1. Equal Protection
2. First Amendment
3. JUDICIAL REVIEW
3.1. Marbury v. Madison
3.1.1. Creates the ability of the federal judicial branch to review the Cality of legislative and executive actions. It is SCOTUS, not Congress, that decides whether a statutes is Cal.
3.1.1.1. "It is emphatically the province and duty to say what the law is."
3.1.1.1.1. Criticism: Not a textual interpretation. Made up out of thin air.
3.1.1.2. C is paramount. Thus, it cannot be that a law repugnant to it is a law.
3.1.2. Congress has no right to abridge original jurisdiction of SCOTUS.
3.1.3. Creates right of the federal judiciary to refuse enforcing the rights they deem unCal.
3.1.4. Congress cannot alter SCOTUS' original jurisdiction, which CArticleIII enumerates.
3.1.5. Martin vs. Hunter's Lessee
3.1.5.1. Creates the ability of federal judicial branch to review state court decisions.
3.1.5.1.1. Uniformity of law: Importance to establish uniform constitutional laws across the country
3.1.5.1.2. Some parts of state sovereignty were given up when signing the C.
3.1.5.2. SCOTUS" interpretation is final and binding upon state legislature and executive.
3.1.5.2.1. Cooper v Aaron - Governor and state legislature was trying to avoid implement changes from Brown, arguing that SCOTUS' interpretation of C was not binding on them.
3.2. STANDING
3.2.1. ARTICLE THREE STANDING - CASE AND CONTROVERSY REQUIREMENT: Is the plaintiff the proper party to bring the matter before the court for adjudication? Four Requirements:
3.2.1.1. INJURY.
3.2.1.1.1. Plaintiff must allege a tangible, personal, and present injury. Injury based on speculation is not sufficient.
3.2.1.1.2. No injury where legislators are outvoted.
3.2.1.1.3. Injury must be imminent.
3.2.1.1.4. WHERE INJUNCTION IS SOUGHT, P must show that injury is (very) likely to re-occur.
3.2.1.2. CAUSATION
3.2.1.2.1. POLICY of not giving advisory opinions.
3.2.1.2.2. Allen v. Wright - No causation/redressability because segregated private schools might well still continue even if IRS enforced law.
3.2.1.2.3. No causation where you can't show that you would have received the benefit in the absence of D's conduct.
3.2.1.2.4. Laidlaw - Causation and redressability was found where a company polluted some place, and the residents were no longer able to enjoy that place, and a judgment in favor of residents would deter that behavior.
3.2.1.3. REDRESSABILITY
3.2.1.3.1. EXCEPTIONS: Where there is a close relationship between P and injured third party. Example: Doctor/patient relationship.
3.2.1.3.2. Newdau
3.2.1.3.3. EXCEPTION: Where the third party is unlikely to be able to bring its own suit.
3.2.1.3.4. Has to actually be likely to make a difference
3.2.1.4. 4. No generalized grievances are allowed. Term of art. Plaintiff must not be suing simply as a citizen or as a taxpayer interested in the G following the law.
3.2.1.4.1. EXCEPTION: Taxpayers have the power to challenge G expenditures as violating the Establishment Clause.
3.2.1.5. General exception where states bring a suit because states are a little bit sovereign
3.2.1.5.1. Mass v. EPA - Massachussetts sues the EPA for not properly regulating carbon dioxide emissions and thus causing damages to shorelines.
3.2.2. RIPENESS: May the federal court issue pre-enforcement judgment of a statute or regulation?
3.2.2.1. 2. What is the fitness of the issues in the record? --> Does the federal court have all the information for the issue or is there anything to be gained by waiting.
3.2.2.2. 1. What is the hardship on the P if no pre-enforcement review is given?
3.2.3. MOOTNESS: Must be a LIVE CONTROVERSY - anything that happens while the case is pending that ends P's injury, the case is moot.
3.2.3.1. EXCEPTION: Wrongs capable of repetition but evading review. Where an injury is bound to occur over and over.
3.2.3.1.1. Roe v. Wade
3.2.3.2. EXCEPTION: Where D voluntarily halts the conduct and remains legally free to resume the conduct at any time, the case is not moot.
3.2.3.3. EXCEPTION: In class action suits, a case will not be dismissed as moot as long one member of the class has an ongoing injury
3.2.4. POLITICAL QUESTIONS DOCTRINE: Some allegations of Cal violations will be left by the political branches to resolve, and not adjudicated by SCOTUS.
3.2.4.1. Cases under the Guaranty Clause are nonjusticiable political questions
3.2.4.2. Challenges to the President's conduct in foreign policy is a nonjusticiable political questions.
3.2.4.3. Challenges to the impeachment and removal process are nonjusticiable political questions.
3.2.4.3.1. Nixon
3.2.4.4. Challenges to partisan gerrymandering are nonjusticiable political questions.
3.2.4.5. Mere fact that it is a political right that is at the centre of the controversy does not mean suit is barred by PQ doctrine. Baker v. Carr gives six types of suits barred by PQ doctrine.
3.2.4.5.1. Textual commitment to another branch
3.2.4.5.2. Lack of judicially manageable standards
3.2.4.5.3. Policy question not fit for judges
3.2.4.5.4. Don't want to embarrass another branch
3.2.4.5.5. Need to adhere to final decision
3.2.4.5.6. Lack of respect for another branch.
3.2.5. JURISPRUDENTIAL LIMITATIONS
3.3. Dredd Scott - Invalidates Missouri Compromise in favor of slave states: Because states are property under the C under originialist reading, no federal law making them citizens could be Cal.
