CON LAW I

What is the importance of Marbury v. Madison?

It provides the foundation for American Constitutional law.

What is judicial review?

Federal courts can declare federal & state actions to be unconstitutional and, therefore, invalid.

What is the Supremacy Clause?

It establishes that the Constitution is the supreme law of the land.

Where is the Supremacy Clause found?

Article 6, Clause 2

What did Marbury v. Madison declare unconstitutional?

A provision of the Judiciary Act of 1789 that attempted to expand the original jurisdiction of the Supreme Court beyond what is outlined in the Constitution.

What is the Judiciary Act of 1789?

It defined the Court’s jurisdiction to include a power to grant writs of mandamus to federal officials.

What are writs of mandamus?

Court orders compelling a government official to perform a required duty.

What was the three-fifths rule, and why was it important?

Slaves were counted as 3/5 of a person for purposes of the electoral college, which tipped the balance of power in favor of southern states.

What do Constitutional amendments require?

¾ of the state legislatures to agree within a certain period

What were the Federalist Papers?

They were letters written to persuade NY to ratify the Constitution and are often cited as a key source to guide interpretation of the Constitution.

What are the theories of interpretation?

Textualism, originalism, fundamental principles, Living Constitution

What are the conservative theories of interpretation?

textualism & originalism

What are the liberal theories of interpretation?

fundamental principles & living Constitution

What is textualism?

It gives commonly understood meaning to the exact words.

What is originalism?

It looks to the original meaning at the time of enaction.

What is fundamental principles?

Core values that underpin legal interpretations and framework.

What is the living Constitution?

The Constitution’s meaning must evolve as society changes.

What are the pros of textualism?

It is presumably impartial & nonpolitical.

What are the challenges to textualism?

Language may be ambiguous, the literal meaning may be contrary to intent, and there may be unanticipated applications.

What are the pros of originalism?

It respects the limited role of the Court and our democratic process (amendments), and text and intent is how laws are interpreted.

What are the challenges of originalism?

It is based in a flawed colonial society and there is lack of evidence on intent.

What are the pros of fundamental principles?

Long-standing, noncontroversial principles help guide interpretation.

What are the challenges of fundamental principles?

Subjectivity and legislating from the bench

What are the pros of living Constitution?

It keeps the Constitution relevant.

What are the challenges of living Constitution?

Subjectivity and legislating from the bench

What are the justiciability requirements?

• Cases & controversies

• Standing

• Ripeness

• Mootness

What is case or controversy?

A prohibition against advisory opinions, this requires that there is a live adversarial controversy for federal courts to adjudicate.

What is the basis for the case-or-controversy doctrine?

Separation of Powers; Article III, Section II, Para 2

What is standing?

The most important justiciability requirement; the determination of whether a specific person is the proper party to bring a matter to the court for adjudication.

What is the question to be asked for standing?

Is the litigant entitled to have the court decide the merits of the dispute or of particular issues?

What are the two facets of standing?

Constitutional requirements & prudential requirements

What are the constitutional standing requirements?

(1) injury

(2) causation

(3) redressability

What is the injury standing requirement?

P must allege that he/she has suffered or will imminently suffer an injury.

What if the injury is a past injury for purposes of standing?

P must show an injury personal to P

What if the P is requesting an injunction for purposes of injury and standing?

P must show the injury is “certainly impending.”

Why must the P show actual injury personal to them?

There must be a sufficient stake to aggressively litigate.

What does Allen v. Wright say about injury for purposes of standing?

The injury alleged must be distinct and palpable, not abstract, conjectural, or hypothetical.

Do allegations of possible future injury satisfy the requirements of Article III?

A threatened injury must be certainly impending to constitute injury-in-fact. -Mass. v. EPA

What does causation require for purposes of standing?

P must allege that the injury is fairly traceable to the D’s conduct

What is the test for determining whether there is causation for purposes of standing?

(1) Is the harm traceable to the policy/conduct with evidence?

(2) Does a contribution to the harm by a third party break the chain in causation?

Who bears the burden of showing causation for standing?

The P/petitioner

What does redressability require for purposes of standing?

P must allege that a favorable federal court decision is likely to redress the injury

What is the question to be asked for injuctions in terms of redressability?

Will stopping the policy/conduct lead to at least an incremental improvement that is not merely speculative?

What are the prudential requirements?

(1) third-party standing; (2) generalized grievances

What is third-party standing?

A party generally may assert only his/her own rights & cannot raise claims of third parties not before the court.

What is the exception to third-party standing?

