CONSTITUTIONAL L AW
CHAPTER 1. The SC Authority and Role
§1 The Power of judicial Review
• Judicial Review – is a doctrine that the courts have the power to invalidate governmental action which
is repugnant to the Constitution. “It is emphatically the province and duty of the judicial department to
say what the law is”. – Marbury v. Madison
• State and federal courts have the power to review and invalidate the acts of Congress and of the
Executive which are contrary to the Constitution
A. Reviewing acts of Congress
Marbury v. Madison – the SC held § 13 of the Judiciary At of 1789 unconstitutional, the act was read by CJ Marshal to
enlarge the power of the SC’s original j/d beyond the limits defined in Art. III. This is invalid under the Supremacy
Clause if Art. IV
• Marshall reasons that it is judicial duty to say what the law is, the court must give effect either to the Act or the
Constitution
• Only federal laws “made in pursuance” of the Constitution are the Supreme Law of the Land under Art.
VI Supremacy Clause
• Art. V identifies two methods for initiating the amendment process: congress by 2/3 vote may propose
amendments for ratification by ¾ of the states or 2/3 of the states may apply to congress to call a constitutional
convention “for proposing amendments”
Cooper v. Aaron – (ALSO an example of review of State action) The governor and legislature of Arkansas act
unconstitutionally in attempting to interpose state sovereignty as a justification for refusing to obey SC’s decision
declaring state mandated school segregation unconstitutional.
• The federal judiciary is supreme in the exposition of the law of the constitution, and the principle has ever
since been a permanent and indispensable feature of our constitutional system
B. Reviewing Executive Action
• In Marbury, the Court reasoned that where the Executive possesses legal or Constitutional discretion, judicial
review would be precluded. But it’s the nature of executive action and not the office of the person that
determines the appropriateness of judicial review. The fed. judiciary is supreme in interpreting the Constitution.
C. Review of State Action
• The Supremacy Clause of Art. VI establishes that the Constitution of the United States binds state officials,
“anything in the Constitution or laws of any state to the contrary notwithstanding.” Thus, fed courts may
review the constitutionality of state statutes and the actions of state officials involving matters of federal law.
• When the state courts decide federal constitutional questions, the SC has appellate j/d under Art. III, §2, over such
decisions because of need of uniformity in federal constitutional interpretation
•
Martin v. Hunter’s Lessee – Section 25 of the Judiciary Act of 1789 conferring appellate j/d on the SC over decisions of
a state court is constitution for the reasons stated above
Source of Judicial Power – Article III Jurisdiction
• The “judicial power” , consisting of defined “cases and controversies”, including cases involving constitutional
questions, is vested by the Constitution in. Art. III, in the SC and such inferior courts as congress may establish.
The judicial power has been interpreted to include the power to review and invalidate as unconstitutional both
federal and state action.
,CONSTITUTIONAL L AW
• Unless a case falls within one of the “cases and controversies” identified in Art. III § 2, a fed court must dismiss
the case for want of jurisdiction; courts must decide the j/d question as an antecedent question prior to reaching
the merits. Congress cannot act or subtract from Art. III
• Subject Matter Jurisdiction - Cases arising under the constitution, laws and treaties of the US (federal question
j/d) and cases involving citizens of different states (diversity j/d) THIS BARS ISSUANCE OF MERELY
ADVISORY OPINIONS (they don’t involve an actual case).
• Whether federal courts were needed was left to congress. In the Judiciary Act of 1789, congress created federal
trial courts (district courts) and intermediate courts of appeal, judges under Art. II are protected to “their offices
during good behavior” and prohibit their salaries from “diminishing”.
• Congress cannot prescribe a rule for the decision of a case – US v. Klein (1872)
• Retroactively requiring and Art. III court to reopen final decisions when congress changes the statute
of limitations is in violation of Marbury.
• Art. III gives the Fed Judiciary the power, not merely to rule on cases, but to decide them, subject to review only
by superior courts in the Art. III hierarchy – Plaut v. Spendthrift Farms, Inc. (1995)
• Original Jurisdiction – in all cases affecting ambassadors, other public ministers and consuls, and those in
which the State shall be a party.
