Constitutional Litigation

Constitutional litigants must meet certain constitutional and prudential standards. That a constitutional dispute exists is not sufficient foundation for constitutional litigation. Parties challenging the constitutionality of some government action must establish jurisdiction, standing, and justiciability in order to have a court resolve their constitutional dispute. They must establish that the court hearing their claim has authority to adjudicate their claim, that they are proper party to raise that claim, and that their claim is appropriate for judicial resolution. These procedural rules have substantive impact. Many constitutional claims, valid and invalid, are not litigated because constitutional and other rules prevent them from being litigated at all or place substantial barriers in the way of potential litigants.

The rules that govern constitutional litigation have three sources. The main source is the Constitution of the United States, most notably Article III. Article III limits the judicial power to “Cases,” which means that courts can resolve disputes over the meaning of the Constitution only when those disputes take the form of a traditional lawsuit. Legislation is a second source. The Constitution vests Congress with the power of establishing lower federal courts and determining their jurisdiction. Congress may also promote constitutional litigation by providing potential litigants with attorneys and other resources. Judge-made prudential rules are the final source of rules for constitutional litigation. As a matter of comity, for example, federal courts insist that litigants in habeas corpus cases exhaust their state court options before appealing their constitutional case to a federal court. The so-called exhaustion requirement means that a federal court will not normally adjudicate a habeas corpus claim if the petitioner has not had the claim fully adjudicated by a state court. This restraint on the part of federal courts is not compelled by any provision in the Constitution but is considered a desirable means of fostering healthy federal-state relationships.


Constitutional litigation may take place only in a court that has jurisdiction to adjudicate a dispute over the meaning of the Constitution. The Supreme Court in Marbury v. Madison, 5 U.S. 137 ( 1803 ), refused to provide a remedy to William Marbury because the justices ruled that they lacked the original jurisdiction necessary to adjudicate his constitutional claim. Article III establishes the basic framework for federal jurisdiction in constitutional cases. Federal courts have jurisdiction in all “Cases … arising under th[e] Constitution.” The Supreme Court has original jurisdiction in any case “affecting Ambassadors, other public Minister and Consuls, and those in which a State shall be Party,” no matter what the legal issue. This means that these litigants may start their case at the Supreme Court. In all other cases, Article III continues, “[T]he supreme Court shall have appellate Jurisdiction, with such exceptions, and under such Regulations as the Congress shall make.” This means that litigants must normally first present their clams to either a state court or a lower federal court. The Supreme Court may only hear most constitutional claims on appeal from these tribunals.

The precise meaning of the exceptions clause has been debated for more than two hundred years and remains unsettled. The Supreme Court in Marbury ruled that the exceptions clause did not give Congress the power to vest the Supreme Court with original jurisdiction in cases in which Article III vested the Supreme Court with appellate jurisdiction. The justices in Cohens v. Virginia, 19 U.S. 264 ( 1821 ), ruled that Congress did have the power to vest the Supreme Court with appellate jurisdiction in cases in which Article III vested the Supreme Court with original jurisdiction. The more difficult question is whether Congress must ensure that either the Supreme Court or at least a lower federal court has some form of jurisdiction over every constitutional case that might arise. No Supreme Court decision has fully settled this issue.

Martin v. Hunter's Lessee, 14 U.S. 304 ( 1816 ), and Ex parte McCardle, 74 U.S. 506 ( 1869 ), are the two most important Supreme Court cases that discuss whether federal courts must be vested with jurisdiction over all constitutional questions. Justice Joseph Story's opinion in Martin declared that Congress had an obligation to vest at least one federal court with jurisdiction over each federal question that might be litigated. Story indicated that this constitutional obligation was not justiciable, that no federal court could hear a case on appeal unless Congress had vested that court with jurisdiction. Ex parte McCardle held that when Congress repealed a law vesting the Supreme Court with appellate jurisdiction over certain federal questions, the Court could not judge the merits of such cases, even cases that had already been briefed and argued before the repeal was passed. Chief Justice Salmon P. Chase then pointed out that, although Congress had repealed one source of federal jurisdiction, there was another jurisdictional route by which William McCardle could bring his appeal to the federal courts. The precise significance of the passage is unclear. Chase might have simply been commenting on the existing state of federal jurisdiction, or he might have been indicating that Congress could repeal one path of obtaining Supreme Court review only because another path remained open.