Where there is a close relationship of litigant to person whose right(s) is/are asserted and/or an inability of the third party to assert his/her own right(s)

What is generalized grievances?

A P may not sue as a taxpayer or citizen who shares a grievance in common with all other taxpayers and citizens.

What is the exception to the generalized grievances?

Challenges of expenditures under the Tax & Spend Clause

Can Congress override any standing requirements?

Only prudential by statute

What is ripeness?

Seeks to separate matters that are premature for review because the injury is speculative and never may occur

What does ripeness overlap with?

the standing requirement that the injury has occurred or imminently will occur

What is the consideration for ripeness?

(1) Issues are fit for judicial decision at this time; and

(2) There is hardship to the parties of withholding court consideration.

What is the question to be asked for ripeness?

When may a party seek pre-enforcement review of a statute or regulation?

When is a court more likely to find ripeness?

When the threat of enforcement will lead the challenger to incur costs to comply

What is the Federal Declaratory Judgment Act of 1934?

Expressly permits litigants to obtain pre-enforcement review of statutes & regulations

What is mootness?

there is no longer an actual controversy between adverse litigants (i.e., death, settlement, repeal)

What is required for mootness?

The intervening act must have irrevocably eradicated the effects of the alleged violation.

What is special about the mootness doctrine?

Applied in a less strict manner than other justiciability doctrines

What are the exceptions to the mootness doctrine?

(1) wrongs capable of repetition but evading review;

(2) voluntary cessation; and

(3) class action suits

What is the gist of the political question doctrine?

Some constitutional provisions are left to the political branches of government to interpret and enforce.

When are political questions usually found?

When the asserted constitutional claim is nebulous, where there’s no express language that seems to support the claim, but the argument is rather trying to infer something from the constitution.

What case sets forth the three-part test for the political question doctrine?

Baker v. Carr

What is the three-part political question doctrine test?

(1) Does the Constitution commit the issue to another branch?

(2) Does the issue demand expertise courts don’t have?

(3) Does good policy prevent intervention?

What are the main types of political question doctrine cases?

(1) state elections

(2) foreign policy

(3) impeachment

(4) Congressional membership & self-governance

What is the guarantee clause?

The US shall guarantee to every state in this union a republican form of government and shall protect each of them against invasion, and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.

What case relates to the state election’s constitutionality?

Luther v. Borden

What cases relate to foreign policy?

Goldwater v. Carter & Zivotofsky v. Clinton

What is the impeachment clause?

Article I, Sec. 3, Clause 6; The Senate shall have the sole Power to try all Impeachments.

What case was most influential for impeachment?

Nixon v US

What questions should be asked for congressional membership & self-governance?

(1) Does Congress have the authority under the Constitution to legislate?

(1a) What powers have been granted to Congress in Article I, Sec. 8 of the Constitution, or the post-Civil War Amendments?

(2) If so, does the law violate another constitutional provision or doctrine?

What happened in McCulloch v Maryland?

The federal bank was found to be constitutional based on the necessary and proper clause.

What are the enumerated powers of Congress?

(1) Necessary & Proper Clause

(2) Commerce Clause

(3) Tax & Spend Power

(4) Power to Borrow Money

(5) Power Relating to Naturalization

(6) Power of Bankruptcy

(7) Power to Pass Laws Regarding Currency & Counterfeiting

(8) Power to Make Laws Regarding Postal Services

(9) Authority over Copyrights & Patent

(10) Power over Federal Courts

(11) Powers over the Military & Declarations of War

What cases explain the Commerce Clause?

Gibbons v. Ogden, Daniel Ball, and Dewitt

What question should be asked for the necessary & proper clause?

Does the Statute constitute a means that is rationally related and reasonably adapted to the implementation of a constitutionally enumerated power?

What is the gist of the necessary & proper clause?

Congress has the power to use any means not prohibited by the Constitution to carry out its authority.

What did US v Comstock say?

The ability to indefinitely confine those convicted of federal crimes was reasonably adapted to the federal government’s role as custodian.

What is the conflict with the Commerce Clause?

The 10th Amendment reserves all powers other than those in Article 1 to the States.

What does Gibbons v. Ogden say?

Wholly internal traffic within a state likely falls outside the Commerce Clause, but it necessarily includes internal state conduct that affects commerce in other states.

What does the Daniel Ball case say?

The Commerce Clause could reach intrastate transport of goods as long as the goods were from or would ultimately go to another state.

What does Dewitt hold?

A federal law outlining the sale of a dangerous fire-causing oil was unconstitutional because it reached wholly internal conduct.