConLaw I_Spring 2010
I.          The Judicial Function
A.        Judicial Review
1           Marbury v. Madison (US 1803): J. Marshall overruled section 13 of the Judiciary Act as exceeding the constitutional limits on the Supreme Court’s original jurisdiction. In so doing, he affirmed the court’s power of judicial review.
a)         Several things to keep in mind:
(1)     The narrow nature of the power Marshall is declaring:
·          “Where the Court identifies a conflict between a constitutional provision and a congressional statute, the Court has the authority (and the duty) to declare the statute unconstitutional and refuse to enforce it.”
·          Contra – see below Cooper v. Aaron
(2)    The limited power of the court with regard to “enforcement.” Note that the Court can’t nullify the act it can only refuse to enforce it.
(3)    Marshall’s response to the sentiment that the Court was a “Anti-democratic” institution
·          At the time of the decision, Marshall (and the Federalist court) were under attack from the Jeffersonian Republicans for being “anti-democratic” and elitist (the Federalists were known for protecting property interests). In addition, the court as an institution was under attack as an institution b/c it was the only unelected branch.
·          In an effort to respond to these concerns, Marshall borrowed an argument from Hamilton –
(i)       That the constitution is the ultimate manifestation of the will of the people, AND
(ii)     That the court has the unique role of safeguarding the constitution from mismanagement/interpretation by the other branches that may be more subject to political whims…
(4)    Brilliance of decision: “rejecting and assuming power in a single breath”
·          At the time Marshall handed down decision, Cts were in a vulnerable state and their powers were largely undefined. The Ct was also uniformly Federalist and faced a particularly antagonistic Republican executive and legislature.   Marshall wisely sacrificed the Courts minor power to hear cases over writs of mandamus, while asserting the much more important power of judicial review. More importantly, by not issuing the writ he left the executive w/ nothing to do. Had he ordered the writ Madison would have been sure to ignore it, only further undermining the legitimacy of the Court.
·          Note: Often the bounds of the courts power are determined by the court’s recognition of what it can and can’t enforce. The few times the court has overstepped these bounds it has been defeated – either by amendment, war…only hurting the legitimacy and authority of the branch.
2           Cooper v. Aaron (US 1958): Arkansas officials claimed that they weren’t bound by decision in Brown v. Bd. Of Ed. b/c Arkansas wasn’t a party.    Ct reads Marbury as holding that, “the federal judiciary is supreme in the exposition of the law of the Constitution.” Thus, under Marbury and the supremacy clause Brown’s interpretation of the 14th A. is (by the court’s argument) the supreme law of the land. 
a)         Note: This sweeping notion of judicial supremacy is at odds with the more limited doctrine set forth in Marbury. 
B.        Supreme Court Review of State Court Decisions
1           The Judiciary Act of 1789, Section 25
a)         Gave the Supreme Court authority to hear appeals from state courts in cases involving questions of federal law.
b)        (Note: With the rise of states’ rights agitation during and after the War of 1812, the Court’s right to review such rulings was challenged).
2           Martin v. Hunter’s Lessee (US 1816)(J. Story), Defended the legitimacy of S.Ct. review of state court interpretation of federal law and rejected VA court’s challenge of section 25.
a)         Decision relied on the text of Art. III and Art. VI
(1)    Art. III
·          Art. III grants S.Ct. appellate jurisdiction but left it up to Congress to create any federal courts.
·          Since the Framers knew there might not be any federal courts, they must have been talking about appellate jurisdiction in cases involving state courts.
(2)    Art. VI (Supremacy Clause)
·          While the Supremacy Clause directs the state judges to honor the Constitution over conflicting state laws, the Framers nonetheless provided the S.Ct. review in such cases to ensure the supremacy and uniformity of federal law.