Constitutional litigation may take place only when the parties have standing to litigate a constitutional dispute. To have standing, the person or persons making the constitutional claim must demonstrate that they have a particularized injury caused by the defendant's unconstitutional actions that can be redressed by the Court. The injury must in some sense be particular to the plaintiff. In United States v. Richardson, 418 U.S. 166 ( 1974 ), the Supreme Court declared that taxpayers do not have standing to litigate a claim that the secretary of the treasury had a legal obligation to publish certain financial records, in part because the taxpayer filing the lawsuit could not demonstrate that his injury differed in any appreciable degree from that incurred by any other person who might want to know how government funds were being spent. The injury must be caused by the defendant's unconstitutional actions. A state governor cannot be sued for an injury caused by a federal employee, because the state governor has no supervisory power over federal employees. Finally, the federal court must be capable of remedying the injury. One cannot ask a federal court for true love, even if a constitutional violation has resulted in a broken heart, because federal courts have no power to make one person love another. Standing doctrine in the United States has expanded and contracted. The Warren Court tended to expand standing. In Flast v. Cohen, 392 U.S. 83 ( 1968 ), the Supreme Court held that a taxpayer had standing to seek an injunction preventing the implementation of a federal law authorizing the Secretary of Health, Education, and Welfare to spend money on religious schools. The Burger, Rehnquist, and Roberts Courts have tended to cut back on standing. In Hein v. Freedom from Religion Foundation, 551 U.S.587 ( 2007 ), the justices ruled that a taxpayer did not have standing to challenge a presidential decision to provide resources to religious institutions.


Constitutional litigation may take place only when the dispute is appropriate for judicial resolution. Justiciability has two prongs. Some disputes are never appropriate for judicial resolution. These are called political questions. Other disputes are not appropriate for judicial resolution at particular points in their life cycle. Litigation that occurs too early in the life cycle of a dispute may be dismissed as not being sufficiently ripe. Litigation that occurs too late in the life cycle of a dispute may be dismissed as being moot.

The Supreme Court has declared that judges should not settle certain constitutional disputes that raise what are called “political questions.” In Baker v. Carr, 369 U.S. 186 ( 1962 ), the Supreme Court declared that political questions exhibited some of the following characteristics:

a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question (369 U.S. at 216).

The Supreme Court in Baker held that the justices could adjudicate disputes over legislative apportionments because the Constitution vested the Court with the power to resolve such disputes and the justices could resolve that dispute without interfering with Congress or the president. In Nixon v. United States, 506 U.S. 224 ( 1993

Constitutional litigation may take place only at particular points in the life cycle of a dispute. A dispute is normally considered not ripe for litigation when, although parties disagree on the constitutionality of some government action, the government has not actually taken the disputed action. In Poe v. Ullman, 367 U.S. 497 ( 1961 ), the Supreme Court refused to permit Connecticut doctors to challenge a ban on prescribing birth control because no evidence existed that Connecticut prosecutors were enforcing that law. A dispute is normally considered “moot” when the injury has already been remedied or can no longer be remedied. In DeFunis v. Odegaard, 416 U.S. 312 ( 1974 ), the Supreme Court dismissed a challenge to race-conscious admissions policies at the University of Washington Law School because the plaintiff had previously obtained a temporary injunction permitting him to enroll and, while the lengthy litigation was taking place, had accumulated the credits necessary to graduate.

The procedural rules that govern constitutional litigation have substantive content. The political question doctrine, although narrowed in the early twenty-first century, prevents judicial resolution of certain constitutional disputes. Courts will not consider, for example, whether a state has a republican form of government. When litigation is theoretically possible, standing and justiciability rules often inhibit litigation in practice. Doctors in Connecticut after Poe v. Ullman were wary of opening birth control clinics that provided contraception services to poor people for fear of prosecution. Many constitutionally controversial government spending programs cannot be challenged because no plaintiff meets the standing requirements.

SEE ALSO Justiciability ; Mootness ; Political Question ; Ripeness ; Standing .


Barkow, Rachel E. “More Supreme than Court? The Fall of the Political Question Doctrine and the Rise of Judicial Supremacy.” Columbia Law Review 102 (March 2002): 237–336.

Fallon, Richard H., Jr., John Manning, Daniel Meltzer, and David Shapiro. Hart and Wechsler's The Federal Courts and the Federal System. 6th ed. New York: Foundation Press, 2009.

Stearns, Maxwell L. “Standing at the Crossroads: The Roberts Court in Historical Perspective.” Notre Dame Law Review 83 (May 2008): 875–96.

Mark A. Graber
University of Maryland Carey School of Law