American Constitutional Law: Structure and Reconstruction

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Constitutional Law Outline
Based upon class notes - Loyola University (New Orleans) School of Law

Fall 2002 (Evening) - Professor Viator

Text - American Constitutional Law: Structure and Reconstruction,

Charles Shanor, West Group, 2001

Compiled by Joseph Pastorek, M.D.
N.B.: According to Viator:

Constitutional Law is not a common part of routine law practice. However, lawyers

are the "oracles" of legal knowledge for their friends, communities, etc., and so we

must learn ConLaw to be able to guide and teach the public during crises which

arise (e.g. Clinton's impeachment, Watergate, etc.). Basically, we must be able to

determine (and explain to the public) whether the government is following the rules

set down by the Constitution. There is no "rule of law" in constitutional-less

countries. [Viator claims, mirabili dictu, that this is more serious than everything,

even more important than Louisiana torts!!!]

I. Background:

A. Supreme Court supremacy over the other branches:

1. How did the Supreme Court get so supreme?

a. powers of the courts are delineated in U.S. Const., Art. III (i.e. Congress is

Art. I, most important, followed by the Executive, Art. II), so the judiciary

is in third place - how did it get so powerful?

(1) U.S. Const. Art III, ¤8:18, e.g., delineates that Congress makes "all Laws,"

so how does S. Ct. jurisprudence (which is "law" in this country) become

so preeminent?

2. Cooper v. Aaron, 358 U.S. 1 (1958) - desegregation case in Arkansas

a. governor and legislature of Ark. opposed federal court ordered desegregation

b. S. Ct. ruled that state legislatures and governors cannot defy the orders of the

federal courts, and that the state cannot ignore U.S. Const. rights and protections

c. S. Ct. ruled that segregated schools violated U.S Const. Amend. XIV

d. S. Ct. cited Marbury as authority that the Constitution was the "supreme Law of

the Land" and "the fundamental and paramount law of the nation" - the federal

judiciary is supreme in the exposition of the law of the Constitution

e. since 1958, the federal courts rule American everyday life, e.g.

(1) regulate the number of urinals in prisons

(2) determine which children go to which schools

(3) determine that you have to have ramps into buildings for cripples

3. judicial review:

a. appellate review - review lower courts' findings of law

b. national review - superintending state courts' actions under the Supremacy Claus

c. interdepartmental review - review actions of other 2 branches of government

(1) the (unelected) judiciary can tell the (elected) executive and congress what

to do - almost a monarchy or oligarchy (like we ran away from in England)

(2) counter-majoritarian difficulty - Marbury sets up the S. Ct. as king of all

and melds the Constitution ("by the People") together with the S. Ct.

(not "by" the People - selected by one guy) into authority

(3) Constitution should always overrule judicial interpretation, but who interprets

what the Constitution means? the judiciary

B. Invalidation of FEDERAL laws: Text, p. 11

1. Marbury v. Madison, 5 U.S. 137 (1803) Text, p. 12

Ps were appointed justices of the peace in the D.C. by (past) President Adams,

and duly confirmed by the Senate. However, (new) SecState Madison refused to send

Ps' commissions to them. They sued in the form of a writ of mandamus, and the issues

ultimately argued before the S. Ct. were:

¥ Whether the S. Ct. can award the writ of mandamus in any case.

¥ Whether it will lie to a SecState, in any case whatever.

¥ Whether in the present case S. Ct. may award a mandamus to SecState Madison.

Before the S. Ct.: The S. Ct. (C. J. Marshall) put the issues in this form: (1) Does P

have a right to the commission he demands? (2) If he has a right, and the right is

violated, is there a remedy under U.S. law? (3) If there is a lawful remedy, is it a

mandamus from the S. Ct. (i.e. jurisdiction)?

Item 1: Since P's office was not an at-will appointment, as of the time the president

signed the appointment, it was official and became a legal right of P. Therefore, it

is violative of a legal right to withhold the commission.

Item 2: The court accepted P's argument, that a secretary, in his capacity as an agent

to the president, was not accountable (since the president had independent discretion),

but a secretary performing his own ministerial duties (as delineated and mandated by

the Congress) was answerable - could be mandated to perform his ministerial duties.