·          (Note: language reflects general distrust of states by Federalists)
3           Cohens v. VA (US 1821), Held that the S.Ct. could hear Cohen’s appeal under section 25 and rejected VA’s argument that the State had the final say on matters of constitutional/federal law.
a)         NOR, did it matter that here, unlike in Martin, the state was party to the suit. Art. III, section 2 gives the S.Ct. appellate jurisdiction in “ALL cases arising under the Constitution, laws, treaties of the U.S., “whoever may be the parties.”
b)        Although the 11th A bars federal jurisdiction where a citizen brings suit against a state, we do NOT have an 11th A. problem here because the state filed the initial action – this is simply an appeal from a state-initiated criminal case.
C.        Adequate and Independent State Grounds
1           Section 25 of the Judiciary Act of 1789, Congress expressly limited the S.Ct.’s review of state court judgments to questions of federal law. If a state court had also decided questions of state law, the S.Ct. couldn’t review the correctness of those state decisions. Though Congress later dropped this limitation on the scope of review, the S.Ct. has continued to follow that principle.
2           Problem Case: When a state court’s judgment rests on two alternative grounds (state and federal).
a)         In this situation, the S.Ct.’s review of the case could have no possible effect on the rights or duties of the parties (the state could always ignore it and decide it on state grounds).
b)        Sounds a lot like an “advisory” opinion by the S.Ct. to the states (“If we were to decide this on federal grounds, this is what we would recommend you do…”)
c)         For this reason, when the requirements of the adequate and independent state grounds doctrine are met, the state court’s decision is absolutely shielded from S.Ct. review, no matter how erroneous that state court’s handling of federal law.
3           “Adequate and Independent” State Grounds:
a)         Adequate: 
(1)    (1) Fully sustains the result; and
(2)    (2) Does not itself violate the Constitution/federal law
b)        Independent:
(1)    One that is not based on the state court’s understanding of federal law
D.        Congressional Control of Federal Court Jurisdiction
1           Art. III, section 2
a)         “…In all other cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such exceptions, and under such Regulations as the Congress Shall Make.”
2           Introductory Notes:
a)          Why was Congress given this power?
(1)    In part, it was a compromise — at the time of the framing there wasn’t a consensus on how to organize the courts (major disagreement whether the creation of lower federal courts would infringe upon the power of the state courts);
(2)    Safeguard on abuse of power by court (indirectly subjecting the Court to popular accountability)
·          Other safeguards include: executive power of appointment, life-long tenure, institutional safeguards of law (written opinions), self-inflicted prestige wounds (Dred Scott), Amendment, no power of the purse…
b)        Contrast the detailed provisions (Art. I and II) concerning the power of the leg/exec, with Art. III.
3           Ex Parte McCardle (US 1869) [75]: The power of Congress to deny jurisdiction?
a)         There is language in this decision suggesting that Congress has absolute power to withhold Supreme Court appellate jurisdiction under the power to make exceptions.
b)        But the holding is actually quite narrower – McCardle simply upheld the power of Congress to repeal an 1867 statute that gave the Supreme Court power to review habeus corpus decisions. BUT, the Court was careful to point out that the repeal did NOT affect other statutes giving the power to review habeas corpus decisions.
c)         See Ex Parte Yerger (US 1869): In the same term, Court held that denial of habeus corpus could be reviewed by a petition for habeus corpus and certiorari in the Supreme Court under the All Writs Act.
4           United States v. Klein (US 1872): Clear decision holding denial of jurisdiction to a federal court unconstitutional
a)         Facts: Statute allowed recovery of property seized by U.S. Gov’t during the Civil War upon proof that the owner had not given aid or comfort to the rebellion, and the S.Ct. had held that such proof could be made by producing a Presidential pardon for Confederate activities. The Congress then amended the statute while Klein’s case was pending to provide that a pardon was instead to be taken as proof that the owner had given aid and comfort to the rebellion and it deprived all courts of jurisdiction to award property to a person with a pardon.
b)        Holding: Found the amendment to be unconstitutional. 
c)         Congress may NOT dictate the result in a pending case and use its power over jurisdiction to deny a substantive right. 
d)        Structural Argument (violation of separation of powers)
(1)    Usurping power of Ct. to decide “case or controversy”
(2)    Denying executives power to issue pardons
·          Question: How else can McCardle and Klein be distinguished?
