Constitutional Law Attack

Constitutional Law Attack - 1 Nature and Scope of Judicial...

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1) Nature and Scope of Judicial Review a) Judicial Review i) Marbury v. Madison – Federal Judicial Review ii) Martin v. Hunter’s Lessee – State Judicial Review b) Constitutional Interpretation i) Plain Meaning ii) Structural Inferences 2) Justiciability a) Ashwander Rules i) The Court will go out of its way to avoid ruling on a constitutional issue ii) The Court will dismiss a case based on justiciability grounds if at all possible b) Political Question i) Baker v. Carr – Brennan’s Factors (1) A textually demonstrable constitutional commitment of the issue to a particular political branch (2) A lack of judicially discoverable and manageable standards (3) Policy determination of a kind clearly for non-judicial discretion (4) Lack of respect due to a coordinate branch of government (5) Unusual need for unquestioning adherence to a political decision (6) Potentiality of embarrassment c) Advisory Opinion i) No adverse parties. No true case or controversy. ii) Look for a government branch enquiring whether something is constitutional or parties that don’t really have anything at stake. d) Ripeness i) Too early—the controversy is not yet ripe. (1) Court does not want to rule on hypothetical or abstract issues. It must have a concrete case with an actual injury. 1
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e) Mootness i) Too late—the controversy is no longer live or ongoing (1) The judiciary are without power to decide questions that cannot effect the rights for the litigants before them. ii) Exception (1) Capable of repetition yet evading review ( Roe v. Wade ) f) Standing i) Requirements (1) Injury in fact (a) Must be a specific and concrete harm rather than a ideological opposition (2) Traceability (a) Is the gov’t action the specific cause of the harm? (3) Redressabilty
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This note was uploaded on 05/25/2011 for the course LAW Con Law 1 taught by Professor Stern during the Spring '11 term at FSU.

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Constitutional Law Attack - 1 Nature and Scope of Judicial...

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