Item 3: As to a mandamus, it was considered settled law from British times that a

public officer could be mandated to perform his duty, as long as no other remedy was

available to the individual to address his damage. The S. Ct. jurisdiction question was

answered by the Court after noting that the constitution itself gave the S. Ct. original

jurisdiction over public "ministers" and the "state [as] a party." However, the Judiciary

Act of 1789 expanded the judiciary's power over that delineated by the Constitution,

hence it was unconstitutional. The S. Ct. had appellate jurisdiction, according to the

structure of the lower courts, etc., and not the broader original jurisdiction delineated

in the Judiciary Act.

Holding: "The rule must be discharged."

[I take that to mean, "Nope, that law ain't constitutional!"]

a. background:

(1) magistrates were appointed by outgoing President Adams (Federalist), and

Anti-Federalists (Republicans) came in (Jefferson-Burr) and tried to get around

the leftover appointments by the opposition

(2) counsel for Marbury et. al. was Mr. Lee, who had been Adams's AG

(3) C.J. Marshall was a staunch Federalist, and they were all scared of Jefferson's

Republicans in power - Marshall's dilemma:

(a) if they issued the writ of mandamus, Jefferson would ignore it and they

would appear weak

(b) if they refused the writ of mandamus, Jefferson's people would "win"

b. if P was an at-will appointee, then the president could cancel his appointment at

anytime after signing it, meaning P would have no right in it - but since it was a

specified term of 5 years (per statute), the signature gave P the power to either

accept or decline the appointment - a legal right which could not be taken away

c. the discussion of Item 3 was the most important part of this case:

(1) in deciding whether the S. Ct. had original jurisdiction, the Court debated the

wording of the Constitution (S. Ct. had power to grant writ of mandamus

against public officials) versus the D's argument that the legislature, in

constructing the lower court system, effectively delegated the S. Ct. to an

appellate level, leaving original jurisdiction to the lower courts

(2) S. Ct. compared Constitution, Article III, with the Judiciary Act of 1789

(3) S. Ct. stated points in their 3rd item:

(a) Constitution is the Supreme Law of the Land, and laws which are

"repugnant to the constitution" are void (a characteristic essential to all


¥ Constitution was ratified directly from the people - Law of the People

¥ Constitution was a sovereign act, unlike other types of law

¥ notion of unconstitutional laws is essentially attached to written


¥ Constitution is organic, basic, limiting law, and all contrary acts of

the congress etc. are ultra vires (beyond the limits of the people,

since the Constitution is from the people and trumps anything else)

(b) Courts are empowered to decide whether a law passed by the Congress

were "repugnant to the constitution" and therefore "void," i.e. the

courts have authority to nullify legislation and executive action as


¥ it is the constitutional duty of the court to say what the law is

¥ court must apply "the law" and ultra vires statutes are not law, so

the courts must stick to the Constitution, not the bad statute

¥ Constitution is superior to any ordinary act of the legislature

¥ what this decision doesn't do is tell Congress what to do with their

unconstitutional statute now? Is it a nullity, or just null in this case?

- the only people bound by a court's opinion are the parties at bar

- what goes on with other cases depends on the other two branches

of government (are they going to enforce it?)

- it is the court's responsibility to apply the law to the case at hand

d. NOTE: Marshall dealt with the three questions, entitlement, mandamus, jurisdiction,

in reverse order, compared to the way we look at it today - if he looked at

jurisdiction first, then the court (lacking jurisdiction) would not have to decide on

entitlement and mandamus - however, he did it backwards so they could give their

opinion on the merits, even without jurisdiction

(1) he got to say that Marbury had a right to his commission

(2) he gets to say that the executive is abusing his office - tyrannical abuse - etc.

(3) he gets to opine that the writ of mandamus will lie against the executive

(a) through a writ of mandamus, even the president can be controlled

(4) but then he says that the S. Ct. has no jurisdiction - so Jefferson "wins," but

has to put up with the obiter dicta (the extraneous stuff in the beginning

which lasts in the jurisprudence and later becomes holding) - so the

Republicans wouldn't complain, since they won, but the Federalists get

to lay the tracks for control of their court over the Republican executive

and congress

e. Dred Scott v. Sandford, 60 U.S. 393 (1856)