• Appellate Jurisdiction – power is given with such “exceptions and regulations as congress shall make”
• A congressional statute withdrawing SC appellate j/d to issue writs of habeas corpus was held constitutional, even
though the case was already pending – Ex Parte Mcardle (1869)
• Certiorari – SC review of lower court’s decisions is discretionary. The losing party below petitions for a writ of
Cert. Cert. is granted when four justices vote to review the decision Rule of Four and its granted for special and
important reasons (when there is conflict between highest courts of different states) or novelty of federal question.
STANDING
Case and controversy requirement – this requires that the case be in and adversary form and context that is capable
of judicial resolution and that its resolution would not violate separation of powers principles. If this requirement is
not met the, the fed courts lacks jurisdiction and therefore power to act
• The fed. court may not furnish opinions on constitutional matters in a “friendly” non-adversary proceeding
• Declaratory judgment – what legal consequences will apply to the conduct of litigants, rather than
provide damages or injunctive relief
• “No justiciable “controversy” exists when parties seek adjudication of a political question, when they ask for
an advisory opinion, or when the question sought to be adjudicated has been mooted by subsequent
requirements.”
Lujan v. Defenders of Wildlife (1992) - Environmental groups lack standing to challenge a regulation by the
Department of the Interior requiring agencies providing funds to projects affecting endangered species to consult
with the Department only if the projects are domestic or on high seas. Although a desire to use or observe an animal
species is a judicially cognizable injury in fact, the groups failed to show that one or more of their members were
personally affected in a concrete manner. A statement of a vague intent to visit the habitat of the species without
concrete plans or dates, is not and actual or imminent, concrete injury. Claims of a nexus between the habitats and the
professional interest of members (zoologists) are “abstract and speculative”.
• 1) Injury in fact – requires and invasion of a legally-protected interest which is (a) concrete and
particularized and (b) actual or imminent, not conjectural or hypothetical
o Associational standing - claiming injury in fact, so long as any of its members might have done
so and the claim is germane to the orgs purpose
o Material bodily, financial harm, (but also intangible ones) vote dilution, loss of opportunity, aesthetic
o The plaintiff must demonstrate personal interest and be himself among the injured
• 2) Causation (fairly traceable) – actionable causal relationship between government action and the asserted
injury, plaintiffs must demonstrate that the injury is “fairly traceable” to the action being challenged and
not the result of some independent action of a 3rd party not before the court.
o The burden is on the P to show causation
o Allen v. Wright (1984) – an allegation that the IRS failed in its legal duty to deny tax exempt status
to racially discriminatory private schools is a sufficient claim by parents where such failure
, CONSTITUTIONAL L AW
diminishes the ability of their children to be educated in racially integrated school (but the P failed to
prove that the alleged injury was fairly traceable to the alleged injury)
▪ A claim of stigmatic injury to racial minorities was held to be too general to confer standing
▪ Separation of powers principles bar suits simply designed to challenge the
policies government agencies adopt to carry out their legal obligations
• 3) Redressability – the P must demonstrate that it is likely as opposed to speculative, that the injury will be
redressed by the remedy being sought (redressed by a favorable decision)
o This requirement is often treated as an aspect of causation
o P’s have to show that their harms will be reduced not eliminated
Prudential Standing Doctrines (in addition to the 3 constitutional requirements) (congress can override these by express)
• 4) Third party standing - the P generally must assert his own legal rights and interests, and cannot rest
his claim to relief to relief on the legal rights or interests of third parties
o Exception in Craig v. Boren – a seller of beer was permitted to challenge as sex discrimination a
state law imposing a higher age threshold on male than female beer buyers, based on reasoning
that buyer and seller had interchangeable economic interests
▪ Third party standing is thus more likely to be allowed the closer the relationship and the
greater the identity of interest with the rightholder, and the greater the unavoidable hindrance
to the rightholder’s own assertion of rights