3.3.1. POLICY: Heavily criticized for 1) triggering a depression because of insecurity re: future as a slave or nonslave nation, and 2) being a proximate cause to the Civil War.
3.3.2. Timeline of Cases re: Citizenship and Privileges&Immunities of 9thA
3.3.2.1. SLAUGHTERHOUSE Cases- National P&Is are limited and few. State P&Is are defined by state, and are part of state police powers. 14thA does not restrict state police powers.
3.3.2.2. US. Wong Kim Ark - SCOTUS rules that citizenship happens when born on US soil. Rationale: No mention in C other than in 14thA, which explicitly affirmed the CommonL rule, which makes possible 1) birth, and 2) naturalization. Thus no new restriction. just affirmed by 14thA.
3.3.2.3. Bradwell v. Illinois - Bar admission is a state privilege, not a federal privilege, and thus protected by 14thA PoIC
3.3.2.4. Miner v. Happersett - Voting is a state privilege, not a federal privilege, and thus not protected by 14thA PIoC
3.4. PASSAGE OF 14TH AMENDMENT
3.4.1. POLICY: Dredd Scott was overturned by 14thA.
3.4.2. POLICY: Dual citizenship idea. One is a national citizen of the US and a citizen of whatever state one lives in. In Slaughterhouse cases, SCOTUS found that the P&I Clause of 14thA applies to national citizenship.
3.5. JUDICIAL DECISIONMAKING
3.5.1. Gobitis - Deference to states in matters of national unity as a basis for national security. OVERRULED by Barnette.
3.5.2. Barnette - Overrules Gobitis: Pledge of Allegiance violates 14thA DP and EP because G can't enforce a belief, just conduct, and conduct can only be enforced/suppressed when it presents a clear and present danger to the G.
3.5.3. Plessy . Ferguson - Separate but equal facilities for the races is not a violation of 13thA because a legal distinction is not automatically a legal inequality. SbE is also not a violation of 14thA because large deference to state legislature as long as treatment still was "equal", which was assumed
3.5.4. Brown v. Board of Education - SbE is inherently unequal because separation instills feelings of inequality and is thus violative of 14thA.
3.5.4.1. Bolling v. Board of Education - SbE is violative of 5thA EPClause. (D.C. doesn't have 14thA so that case took care of that).
4. FEDERALISM
4.1. Necessary and Proper clause read broadly - must not be "necessary" in the strict sense, just a legitimate means for an ends that falls under an enumerated power.
4.1.1. McCulloch v. Maryland - Does Congress have the power to i corporate a bank? Can a state tax that bank? 1. Yes, beause N&P clause makes possible anything rationally related to an enumerated power. 2. No, because power to tax would destroy power of federal G, and a part can't tax the whole.
4.2. Slaughterhouse cases - If PoIClause was extended to include state citizenship, it would give federal G too much power.
4.2.1. POLICY: Dual Federalism, where state and federal authority has no overlaps.
5. SEPARATION OF POWERS
5.1. Congress has total power over the appellate jurisdiction of federal courts and SCOTUS
5.1.1. Ex Parte McCardle - Dude has habeas corpus petition successfully picked up by SCOTUS. Original jurisdiction shan't be fucked with by anyone. Appellate jurisdiction is totally up to Congress to expand to eliminate. Here, habeas corpus jurisdiction was given to SCOTUS by Congress in Judiciary Act of 1867. Then, while the petition is on its way to the SCOTUS, Congress eliminates by statute SCOTUS' HC jurisdiction. HELD, that the case cannot be heard because Congress has total control over appellate jurisdiction of the federal courts.
5.1.1.1. POLICY: Bickel says that judicial review is not in C, and is just accepted by all, and that Congress could revoke it at any time and declare itself to be the arbiter of the C.
6. CONSTITUTIONAL CRISES - Cases that occur when we have a crisis in interpreting the C that could potentially destabilize our republic. The task then becomes for SCOTUS to interpret C in a way that fixes the problem.
6.1. Marbury - prime example of how to fix a problem that C did not foresee and does does not contain a built-in fix (change in executive - different G altogether? Too destabilizing!)
6.2. Dredd Scott - prime example of a bad decision that was intended to solve a Cal crisis but instead made it worse.
6.3. Indian tribes are domestic dependent nations, not foreign nations, and cannot sue in SCOTUS. Child/parent.
6.3.1. Cherokee Nation v. Georgia - Cherokee Indians were trying to say that they were a foreign nation and brought suit in front of SCOTUS claiming that original jurisdiction exists. SCOTUS holds that Indian tribes are domestic dependent nations, a made-up term.
6.3.1.1. Indians were fucked after this and had no way of legal recourse.
6.3.1.2. Otherwise, there would be a patchwork of foreign nations all across the US.
6.3.1.3. SCOTUS was saving face, too: Georgia would not have enforced a pro-Indian law, and President Jackson wouldn't have done anything either.
6.4. Congress has sole power of dealing with Indian tribes. Not the states, or executive.
6.4.1. Worcester v. Georgia - Georgia was trying to regulate Indian relations, SCOTUS strikes it down.
6.5. President cannot suspend habeas corpus.
6.5.1. Ex Parye Merryman - SCOTUS angrily scolds Abe for suspending HC during the civil war.
6.6. SCOTUS" interpretation is final and binding upon state legislature and executive.
6.6.1. Cooper v Aaron - Governor and state legislature was trying to avoid implement changes from Brown, arguing that SCOTUS' interpretation of C was not binding on them.