C.J. Tawny doesn't cite Marbury, since Marbury is not on point

(1) doctrine of Marbury is limited by a judiciary statute and Article III

(2) a statute about the courts which relates to Article III - very narrow

(3) other branches of government can't touch the court on this topic, since

it's about the court itself, not about them (case of a judiciary nature)

- it was thought that only cases under Article III were where the S. Ct.

could exercise dominion, but Tawny saw that this was an Article I

case, not Article III, and so Marbury wasn't applicable

2. Countermajoritarian Difficulty Text, p. 24

a. Note 6: "...government of laws, and not of men." - Marshall, contrasted with

"...we are supreme because we are final." - Jackson (about 150 years later)

(1) is the S. Ct. really final? Look at Amend. V - you can amend the Const. to

change a S. Ct. ruling (e.g. income tax amendment, etc.), or Amend. XI,

in response to a ruling of S. Ct. - so it's not really final, since the people can

amend it away

(2) the Executive can ignore the S. Ct. rulings, as can individuals (e.g. have a

public school graduation in a Catholic church and prayers by a priest - what

is the S. Ct. gonna do???) - Andrew Jackson: "... now let him enforce it."

(3) one problem: Pavlovian training to stop thinking about the Constitution,

since we figure the Court will do that, e.g.:

(a) congressional legislation doesn't debate constitutionality of statutes any


(b) President doesn't worry about constitutionality much (which was why

veto power was created)

(c) anti-flag burning statute - President Bush (41) during his campaign

said it was for the court to decide - if congress passed it and it hits his

desk, he'll sign it and let the court figure it out (which is contrary to

oath to protect and defend the Constitution that government officers

have to take)

C. Invalidation of STATE laws: Text, p. 26

1. Martin v. Hunter's Lessee, 14 U.S. 304 (1816)

Land originally granted from England was passed from Lord Fairfax to Mr. Martin,

and English subject. The assembly of Va. passed a law seizing any lands granted by

the crown, and moved to eject the owner, D Martin, and grant the land to the P,

the lessor, who took possession. U.S. S. Ct. originally reversed the Va. court of

appeals, and the appeal resurfaced to the S. Ct. since the Va. court refused to follow

the S. Ct. mandate and writ of error put in issue whether the U.S. S. Ct. had appellate

jurisdiction over the Va. court.

Before the S. Ct.: Federalist court argued that uniformity of national law was a reason

that the S. Ct. have appellate jurisdiction over state courts (which Republicans

didn't worry too much about). Note that Marshall recused himself (J. Story wrote

the opinion) because he had interest in some of the land in issue, so Federalists

were not too concerned with this case - it wasn't that important. The justification

that ¤25 of the Judiciary Act of 1789 provided the S. Ct. with appellate power over

the state courts was a textual reading of U.S. Const. Article III to demonstrate that

the federal courts had jurisdiction over "all cases..." Also, Article VI says that the

Constitution is binding on state judges, as well as federal judges. Then he switches to

an originalism argument, that the Framers and ratifiers must have meant the

state courts were to bow to the S. Ct. since there were no lower federal courts in

existence at the time of the ratification of the Constitution. In other words, the

Framers meant for most questions to go through the state courts and end up in the

final appellate level at the U.S. S. Ct.

a. good arguments were made on both sides of this argument

(1) what does "all cases" mean in Article III?

(2) even ¤25 of the Act doesn't cover all possible cases, only 3 classes of actions

b. Note 3, p. 33: common sense of the matter - O.W. Holmes Jr. felt that if the S.

Ct. couldn't strike down acts of Congress, the country wouldn't be in trouble, but

if the S. Ct. couldn't review the states' law, the country would come to an end

(1) it's more important to the country that state decisions be uniformly

superintended by the S. Ct. than to ride herd on Congress

D. Interpretive methods:

1. different types of constitutional interpretation:

a. textual - plain reading of the text of the Constitution (with cross-reference to

other parts of the Constitution)

b. originalism - what was the original intent of the Framers - look to the

documents and amendments leading up to the final Constitution, and argue

what the original intent is

c. natural law - the Constitution arises in the context of natural rights and

liberties guaranteed (by God), and must be read in that context

d. precedent - dodge argument and stand on the logic and holdings of prior


e. pragmatism - you use any and all means to justify the pragmatic end you want

to achieve

2. 2nd Amendment interpretation: Text, p. 48

a. read these and answer an argument:

STATUTE: Federal Housing Projects Anti-Gun ban:

Congress passes law that people living in fed. projects cannot own guns.

