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Constitutional Law Outline - © 1999 John M. Thompson

Prepared for Professor Griffin’s Constitutional Law One, Fall 1999 Class

Santa Clara University


A.. Judicial Power

      1..  Judicial Review

a.. Marbury - Congress can make the laws, but the Congress does NOT have the power to say it is Constitutional; Congress cannot add to the Court’s original jurisdiction; Federal court system is authorized by Article III

      2.. Political Question -

a.. Baker (1962) - apportionment is a justiciable question; will not look at this under the Guarantee Clause (Art. 4, Sec 4). Luther v. Borden (1849) established that the Guarantee Clause was something that was not to be reviewed; Baker test for whether something is justiciable (political): 1). A textually demonstrable constitutional commitment of the issue to the politicial branches (says expressly in constitution); 2). Lack of manageable standards for judicial resolution; 3). A need for finality in the action of the political branches; 4). Difficulty or impossibility of devising effective judicial remedies

i.. examples of controversies that are non-justiciable - cases concerning war or foreign affairs; matters concerning the structure and organization of the political institutions of the States; cases involving Negro disfranchisement; abstract questions of political power, sovereignty, of government

b.. Powel (1969) - exclusion of a delegate is a constitutional issue (a textual issue: Article I, Sec. 5); the controversy was justiciable

c.. Goldwater (1979 plurality) - termination of a treaty without the authority of the Senate was a political question and therefore nonjusticiable

d.. Nixon (1993) - the Senate procedures to try impeachments will not be scrutinized; non-justiciable; this is textually demonstrable (in Constitution)

3.. Standing - the court will not decide a con challenge unless the person or group has standing.  Stake in the outcome, must show injury in fact (not need to be economic, must be causation between injury  and conduct in controversy, redressability; Constitutional requirements - injury, causation, redressability

a.. Lujan (1992) - if injury is generalized there is no standing; being a citizen alone does not confer standing, Congress cannot simply authorize it in the statute; addresses injury

b.. Warth v. Seldon (1975) - must allege specific concrete facts showing substantial probability that plaintiff is harmed (addresses causation)

c.. Allen v. Write (1984) - nature of injury was too speculative (tax exemption for racially discriminatory private schools)

d.. Akins (1998)- unlike Lujan, there was sufficient standing because the failure to disclose was concrete injury; P was in zone of interest; people that sue under the statute must be under the zone of interest that the statute was designed to protect

e.. Raines (1997) - no standing because no institutional injury; people have not suffered a particularized (personal) and concrete injury

f.. Reservists (1974) - just because you are a citizen and taxpayer does not mean you can  challenge the reserve membership of certain members of Congress.  Must have concrete injury.

B.. Legislative Power - Constitution grants Congress specific powers; most are in Article I, Sec 8.  Others are implied.      Determination of a constitutionality of a act of congress: 1). Does Congress have authority under the Constitution to legislate? 2). If so, does the law violate another constitutional requirement? (infringe on separation of powers, infringe on civil liberties, etc…)

1.. Necessary and proper clause - if Congress is seeking an objective that is within the specifically enumerated powers then Congress can use any means that is 1) rationally related to the objective Congress is trying to achieve; and 2) is not specifically forbidden by the Constitution

2.. Even if Congressional power appears to fall within a specific grant of power, the action may not violate some OTHER specific constitutional guarantee

a.. McCulloch (1819) - Congress has power to establish national bank; Congress must be able to act in ways that all Congress to exercise its enumerated powers; The power to tax is the power to destroy. The Constitution is supreme and therefore the states cannot tax the federal government.

b.. US Term Limits, Inc. v. Thorton (1995) - 10th Amendment does not allow states to exercise a power that they did not have; term limits are unconstitutional; power to set additional qualifications was not reserved to the states by the Tenth Amendment; two disputes as to what is reserved to the states: 1). States only have powers that are expressly granted (majority); 2) States have all powers that are not specifically excluded (dissent); what is specifically given vs. what is specifically taken





Thomas, Scalia, Rehnquist - formalists




Reasons why the court should not become involve:


Can the court hear the case?

-         lack standing - concrete injury, personal injury

-         if political courts will not decide the question (Guarantee Clause guarantees a republican form of government