Campbell Law Review Volume 12 Article 2 Issue 3 Summer 1990 April 1990 Untying the Gordian Knot: An Orderly Approach to Federal Jurisdiction Issues in a Basic Course in United States Constitutional Law Thomas C. Marks Jr. Follow this and additional works at: http://scholarship.law.campbell.edu/clr Part of the Jurisdiction Commons Recommended Citation Thomas C. Marks Jr., Untying the Gordian Knot: An Orderly Approach to Federal Jurisdiction Issues in a Basic Course in United States Constitutional Law, 12 Campbell L. Rev. 383 (1990). This Article is brought to you for free and open access by Scholarly Repository @ Campbell University School of Law. It has been accepted for inclusion in Campbell Law Review by an authorized administrator of Scholarly Repository @ Campbell University School of Law. Marks: Untying the Gordian Knot: An Orderly Approach to Federal Jurisdic UNTYING THE GORDIAN KNOT: AN ORDERLY APPROACH TO FEDERAL JURISDICTION ISSUES IN A BASIC COURSE IN UNITED STATES CONSTITUTIONAL LAW THOMAS C. MARKS, JR.* I. INTRODUCTION .................................... 384 II. O VERVIEW ....................................... 385 III. A NALYSIS ........................................ 386 A. Barrier I, Part 1. Federal Question *...... 386 B. BarrierI, Part 2. Congressional Control Over the Supreme Court's Appellate Jurisdiction ....... 387 C. Barrier I, Part 3. Eleventh Amendment P roblems ................................... 389 D. Barrier II, Part 1. Case or Controversy In G eneral..................................... 391 E. Barrier II, Part 2. Ripeness .................. 393 F. Barrier II, Part 3. Mootness .................. 395 G. Barrier II, Parts 4 and 5. Taxpayer Standing and Citizen Standing: A Confusing Dichotomy. 400 H. Barrier II, Part 6. Collusive Lawsuits ......... 407 I. Barrier III, Part 1. Justiciability In General... 408 J. Barrier III, Part 2. The Political Question Doctrine .................................... 409 K. Barrier IV, Part 1. The Seven Ashwander Rules 411 L. BarrierIV, Part 2. Citizen Standing, The Powell V iew ............ ........................... 4 14 M. Barrier IV, Part 3. Third Party Standing ..... 415 N. Barrier IV, Part 4. Adequate and Independent State Ground ................ 419 0. BarrierIV, Part 5. Abstention Doctrines ...... 421 * B.S., 1960, Florida State University; LL.B., 1963, Stetson University; Ph.D., 1971 University of Florida. Professor of Law, Stetson University. 383 Published by Scholarly Repository @ Campbell University School of Law, 1990 1 Campbell Law Review, Vol. 12, Iss. 3 [1990], Art. 2 CAMPBELL LAW REVIEW [Vol. 12:383 P. Barrier IV, Part 6. Certiorari................. 422 IV. CONCLUSION .............. ...................... 422 I. INTRODUCTION Not surprisingly, it is common practice to begin a basic consti- tutional law course with Marbury v. Madison.1 Many casebooks ei- ther reflect or cause this practice.2 Marbury's concept of judicial review is then generally expanded through the introduction of the early formative cases.3 At this point the questions of limitations on 1. 5. U.S. (1 Cranch) 137 (1803). This case is generally credited with having established the concept of judicial review within the federal court system. Marbury was described by Professors Robert E. Cushman and Robert F. Cushman as having "a certain strategic significance." R.E. & R.F. CUSHMAN, CASES IN CONSTITUTIONAL LAW 17 (3d ed. 1968). Although Marbury was the first Su- preme Court decision to declare an act of government unconstitutional it was not the first in which the power of judicial review was exercised by the Court. There is evidence that public opinion tended to look upon the power of judicial review as one of the normal incidents of judicial power. The Court considered the constitutionality of the carriage tax in Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796), and its refusal to declare it unconstitutional, as well as the lower federal courts to hold unconstitu- tional the Alien and Sedition Acts and the United States Bank Charter, was bitterly condemned by the Republicans, who seemed to feel that the courts were neglecting their duty in not sustaining the Constitution against legislative usurpation of power. That Congress itself recognized the power is perhaps evidenced by their alteration of the term of the Supreme Court to prevent the Repeal Act of 1802 from coming to the Court for review for more than a year after its enactment. Id. 2. Consider, for example the following well known works: J. BARRON & C. DIENES, CONSTITUTIONAL LAW: PRINCIPLES AND POLICY (2d ed. 1982); G. GUNTHER, CONSTITUTIONAL LAW (11th ed. 1985); W. LOCKHART, Y. JAMISAR, J. CHOPER AND S. SHIFFRIN, CONSTITUTIONAL LAW, CASES - COMMENTS - Qs - QUESTIONS (6th ed. 1986); R. ROTUNDA, MODERN CONSTITUTIONAL LAW (3d ed. 1989). That Marbury as genesis is not universally the case is illustrated by R.E. & R.F. CUSHMAN, CASES IN CONSTITUTIONAL LAW (3d ed. 1968). 