Lil ole lady gets repetitively robbed by thugs, gets a gun, shoots one, and

is arrested for having a handgun in a project. No state violation due to

self-defense. However, she violated a federal statute. Is it constitutional?

Construct the argument after the methods in the book.
N.B.: This was a real case, but was dismissed before it was ultimately decided (Illinois).
b. crux of Viator's argument:

(1) regular Militia - described by U. S. Const. Article I ¤ 8 [15][16] refers to the

nationalized militia, governed by the Congress/government

(2) unorganized Militia - described in U.S. Const. Amend. II refers to the

people (not nationalized), who keep guns for security of the State, not Govt.

(3) so the old lady, being a citizen ("the people") should be allowed to carry

Viator pearl: Correct bumper sticker: "When guns are outlawed,

only the government will have guns."
D. Limitations to judicial power:

1. Ex Parte McCardle, 74 U.S. 506 (1869) Text, p. 53

Congress passed an act during reconstruction (1867) providing federal courts with

power to grant writs of habeas corpus, to insure that freed slaves would be able to

have just treatment if they were imprisoned by state action. After this, there was

passed a Military Reconstruction Act, dividing the South into military districts

under martial law. McCardle was arrested for disturbing the peace, libel, etc. and

he filed a petition for habeas corpus under the 1867 act. His petition was denied

and he appealed to the S. Ct. that his suspension of a jury trial, etc., was not

constitutional. After oral arguments, Congress appealed that part of the Acts of

1867 that gave habeas corpus appellate jurisdiction to the S.Ct.

Before the S. Ct.: C.J. first addressed jurisdiction and discussed that the very

existence of the S. Ct. was determined by the Constitution, but the Constitution

also empowered Congress to limit and modify the scope and powers of the

S. Ct. jurisdiction. When Congress repealed the act granting the specific jurisdiction

(over this type of case) to the S. Ct., then the Court has no jurisdiction and can't

even hear the case, except to dismiss it for want of jurisdiction.

a. case had huge political significant - Miss. newspaper editor was squashed for

racist incitement to violence, etc. - irony was, P was unreconstructed racist

who used anti-slavery statute to protect himself from anti-slavery authorities

b. unanimous opinion but very short - difficult to determine holding

(1) Article III, ¤ 2 - "judicial Power shall extend to all Cases, in Law and

Equity, arising under the Constitution, the Laws of the United States. . . .

[and appellate jurisdiction] with such exceptions as Congress shall make."

(a) Congress passed the Reconstruction Act, a "Law of the U.S.", so

if they repeal it, the "judicial Power" is gone

(b) if Congress gives it, then Congress can take it away

c. Judiciary Act of 1789 had to be passed before the Constitution was augmented

to provide the numbers and types of judges, the hierarchy, etc. - i.e. the Courts

were dependent on Congress to actually work

(1) under Article II, ¤ 2[2], the Court cannot act unless Congress gives them the

power to work (via the "exceptions" and "regulations" which they make

(2) judicial power conveyed by the people through the Constitution to the

Court, but it did not work until Congress allowed implementation (power

needed to be vested - Art. III has no restraints on Congress power to

fiddle with lower courts, jurisdiction exceptions, etc. - basically plenary


d. narrow reading of McCardle - the act of 1968 was repealed, so the P must come

back under a different theory of law (if you're in federal custody under the

Judiciary Act of 1789, you can appeal directly to the S. Ct. under a writ of

habeas corpus - the Reconstruction Act was aimed at state courts) [last ¦

of case is dicta - racist Court giving McCardle a hint as to reapplying for writ]

e. broad reading of McCardle - the Congress has ultimate power to implement

powers of the Court, even though the power itself is derived from the people

(via the Constitution)

(1) every vesting of power to the Court by Congress was also an exception of

every power not vested in the Court (describing affirmatively is understood

to negate any power not delineated in the affirmative)

(2) Congress can set it up any way they want, so long as they don't violate

the Constitution in other ways (i.e. violate due process, etc.)

f. tripartite government does not operate independently, department from

department - e.g. Pres. can veto Congress, Congress can limit Court,

Court can declare Congress unconstitutional - government is not separate, but

separate with checks and balances

g. Marbury stands for the idea that Congress can't give more original jurisdiction

to the Court than the Constitution gives - Marshall says that Court can decide

constitutional issues that get to them, not that they all should

h. Notes, #5: Text, p. 55

5(a): U.S. Dist. Courts cannot have jurisdiction over school busing cases?