• 5) Generalized grievances – the court will not adjudicate a claim at the behest of a P who is merely one of
millions of taxpayers or citizens interested in resolving constitutional doubts about governmental action
o Exception in Flast v. Cohen – federal taxpayer status for standing if 2 part test is met:
▪ The taxpayer must be challenging an exercise of congress’ Art 1 § 8 taxing and
spending power and
▪ The enactment must be alleged to offend a specific constitutional limitation on the taxing and
spending power
o Further limiting the Flast exception in Hien v. Freedom of relirion - inapplicable to expenditures
of executive branch funds on faith based initiatives
• 6) Zone of interest – test is purely prudential and that prudential standing obstacles may always be negated by
express action of congress
o Congressional power to confer standing – congress can articulate chains of causation that will
give rise to a case or controversy were none existed before
o Example, P’s economic, as opposed to environmental, interests were not within the
Endangered Species Act’s zone of interest
Baker v. Carr (1962) – Art III case and controversy requires that the party seeking to litigate a constitutional
question, originally or on appeal, demonstrate “such a personal stake in the outcome of a controversy as to assure
that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for
illumination of difficult constitutional questions
• A litigant has such a “personal stake” if he alleges:
o An injury in fact
o Fairly traceable to the defendants action being challenged; and
o Redressable by the judicial relief requested
▪ The injury must be caused by the defendants wrong!!!
▪ The focus is on the party who is litigating not the issue and we use a subjective standard
Mass. v. EPA (2007) - The State of Massachusetts is suing the Environmental Protection Agency (EPA) for denial of
their rulemaking petition in connection to regulation of green-house gases. In order to protect the State’s interest in the
land on the coast, the State of Massachusetts petitions the EPA to regulate gas emissions from cars.
• A litigants whom congress has “accorded a procedural right to protect his concrete interests” here, the right to
challenge agency action unlawfully withheld, “can assert that right without meeting all normal standards for
redressability and immediacy.” (even if its potential injury)
CHAPTER 1. The SC Authority and Role
§1 The Power of judicial Review
• Judicial Review – is a doctrine that the courts have the power to invalidate governmental action which
is repugnant to the Constitution. “It is emphatically the province and duty of the judicial department to
say what the law is”. – Marbury v. Madison
• State and federal courts have the power to review and invalidate the acts of Congress and of the
Executive which are contrary to the Constitution
A. Reviewing acts of Congress
Marbury v. Madison – the SC held § 13 of the Judiciary At of 1789 unconstitutional, the act was read by CJ Marshal to
enlarge the power of the SC’s original j/d beyond the limits defined in Art. III. This is invalid under the Supremacy
Clause if Art. IV
• Marshall reasons that it is judicial duty to say what the law is, the court must give effect either to the Act or the
Constitution
• Only federal laws “made in pursuance” of the Constitution are the Supreme Law of the Land under Art.
VI Supremacy Clause
• Art. V identifies two methods for initiating the amendment process: congress by 2/3 vote may propose
amendments for ratification by ¾ of the states or 2/3 of the states may apply to congress to call a constitutional
convention “for proposing amendments”
Cooper v. Aaron – (ALSO an example of review of State action) The governor and legislature of Arkansas act
unconstitutionally in attempting to interpose state sovereignty as a justification for refusing to obey SC’s decision
declaring state mandated school segregation unconstitutional.
• The federal judiciary is supreme in the exposition of the law of the constitution, and the principle has ever
since been a permanent and indispensable feature of our constitutional system
B. Reviewing Executive Action
• In Marbury, the Court reasoned that where the Executive possesses legal or Constitutional discretion, judicial
review would be precluded. But it’s the nature of executive action and not the office of the person that
determines the appropriateness of judicial review. The fed. judiciary is supreme in interpreting the Constitution.
C. Review of State Action
• The Supremacy Clause of Art. VI establishes that the Constitution of the United States binds state officials,
“anything in the Constitution or laws of any state to the contrary notwithstanding.” Thus, fed courts may
review the constitutionality of state statutes and the actions of state officials involving matters of federal law.
