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Constitutional Law I - August Notes

Final Exam - December 13, 1999

Marbury v. Madison

John Adams is the outgoing, Federalist president; defeated by Republican Jefferson

Madison is the winner in this case

Steps of the argument in the case:

  1. Has the applicant a right to the commission he demands?

- DECIDED: yes, Marbury has a right to the commission; it is a legal right

2. If he has a right, and that right has been violated, do the laws of this country afford him a remedy?

- DECIDED: yes Marbury is entitled to a remedy for the violation of this right; the court makes the determination of what is legal and what is political

  1. If they do afford him a remedy, is it a mandamus issuing from this court? (is Marbury entitled to the remedy he applied for? A. did Marbury request the correct writ? B. Was this the right court?

- DECIDED: A: Marbury requested the correct writ. B. He asked the wrong court. He should have first approached the lower court, and then appealed it to the next court.

The Constitution and Statutes would give the court authority; in this case it was given by Section 13 of the Judiciary Act of 1789

In the case, there was a conflict between the Constitution and the Judiciary Act. Court concluded that the act was not constitutional and that the constitution should be the supreme law of the land.

Sitting next to Christi

Escape methods Marshall had:

Escape methods Marshall had for § 13 of Judiciary Act:

Ways to interpret § 13:

Ways to interpret Article III:

* This is what Marshall decided



Article III allows Court to expand original jdx

Article III forbids adding to original jurisdiction

§ 13 adds to court's appellate jurisdiction

Not unconstitutional; Marbury should refile

No conflict; Marbury refiles in circuit court

§ 13 adds to original jurisdiction

Act is Constitutional and writ is issued

Unconstitutional - Marshall decided this




Article 1 - legislative powers

Article 2 - executive powers

Article 3 - judicial powers (supreme court original and appellate jurisdiction)

Article 6 - supremacy clause


August 18, 1999

Office: Bergin 109


M 11-1

T 1-3; 5-6

W 11-12

Basis in Constitution for Judicial Review

Article 6 supremacy argument

Uphold law of land

"It is emphatically the province and duty of the judicial department to say what the law is." -Marshall in Marbury v. Madison

This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution.

  1. Political question doctrine
    1. from the court's perspective there are some things that are political, and because they are political the court does not have any business interfering with them
    2. commentators say lines are very fuzzy and the court has not been consistent throughout the cases
    3. reasons for why court would not want to have authority over political questions
    1. text and structure of the contstitution gives certain decisions to other branches; because of what the Constitution says the court can not decide political questions
      1. certain articles give certain branches certain rights and the courts can't interfere
    1. there are certain practical reasons for the court's own well being not to interfere (prudential reasons)
      1. questions of foreign affairs or war
      2. sometimes it would look bad if the court were involved
      3. too much controversy sometimes if courts were to get involved
    1. sometimes the court will say they will not hear a case because it is a political question (Luther 49, Coleman 48, Goldwater 53, Nixon 54)
    2. sometimes they will hear cases (Powell, Baker)
    3. have to take a case to say they would not take the case

Luther v. Borden

    1. involved Article IV, §4 the Guaranty Clause
    2. about two groups in Rhode Island arguing about form of government
    3. court found this case was nonjudiciable
    4. almost always a
    5. the court has consistently held and not reversed that cases under the guarantee clause are nonjusticiable OFTEN ON TESTS MULTIPLE CHOICE
    1. FALSE because this case says the guarantee clause is non-justiciable

Coleman v. Miller

    1. question of how long a proposed amendment to the Constitution would remain open to ratification
    2. involved Article V - whenever two thirds of both houses shall deem it necessary shall propose amendments….
    3. What is a reasonable period of time for ratification by the states for a constitutional amendment
    4. Court ruled that this was non-justiciable
    1. court ruled this way because: it would be bad for court to get involved with amending the Constitution; Article V gives power to amend constitution to a different branch of government (Congress)

Goldwater v. Carter

    1. deals with power to make and terminate treaties
    1. from Article II, Section II, Clause II - president shall have power to make treaties; does not mention termination of treaties
    1. held that this case is political and non-justiciable
    2. because the court did not take the case, things stayed the way they were (president could terminate treaties)

Nixon v. United States

    1. there was a conflict between Article I, § 3, cl. 6 and a Senate Rule
    2. textual - impeachment is the senate's job
    3. prudential argument - it is counterintuitive to have courts decide this

Powell v. McCormack

    1. court could hear case because house was putting more into Article II (extrra qualifications.
    2. The big thing here was that he was being excluded BEFORE being accepted into the house. Would have been different if he had been accepted and then tried to kick him out.

Article IV, §4

The United States shall guarantee to every State in this Union a Republican Form of Government


August 23, 1999

Distinguishing Luther v. Borden and Baker v. Carr: equal protection of the law was examined in ____ instead of Guaranty Clause as in Baker

See page 51 for review elements

Most important for equal review: Baker v. Carr (textual and prudental arguments)


  1. a textually demonstrable constitutional commitment of the issue to a coordinate political department
  2. lack of judicially discoverable and manageable standards for resolving it

Know which cases were non-justiciable and which ones were justiciable and why

Also make sure to know BAKER v. CARR test


  1. Standing
    1. Constitutional Requirements
    1. injury - Lujan (38)
    2. causation - Warth (30); Allen (36)
    3. redressability - Warth (30); Allen (36)
      1. causation and redressability are hard to distinguish; will often consider them together
    1. Prudential Limitation
    1. third party - court will not allow people go to court to protect interests of third party
    2. generalized grievances - Frothingham, Reservists, Richardson, Flast, (37)
    3. plaintiffs outside "zone of interest" of statute

Lujan v. Defenders of Wildlife

Environmental groups brought action challenging regulation of the Secretary of the Interior which required other agencies to confer with him under the Endangered Species Act only with respect to federally funded projects in the United States and on the high seas.


August 25, 1999

One of the prudential barriers the court has looked at is the third party rule. A second barrier is the generalized grievance barrier.

Prudential Limitations

  1. third party
  2. generalized grievance (page 37)
  3. zone of interests (there are statutes where Congress says there are certain people that can bring lawsuits, but whenever they interpret one of these statutes, people that sue under the statute must be under the zone of interest that the statute was designed to protect

Don't want lots of citizens making complaints about law; worry that citizens would be taking over the executive branch. Don’t want the citizens to come into court to challenge laws. This is a prudential concern that the court has.

Congress: list arguments as to why Congress has standing

Arguments why there is no standing.



August 30, 1999

Congress cannot act unless it has the constitutional authority to do so

Functionalist - says you need to be flexible in interpreting the constitution

Formalist - stick to what the Constitution says; interpret it narrowly; stick to the rules

10th Amendment - The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.