- they don't interfere with Constitution or constitutional protections

- before the Federal Judiciary Act, you would have to go to state court

and the federal statute would still be law of the land - i.e. the

"problem" would not be solved at the federal level, only state level

- core purpose argument - the federal courts have a "core purpose" to

hear constitutional cases

5(b): Deny S. Ct. all cases of State Law regarding prayer in school?

- if you can take away habeas corpus (McCardle) then free speech is

no problem, either

5(c): Deny jurisdiction of any state over abortion statutes?

- Congress has no power over state courts - state courts have to worry

only about whether they follow the U.S. Constitution (Congress

can't order them to do anything)

2. I.N.S. v. St. Cyr, Suppl. p. 2

Haitian immigrant was being deported after 1996 amendments to the I.N.A. of

1952 to change the provision of

On Appeal: J. Stevens held that 1996 repeal of judicial review of deportation

orders (of the I.N.A.) only meant direct judicial review (statutory), not collateral

(habeas corpus) review, as guaranteed by the U.S. Constitution. He wanted to avoid

constitutional difficulties, which he discussed in dicta. He thought that constitutional

difficulties would have arisen if the statute were read to remove habeas review, since

it would violate Article I, ¤ 9[2]. (unless the public safety were affected in times of

rebellion or invasion).

a. J. Scalia's dissent claimed that the decision was goofy. . . .

b. Judiciary Act of 1789 - All Writs Clause bestows all writs (including habeas corpus)

on the courts, i.e. the writ of habeas corpus is set up by the Congress for the

courts, rather than the idea of J. Stevens, that the writ of habeas corpus was a

self-evident law that existed on its own

c. all the writs (writs of mandamus, writs of error, writs of habeas corpus, writs of

certiorari) were given by Congress, and Congress can take them away...

BUT, suspension of the writ of habeas corpus can only be done pursuant

to Article I, ¤ 9[2] (not abolish for everyone or for certain classes, but just

suspend it for certain reasons)

d. Congress can always repeal enabling legislation - Congress giveth and Congress

taketh away (i.e. the Framers understood "suspend" versus "abolish")

e. 4 states refused to ratify the Constitution because it didn't specify the writ of

habeas corpus (anti-Federalists didn't like the writ of habeas corpus being left

up to Congress - but it was, although the Constitution specifies that only Congress

can suspend the writ of habeas corpus, not the Executive and not the Court)

3. Charles B. Miller v. Richard A. French, ___ U.S. ___, (2000) Text, p. 56

Prisoners sued to enjoin the operation of an automatic stay provision of the Prison

Litigation Reform Act of 1995, wherein an existing injunction is automatically

stayed after 30 days of the filing of a motion to terminate prospective relief, if

the court finds that the injunction is not in keeping with the specifics of the Act.

Prisoners contended that the Act was violative of their Eighth Amendment

rights and violative of the separation of powers principle.

On Appeal: Majority court held that the Act did not restrict the Court, but it altered

the law that the Court was applying. The courts monitoring ongoing or prospective

injunctions were not a "final judicial determination" that the Congress otherwise

could not alter.

a. courts issued standing injunctions against prisons to keep their conditions okay

b. PLRA specified narrow standards for issuing and keeping injunctions against

prisons for unsuitable conditions

c. precedent cases:

(1) Plaut - Congress cannot annul a final judgment or it's a forbidden assumption

of judicial power

(2) Hayburn's Case - Congress cannot vest review of the decisions of Article III

courts in officials of the Executive Branch

(3) U.S. v. Klein - according to this court, Klein forbid prescribing rules of decision

to the courts in cases pending before it (i.e. Congress cannot direct the outcome

of a pending case by making up new rules)

4. Justicability - does the matter belong to the "cases" and "controversies" under

Article III of the Constitution, or had the Court refused on their own to handle

some type of case (prudential limitations - e.g. rules about 3rd party standing, etc.)

a Constitution has certain limits

b. Congress can make it harder for the S. Ct. to hear a case, but not relax the limits

of Article III

c. "cases or controversies"