• When the state courts decide federal constitutional questions, the SC has appellate j/d under Art. III, §2, over such
decisions because of need of uniformity in federal constitutional interpretation
•
Martin v. Hunter’s Lessee – Section 25 of the Judiciary Act of 1789 conferring appellate j/d on the SC over decisions of
a state court is constitution for the reasons stated above
Source of Judicial Power – Article III Jurisdiction
• The “judicial power” , consisting of defined “cases and controversies”, including cases involving constitutional
questions, is vested by the Constitution in. Art. III, in the SC and such inferior courts as congress may establish.
The judicial power has been interpreted to include the power to review and invalidate as unconstitutional both
federal and state action.
,CONSTITUTIONAL L AW
• Unless a case falls within one of the “cases and controversies” identified in Art. III § 2, a fed court must dismiss
the case for want of jurisdiction; courts must decide the j/d question as an antecedent question prior to reaching
the merits. Congress cannot act or subtract from Art. III
• Subject Matter Jurisdiction - Cases arising under the constitution, laws and treaties of the US (federal question
j/d) and cases involving citizens of different states (diversity j/d) THIS BARS ISSUANCE OF MERELY
ADVISORY OPINIONS (they don’t involve an actual case).
• Whether federal courts were needed was left to congress. In the Judiciary Act of 1789, congress created federal
trial courts (district courts) and intermediate courts of appeal, judges under Art. II are protected to “their offices
during good behavior” and prohibit their salaries from “diminishing”.
• Congress cannot prescribe a rule for the decision of a case – US v. Klein (1872)
• Retroactively requiring and Art. III court to reopen final decisions when congress changes the statute
of limitations is in violation of Marbury.
• Art. III gives the Fed Judiciary the power, not merely to rule on cases, but to decide them, subject to review only
by superior courts in the Art. III hierarchy – Plaut v. Spendthrift Farms, Inc. (1995)
• Original Jurisdiction – in all cases affecting ambassadors, other public ministers and consuls, and those in
which the State shall be a party.
• Appellate Jurisdiction – power is given with such “exceptions and regulations as congress shall make”
• A congressional statute withdrawing SC appellate j/d to issue writs of habeas corpus was held constitutional, even
though the case was already pending – Ex Parte Mcardle (1869)
• Certiorari – SC review of lower court’s decisions is discretionary. The losing party below petitions for a writ of
Cert. Cert. is granted when four justices vote to review the decision Rule of Four and its granted for special and
important reasons (when there is conflict between highest courts of different states) or novelty of federal question.
STANDING
Case and controversy requirement – this requires that the case be in and adversary form and context that is capable
of judicial resolution and that its resolution would not violate separation of powers principles. If this requirement is
not met the, the fed courts lacks jurisdiction and therefore power to act
• The fed. court may not furnish opinions on constitutional matters in a “friendly” non-adversary proceeding
• Declaratory judgment – what legal consequences will apply to the conduct of litigants, rather than
provide damages or injunctive relief
• “No justiciable “controversy” exists when parties seek adjudication of a political question, when they ask for
an advisory opinion, or when the question sought to be adjudicated has been mooted by subsequent
requirements.”
Lujan v. Defenders of Wildlife (1992) - Environmental groups lack standing to challenge a regulation by the
Department of the Interior requiring agencies providing funds to projects affecting endangered species to consult
with the Department only if the projects are domestic or on high seas. Although a desire to use or observe an animal
species is a judicially cognizable injury in fact, the groups failed to show that one or more of their members were
personally affected in a concrete manner. A statement of a vague intent to visit the habitat of the species without
concrete plans or dates, is not and actual or imminent, concrete injury. Claims of a nexus between the habitats and the
professional interest of members (zoologists) are “abstract and speculative”.
