CONSTITUTIONAL LAW OUTLINE.

I. Judicial Review
A. Constitutional basis
1. Article III
a) Case or Controversy Requirement
2. Original Jurisdiction
a) Ambassadors
b) Other Public Ministers and consuls
c) State Governments suing one another (State v. State)
3. Appellate
a) All other cases
b) Subject to exceptions
c) Under such regulations as congress shall make
d) Scotus – via writ of certiorari (discretionary)
B. Marbury v. Madison
1. Not the first judicial review, but First time Scotus ruled an act of congress
unconstitutional. There is a conflict of federal law and of the constitution
a) Ruled Congress CANNOT expand the original jurisdiction of
SCOTUS.
2. The statute conflicts with Constitutional text.
a) Textual based argument through:
3. Article 6 requires a judge to take an oath to support the constitution.
a) “Are you asking me to violate my sacred oath of office? How dare
you!”
4. Article 3- jurisdiction of judicial review “arising under constitution”
5. Article 6- Supremacy clause
a) Statutes must be made in pursuance of the constitution
b) Congress can expand appellate jurisdiction of federal courts
6. But not beyond constitutionally permissible limits of Article III
7. Judicial review can declare 4 categories unconstitutional:
a) State law
8. Cooper v. Aaron
a) This decision furtherd Marbury when it declared the basic
principle that the federal judiciary is supreme in the exposition of
the law of the Constitution. In other words, the Supreme Court’s
rulings are the highest law second to the constitution.
b) State court rulings
c) Executive branch rulings
d) Legislative branch rulings
9. Supreme law of the land
 a) SCOTUS has the authority and duty to declare a statute
unconstitutional and refuse to enforce it if it conflicts with the
constitution.
b) An act of legislature repugnant to the constitution is void
10. A government of laws, no person is beyond the law, no body established
under the constitution is beyond the law.
a) Hierarchy of Law
(1) Chronological statue trumps previous statute
(2) Higher plain of authority trumps lower plain
(3) Constitution trumps all laws, if the laws are not made in
pursuance of the constitution.
b) The constitution is higher law and trumps mere statutory law.
(1) The people create the constitution.
(2) The people send members of congress to congress.
Popular sovereignty. The people are the boss of congress.
(3) The people gave authority to these agents. Agents cannot
go beyond the authority delegated to them.
(4) When the supreme court declares a law unconstitutional,
it is saying the agents have acted unconstitutionally and
therefore have acted outside the given power of the
people.
(a) However, the Supreme Court appaers to have the
last word but the people do through constitutional
amendment or changing the line up of the court.
c) When a court decides if a particular act is unconstitutional, they
will act modestly and only eliminate the provisions that are
unconstitutional. Only unconstitutional portions are excised
II. Political Question Doctrine - Refers to allegations of constitutional violations that the
federal courts will not adjudicate – the matters are left to the elected branches to resolve
A. Article III Section 2 clause 1 describes both federal question and diversity
jurisdiction over cases and controversies. From the earliest days of the Republic,
the Supreme Court has read the constitutional grant of jurisdiction to decide cases
and controversies to preclude federal courts from providing advisory opinions.
1. Federal courts will not adjudicate when an attempt to invoke the federal
court to give an advisory opinion will get the case rejected.(Muskrat)
a) State courts are able to give advisory opinions. Article III prohibits
advisory opinions in federal court. (No case or controversy)
2. Matters are left to the political (elected) branches to resolve
3. There is no redressability in an advisory opinion and it therefore has no
standing.
B. Objective
1. Identify controversies that should be decided by political branches
2. Persuasive policy reasons
a) Incapable of resolution or enforcement via the court
C. Baker v. Carr
1. Tennessee tried to claim that the complaint fell under Article IV Republic
guarantee. Brennan found it was a case of equal protection under the
Fourteenth Am. Runs through a test to determine political doctrine.
2. Baker v Carr Test
a) Textually demonstrable assignment of an issue to another branch
(KNOW THIS)
(1) When a particular sort of question is within the particular
authority of the president or congress there should be no
judicial second guessing.
b) Lack of judicially discoverable and manageable standards(KNOW
THIS)
(1) Courts simply can’t handle issues when litigants are unable
to propose to the court any useful standard for deciding
things
c) Requires policy determination of a kind for nonjudicial discretion
d) Cannot resolve without expressing lack of respect for political
branches
e) Unusual need for unquestioning adherence to prior political
decision
f) Potential for multifarious pronouncements by various departments
(1) Need for the government to speak with a single voice?
D. 3 Types- will be dismissed
1. Guarantee clause claims
a) Republican form (Art. IV Republican Guarantee)
(1) Pacific telegraph and telephone company.
(a) Statute was passed under Popular Referendum
and telegraph argued it was not a republic gov’t.
Republican Gaurantee: Political Question
(b) Baker v. Carr
(i) Tried to argue political question but was in
equal protection and justiciable.
b) challenges to presidents conduct of foreign policy
 (1) ONE LAST “TIP” - There is no hard and fast rule, that
foreign affairs questions are non-justiciable, but if all you
know is that someone is trying to get into court to challenge
federal executives decision on forign affairs question, very
good chance that courts decide this is a non-justiciable
question.
(2) DISCRETION is a useful counterpoint - if a question is
within the discretion of congress or the president, then there
is no room for judicial questioning. It is non-justiciable if
within the discretion of the president or congress.
ORIGINATES from marbury v. madison. Marshall
characterized the argument against allowing marbury from
suing the executive because “of course questions within the
discretions of the executive are not reviewable by the
courts (Thomas Jefferson’s decision to appoint the
secretary of state James Madison- this is a power vested to
the president under the constitution).
2. Challenges to impeachment and removal process
a) There is no appeal from impeachment proceedings from the house
or from the senate. This is a non-justiciable political question.
b) Nixon v US
(1) While in prison he is still a federal judge, senate impeaches
him
(2) He argues a senate impeachment trial must have all the
trappings of a criminal case.
(3) Rehnquist Opinion
(a) Textual argument: The senate shall have the sole
power to try impeachment.
(i) Efforts to appeal an impeachment represent
a nonjusticiable political question
3. Challenges to partisan gerrymandering
4. However voting districts doctored along racial lines will get you into court
E. 4 justiciability doctrines
1. Political question doctrine that are automatically a political question.
a) Any claim brought under the Republican Guarantee clause under
article IV is nonjusticiable political question.
b) There is no appeal from impeachment proceedings from the house
or from the senate. This is a non-justiciable political question.
(1)
F. Standing Doctrine
1. Definition
a) Whether P is proper party to bring the matter to court
(1) Without standing the court will not decide a constitutional
challenge
(2) P MUST have a concrete stake in the outcome.
(3)
2. Elements of Constitutional standing
a) Injury in Fact
b) Causation
c) Redressability
3. Injury-in-fact
a) Concrete and particularized injury has actually occurred or will
imminently occur (not conjecture or hypothetical). (Lujan pg 93)
(1) Not a harm to the general public - Allen v. Wright: An
amorphous group of citizens is concerned that a political
body is not adhering to a congressionally mandated order.
No particularized harm.
b) Actual and imminent
c)
4. Ripeness
5. Mootness