- basically, in the separation of powers doctrine, the Court needs to be able to

check and balance the other branches in cases and/or controversies

(1) adverse parties with injury in fact

(2) Court's decision alters the behavior of parties (binding) - is the world going to

change in anyway based on the decision?

e.g. Bush v. Gore - injury in fact was "I'm not going to be President," but he

never got the recounts to be unPresident, so the Court was premature in its

decision (ripeness)

- so this could have been an impermissible advisory opinion

- Gore's people argued this point (but still lost)

d. types/categories of limitations:

(1) advisory opinions

- Article II indicated that the President needed to get advice from his cabinet,

not the Court

- the Court should be a check on the Executive

- the Court was a "court of last resort"

- the Court's decison should bring about a change in one party's behavior, but

this won't happen in an advisory opinion (nothing changed by the Court, so

no "case or controversy")

- the rest of the following elements serve to exclude advisory opinions from

the mix by insuring there are elements that indicate the matter is not an

advisory opinion

(2) standing

- is the P the proper party to bring legal action

- usually has to be and injury in fact (advisory opinion won't have an injury

in fact, since it didn't happen yet)

(3) ripeness

- is there really a harm yet? a dispute? or do we have to let the facts develop

more (see Bush v. Gore, supra)

(4) mootness - e.g. Laidlaw, infra - if the court can't fix it, it's moot

(5) political questions - discretionary decisions/actions of the other branches

are political questions (permitted by the Constitution) not under the

jurisdiction of the Court

5. Friends of the Earth, Inc. v. Laidlaw Environ. Svc., Inc., 528 U.S. 167 (2000)

D bought hazardous waste incinerator and wastewater treatment plant and dumped

waste into local river. Environmental groups filed suit under the 1972 Clean Water

Act. District court did not enjoin D, since they had come into substantial compliance

(and actually closed and sold the plant during the suit), but awarded monetary penalty

(which went to U.S. Treasury, per statute). App. Ct. vacated order on the basis that

the case had become moot (plant was closed, etc.) and penalty would not redress any

injury suffered by P.

On Appeal: S. Ct. determined that P had standing to sue, because at least one of the

members of the groups lived in the area and claimed loss of enjoyment of the river,

etc., due to the pollution. S. Ct. also decided the case was not necessarily moot, since

effect of closure and compliance on prospect of future violations by D was not

decided by the District Court. Remanded for consideration of whether there was

any possibility of future violations by D.

Standing: 1. injury in fact; 2. causation in fact (by D's actions); 3. redressability

- without an injury, there's no dispute

- if D didn't cause P's injury, there's no dispute (at least not here)

- if the court can't fix it, there's no (point to the) dispute

a. strident dissent (J. Scalia) took issue with "feelings" of tree huggers, in absence of

any evidence of harm to anyone (and District Court found as a matter of fact

that no significant harm had been done to the environment by pollution)

b. Ginsberg felt that the merits should not be reached when deciding standing - so

she wanted to avoid Scalia's dissent argument that there was no pollution found

by the fact-finder

c. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) - Court held that P who may

at some future date in some distant place visit an endagered species did not have

standing to seek enforcement of the Endangered Species Act (Scalia opinion for

the majority)

d. qui tam actions - Vermont v. U.S. ex rel Stevens, 120 S.Ct. 1858 (2000) - Court

held (unanimously) that an interest unrelated to injury in fact is insufficient to

give a P standing, but that the interest must consist of obtaining compensation for,

or preventing, the violation of a legally protected right - but in qui tam situations,

the injury to the U.S. (by violation of the statute or whatever) is sufficient, and

the realtor is basically a subrogee of the U.S.

(1) long history of qui tam actions in England and the U.S. is supportive

(2) "cases and controversies" in Article III means those traditionally recognized

and amenable to judicial process

(3) qui tam actions originated in the 13th century when individuals brought action

on their own and the Crown's behalf

e. Allen v. Wright, 468 U.S. 737 (1984) - case that invented causation requirement

- tax-exempt status of (all-white) religious schools - Court decided that there was no

causal connection between tax-exempt statutes and (bigotted) white parents sending

their kids to all-white school (they ruled incorrectly, since the government subsidy

did indeed help white kids go to white schools)

- Court basically rejected true causation-in-fact analysis, and took more of a

common- law proximate causation thinking (it was too remote or indirect)

f. redressability - in this case, the money goes to the government

(1) why does it matter that you have redressability to make a case justiciable?