3. These are usually thought to include Fairfax's Devisee v. Hunter's Lessee, 11 U.S. (7 Cranch) 603 (1813), and its generally more well known sequel, Martin v. Hunter's Lessee, 14 U.S. (1 Wheat) 304 (1816). The former extended Marbury's doctrine of judicial review to acts of state governments while the latter estab- lished the Supreme Court's appellate review power over state courts in matters involving questions of federal law. At times one finds Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810), which was actually the first case in which judicial review was applied against the states. Also, sometimes included is Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821), which extended the Martin rule to criminal as well as civil matters. See generally supra note 2. http://scholarship.law.campbell.edu/clr/vol12/iss3/2 2 Marks: Untying the Gordian Knot: An Orderly Approach to Federal Jurisdic 1990] THE GORDIAN KNOT the power of judicial review arise and with them the difficulty of organization4 to which this article will address itself.5 As a firm be- liever in diagrams," I have organized the basic limitations on judi- cial review suitable to an introductory law school federal constitu- tional law course into a series of barriers through which a litigant who seeks judicial review must travel before he achieves his goal of actually having the Court exercise the power it has had since at least 1803, the year of Marbury. II. OVERVIEW The barrier diagram that is the subject of this paper, and in reproduced below, divides the limitations on judicial review com- monly found in a law school introductory federal constitutional law course into four barriers within which are grouped similar limita- tions. The diagram also illustrates that a litigant seeking the Court's exercise of judicial review would be perceived at the left of the first barrier with his goal being to pierce all four so that he would end up to the right of the forth barrier with the Court actu- ally deciding his constitutional question by exercising judicial re- view. It should, of course, be emphasized that merely because the Court chooses to decide the question that it will not necessarily decide it his way. 4. See Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208 (1974). The Supreme Court recognized that there is no organizational pattern in this area that is commonly recognized by the federal courts. It spoke of "[t]he lack of a fixed rule as to the proper sequence of judicial analysis of contentions involving more than one facet of the concept of justiciability." Id. at 215, note 5. By "jus- ticiability," the Court apparently meant constitutional limitations on the exercise of judicial power by federal courts. Those are the limitations set out in the first three barriers in the diagram found infra in the text at page 386. 5. See generally supra note 2 and the different tracks they take. Having said this, the author wishes to point out that no criticism of these works is intended or is to be implied. Each teacher has his or her way of organizing things. Mine seems to have worked well over the years and it is my desire to share it with my col- leagues who teach introductory United States Constitutional Law. 6. A Chinese Proverb has it that "one picture is worth more than ten thou- sand words." R. BARTLETT, FAMILIAR QUOTATIONS, at 1213 (12th ed. 1951). In more modern times, Ivan Sergeyevich Turgeniev, a nineteenth century Russian author, has stated, "A picture may instantly present what a book could set forth only in a hundred pages." Id. at 1187. Published by Scholarly Repository @ Campbell University School of Law, 1990 3 Campbell Law Review, Vol. 12, Iss. 3 [1990], Art. 2 386 CAMPBELL LAW REVIEW [Vol. 12:383 I Diagram BARRIER BARRIER BARRIER BARRIER I II IIl IV Non Discretionary Non Discretionary Non Discretionary Discretionary Pure Jurisdiction Case or Justiciability Issues Rules of Prudence Issues Controversy Issues 1) Federal Question 1) The Concept 1) Justiciability in 1) The Seven of Case or General Ashwander Rules 2) Congressional Controversy Successful Control Over the in General 2) The Political 2) Citizen Standing Litigant in Supreme Court's Question (Powell view) the sense Appellate 2) Ripeness Doctrine that the Jurisdiction 3) Third Party Court will Hopefu 3) Mootness Standing decide the 3) 11th Amendment constitutional Problems 4) Taxpayer Litigant 4) Adequate and issue Standing Independent (exercise State Ground Judicial 5) Citizen Standing Review), (Rehnquist view) 5) Abstention although Doctrine perhaps not 6) Collusive to his liking. Lawsuits 6) Certiorari In using this diagram, it must be heavily emphasized to the students that the "hopeful litigant" in his quest to become the "successful litigant" will not necessarily, and in all likelihood will never, have to deal with every limitation in every barrier. Usually he will have to contend with no more than one or two in total. The barrier scheme illustrates all the potential limitations on judicial review that should concern the student in an introductory federal constitutional law course.