• 1) Injury in fact – requires and invasion of a legally-protected interest which is (a) concrete and
particularized and (b) actual or imminent, not conjectural or hypothetical
o Associational standing - claiming injury in fact, so long as any of its members might have done
so and the claim is germane to the orgs purpose
o Material bodily, financial harm, (but also intangible ones) vote dilution, loss of opportunity, aesthetic
o The plaintiff must demonstrate personal interest and be himself among the injured
• 2) Causation (fairly traceable) – actionable causal relationship between government action and the asserted
injury, plaintiffs must demonstrate that the injury is “fairly traceable” to the action being challenged and
not the result of some independent action of a 3rd party not before the court.
o The burden is on the P to show causation
o Allen v. Wright (1984) – an allegation that the IRS failed in its legal duty to deny tax exempt status
to racially discriminatory private schools is a sufficient claim by parents where such failure
, CONSTITUTIONAL L AW
diminishes the ability of their children to be educated in racially integrated school (but the P failed to
prove that the alleged injury was fairly traceable to the alleged injury)
▪ A claim of stigmatic injury to racial minorities was held to be too general to confer standing
▪ Separation of powers principles bar suits simply designed to challenge the
policies government agencies adopt to carry out their legal obligations
• 3) Redressability – the P must demonstrate that it is likely as opposed to speculative, that the injury will be
redressed by the remedy being sought (redressed by a favorable decision)
o This requirement is often treated as an aspect of causation
o P’s have to show that their harms will be reduced not eliminated
Prudential Standing Doctrines (in addition to the 3 constitutional requirements) (congress can override these by express)
• 4) Third party standing - the P generally must assert his own legal rights and interests, and cannot rest
his claim to relief to relief on the legal rights or interests of third parties
o Exception in Craig v. Boren – a seller of beer was permitted to challenge as sex discrimination a
state law imposing a higher age threshold on male than female beer buyers, based on reasoning
that buyer and seller had interchangeable economic interests
▪ Third party standing is thus more likely to be allowed the closer the relationship and the
greater the identity of interest with the rightholder, and the greater the unavoidable hindrance
to the rightholder’s own assertion of rights
• 5) Generalized grievances – the court will not adjudicate a claim at the behest of a P who is merely one of
millions of taxpayers or citizens interested in resolving constitutional doubts about governmental action
o Exception in Flast v. Cohen – federal taxpayer status for standing if 2 part test is met:
▪ The taxpayer must be challenging an exercise of congress’ Art 1 § 8 taxing and
spending power and
▪ The enactment must be alleged to offend a specific constitutional limitation on the taxing and
spending power
o Further limiting the Flast exception in Hien v. Freedom of relirion - inapplicable to expenditures
of executive branch funds on faith based initiatives
• 6) Zone of interest – test is purely prudential and that prudential standing obstacles may always be negated by
express action of congress
o Congressional power to confer standing – congress can articulate chains of causation that will
give rise to a case or controversy were none existed before
o Example, P’s economic, as opposed to environmental, interests were not within the
Endangered Species Act’s zone of interest
Baker v. Carr (1962) – Art III case and controversy requires that the party seeking to litigate a constitutional
question, originally or on appeal, demonstrate “such a personal stake in the outcome of a controversy as to assure
that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for
illumination of difficult constitutional questions
• A litigant has such a “personal stake” if he alleges:
o An injury in fact
o Fairly traceable to the defendants action being challenged; and
o Redressable by the judicial relief requested
▪ The injury must be caused by the defendants wrong!!!
▪ The focus is on the party who is litigating not the issue and we use a subjective standard
Mass. v. EPA (2007) - The State of Massachusetts is suing the Environmental Protection Agency (EPA) for denial of
their rulemaking petition in connection to regulation of green-house gases. In order to protect the State’s interest in the
land on the coast, the State of Massachusetts petitions the EPA to regulate gas emissions from cars.
• A litigants whom congress has “accorded a procedural right to protect his concrete interests” here, the right to
challenge agency action unlawfully withheld, “can assert that right without meeting all normal standards for
redressability and immediacy.” (even if its potential injury)