(what does redressability add to the cases and controveries clause?)

(2) Viator argues that once causation was "invented" in the 1980s, the concept

of redressability was basically a tap-in, since you can always pay off or

stop the injury... period (if you prove causation, redressability follows)

g. mootness - the allegedly wrongful behavior could not reasonably be expected to


(1) mootness doctrine - deals with whether the wrong is ongoing or not - it is

required by Article III, since if there is no controversy, Article III does not


(2) make sure that as the case goes on, the controversy doesn't vanish (moot)

- if the controversy is gone, the Court's opinion would only be an advisory

opinion (which they don't want)

(3) J. Ginsberg talks about saving money, and after so much judicial costs "sunk"

we keep on with the case to not waste money (so this isn't an Article III

requirement, it's a prudential requirement - they don't want to waste all the

money and effort and come away without a "result")

(a) three exceptions to mootness:

- alleged repetitive wrong evading judicial review (e.g. Roe v. Wade - by

the time the Court works, the pregnancy is already finished)

- collateral consequences (e.g. you've been adjudicated a criminal and you've

served your time and it's all done, but you still appeal/protest, since you

are forever branded a convict)

- defendant voluntarily ceases the activity so the complaint is technically

moot (at issue in Laidlaw)

(b) Ginsberg is wrong (and Scalia's correct) because she calls these cases

exceptions to the mootness doctrine (the usual mootness statement is

that mootness = standing but at the end of the case)

- mootness is more flexible than standing (because of 3 exceptions)

- in other words, if mootness is the same as standing, how can you have

exceptions? you have to have standing or it's unconstitutional

- conclusion: it must not be like Article III, since there are three

long-standing exceptions to mootness doctrine (over 50 years old)

6. Baker v. Carr, 369 U.S. 186 (1962) Text, p. 80

A suit alleging that the state of Tenn. apportioned its numbers of legislatures in an

arbitrary and capricious nature made it to the S. Ct. The Court decided that it had

jurisdiction, and that the Ps had standing, and then addressed whether the issue

was a "political" one, not addressable by the Court, or not.

Before the Supreme Court: J. Brennan held that the challenge to an apportionment

did not present a nonjusticiable "political question," and the claim did not rest upon

or implicate the Guaranty Clause (Article IV ¤ 4) of the Constitution regarding a

republican form of government. Therefore, the right asserted is within the reach of

the Fourteenth Amendment.

a. since the Luther v. Borden case, everyone had assumed that under Article IV

things were nonjusticiable, which Brennan basically overturns, giving the six

factors which now are mechanically regurgitated:

(1) a constitutional commitment of the issue to another political branch

- this is the best correlate to Marshall's decision in Marbury (another branch

has sole discretion)

(2) a lack of judicially discoverable and manageable standards

(3) the impossibility of deciding the question without an initial policy decision

(4) the impossibility of a court's undertaking resolution without expressing lack

respect for other political branches

(5) an unusual need for unquestioning adherence to a political decision already


(6) the potential for embarrassment from multifarious pronouncements by the

various departments on one question

b. J. Marshall (in Marbury) defined nonjusticiability as a matter that is vested in the

discretion of the Executive, while the courts were supposed to hear are those things

over which the law has made a legal duty/obligation that the court can enforce

- it's the duty of the court to declare "what the law is"

- if it's the discretion of the Executive, there is no law (it's up to his will)

b. dissent by J. Frankfurter:

(1) calls the majority decision a reversal of prior opinions

(2) thinks that the Court's (improper) meddling in politics will basically be bad

for morale - the moral high ground is the only "weapon" the Court has (as

opposed to the purse - Congress - or the sword - the Executive)

(a) similar to the public opinion of the Bush v. Gore Court, which basically

is "they're fixed along party lines - depends on who's appointing them"

(3) Federalism concerns - the Court should not get involved in matters concerning

the structure and organization of the political institutions of the States

(4) the Court has a limited fund of political capital to spend, so they should

save it for important topics and situations - don't use up the peoples' good

will and undercut your ability to act when you need to

c. calling it a "political question doctrine" is a little misleading, since every

constitutional law question deals with some political "stuff" or implication

(should really be called the "nonjusticiability doctrine" or some such thing)