·          In Klein, unlike McCardle, all avenues of recovery were closed thereby denying the substantive rights of the party which were at stake. 
II.       Justiciability
A.        Introduction
1           Justiciability is a body of judicially created doctrines that define and limit the circumstances under which an Art. III federal court may exercise its constitutional authority, including its authority to engage in judicial review.
a)         The article III “case-or-controversy” requirement; and
b)        Prudential considerations involving perceptions of the proper role for federal court w/ constitutional structure of government.
2           Requirements:
a)         Must present a case or c

act: 4 parties receiving water from the project filed suits against the FWS and Secretary of the Interior , arguing that the ESA required that the potential economic impact be considered whether or not to complete a project that will danger endangered species. They claimed standing under the “citizen-suit” provision of the ESA.
(ii)     The broad citizen-suit provision: (1) includes cases involving over and under enforcement of the ESA; (2) creates legitimate basis for standing here b/c (a) there is an alleged economic injury; (b) the injury is “fairly traceable” to the Services Bio Opinion and is “likely” to be redressed.
c)         Redressibility: Focuses on relationship between injury and relief sought which must be designed to alleviate the injury caused by Ds conduct.
3           Generalized Grievance: 
a)         General Rule: 
(1)    Precludes Art III courts from entertaining “citizen” or “taxpayer” lawsuits in which the only injury claimed by the P is the shared harm experienced by all citizens and taxpayers when the gov’t fails to comply w/ the Constitution or laws of the U.S. Unless the P can show that the challenged gov’t action caused him to suffer a particularized injury (eg. property damage) standing will be denied.
(2)    Frothingham v. Melon, (1923): no taxpayer standing to challenge federal spending measure as inconsistent w/ the 10th Amendment (sovereign immunity).
b)        Exception: Flast v. Cohen
(1)    Court has since then made it clear that this will be a NARROW exception (probably will only apply in Establishment Cl. cases).
4           Third Party Standing
a)         Generally there is not third-party standing, must assert only injuries that he or she has suffered
b)        4 Major Exceptions
(1)    Where the Third Party is Unlikely to be Able to Sue
·          Eisenstadt v. Baird – Mass law made it a felony to distribute contraceptives to unmarried parties. HELD def. had standing because “unmarried persons denied access to contraceptives in Mass. are not themselves subject to prosecution and, to that extent, are denied a forum in which to assert their own rights.”
(2)    Close Relationship between Plaintiff and Third Party
·          Craig v. Boren – bartender had standing where the prohibition against male drinking. Bartender suffered economic loss from the law, thus fulfilling the injury req.
(3)    The Overbreadth Doctrine
·          “Given a case or controversy, a litigant whose own activities are unprotected may nevertheless challenge a statute by showing that it substantially abridges the first amendment rights of together parties not before the court.” Village of Schaumburg v. Citizens for a Better Environment
(4)    Standing for Associations
·          An organization has standing to sue on its own behalf if it has been injured as an entity. For example, an organization has standing to challenge conduct that impedes its ability to attract members, to raise revenues, or to fulfill its purposes. Havens Realty Corp. v. Coleman
5           Legislative Standing
a)         Raines v. Byrd: 
(1)    Contra, Clinton v. NY
b)        Powell v. McCormack: 
D.        Mootness
1           Basic Principle: That Cts. will not decide cases in which there is no longer any actual controversy. 
2           Typical Case: Where litigants clearly had standing to sue at the outset of the litigation but events occurred once the lawsuit had gotten under way which deprived litigants of the necessary stake in the outcome.
a)         Despite its Constitutional origin, the Court has carved out a variety of exceptions to it. Harms, which can prevent a case from being held moot:
(1)    A continuing harm to the P;
(2)    The likelihood of the future recurrence of past harm; (D’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice Friends of the Earth)
(3)    The probability that the future cases will evade judicial review. [quintessential example:. Roe v. Wade];
(4)    Class actions.
E.        Ripeness
1           Basic Principle: Case has not yet become concrete enough.