(1) always separate the constitutional part (required by Article III) from the

prudential part, which can be changed at will by the court

d. Brennan's majority opinion considers the "political question doctrine" to simply

be applicable to the national government, not the state governments

- he equates the political question doctrine only comes into play when separation

of powers is threatened, powers meaning the 3 branches of the federal government

- this is his distinguishment between Baker and Luther (which is incorrect, since the

facts of the two cases are basically identical)

e. Note 4, p. 88:

(1) Baker basically killed the "political question doctrine"

(2) in the 40 years since Baker, only 2 cases have been "nonjusticiable"

(3) Baker v. Carr - Brennan is only concerned with separation of federal power

(similar to Marbury's discretion concept)

(4) Powell v. McCormick - black representative from Harlem, Adam Clayton

Powell, wasn't allowed to take his seat (1968?) because of allegations of

financial shennanigans, etc., based on the Article I clause that Congress can

decide on the qualifications of the members, etc. to exclude or expell people,

and he sued the Speaker of the House and got to the S. Ct.

(a) Congress argued separation of powers, Article I, Baker v. Carr - i.e. it

was nonjusticiable

(b) S. Ct. says "no" - no discretion vested in Congress - you have to use the

requirements in the Constitution (age, residencey) only - no discretion,

so it's justiciable

(c) basically wiped out what was left of "political question doctrine" except

for what is specifically written out in the Constitution

(d) only in Gilligan v. Morgan (Kent State shooting by National Guard) and

Nixon v. U.S. (Miss. judge tried by Senate for perjury, etc.) did the Court

bow out due to nonjusticiability in the last 40 years - only going by the

specific textual wording in the Constitution

- Article I specifics on Senate trials and training of Select Militia

7. Methodology Court uses in writing opinions: Text, p. 34

a. Keep these in mind when writing test answers. . . .

8. Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996)

At issue was the Seminole Tribe suing under the Indian Gaming Regulatory Act, which

dictated that an Indian tribe could enter into a compact with a state regarding gaming

on Indian land within a state. Florida refused to enter into good faith negotiations, &

the Seminole tribe sued in federal court, as per the Act.

Before the Supreme Court: Court held that Congress lacked authority under the Indian

Commerce Clause if Article I to abrogate the state's sovereignty under the Eleventh

Amendment, and the doctrine of Ex Parte Young didn't apply, because of the intricate

remedial provisions of the Indian Gaming Regulatory Act (in other words, if Congress

would have meant Ex Parte Young to apply, they wouldn't have such complicated

remedies built into the act). Affirmed lower court's dismissal for lack of subject matter


a. the Seminoles could have sued in Fla. state court, after Article VI ¤ 2, which says

that the judges of any state must obey the Constitution . . . .

(see Aldus v. Maine)

b. textually, the 11th Amendment doesn't seem to cover the instant case, since the

"Seminole Tribe" is not a citizen of the state, not a foreign state, etc.

(1) the Court relies on Blatchford v. Native Village of Noatoak, 501 U.S. 775

(1991) to say that they've always considered Indians citizens of the state in

which they live

c. is this case justiciable?

(1) the statute in issue instructs the state government to negotiate in good faith

with the Indian Tribe - is this like a common-law agree-to-negotiate problem

that doesn't rise to the level of real contract . . . . i.e. injunctions do not lie

to force people to follow discretionary activity (no F.R.C.P. 12(b)(6) standing


(2) only way there can be a private right to sue, then, is if Congress expressly

authorizes the private cause of action (specifically telling the governor that

he has to do it or else private individuals shall have expressly a right to sue

in federal court . . . .)

(3) same argument as Marbury v. Madison, can the court compel discretionary

activity? No - so there's no relief/remedy available

(4) for justiciability, you don't reach constitutional grounds unless you're forced

to - you try to decide other grounds (statutory grounds) first

(a) the fact that the majority didn't consider the statutory grounds, you might

think that the court is being activist, and doing this on purpose to expand

the meaning of the 11th Amendment

(b) these are Republican activists working in a conservative direction, to

further conservative agendas - they then go on to talk about the "spirit

of the 11th Amendment" to keep suits against states down

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