CONSTITUTIONAL LAW Schwinn Spring 2015
JUDICIAL REVIEW
· Definition = process by which courts decide whether actions of Congress/Government officials comply with Constitution
· Purpose – to ensure that Government acts in accordance with Constitution by giving Judicial branch the authority to declare statutes or works of legislative officials as unconstitutional
· Introduced for the first time by C,J. Marshall in Marbury v. Madison
o ISSUE in Marbury v. Madison = NOT whether the power of judicial review exists, RATHER it was when and under what circumstances will the Power of Judicial Review be invoked
· Significance of Marbury v. Madison = Article III of Constitution grants original jurisdiction to SCOTUS in a “narrow” view (we know exactly what it is) of how far its review power extends (very few cases), and the framers did this intentionally in order to maintain the narrow/defined view, and to not have to keep extending the scope of Federal courts’ power to review
o By keeping it the way it was (narrow), it maintains that SCOTUS has Original Jurisdiction and retains right/power to veto
§ Extending the scope would weaken Courts’ power (more people voting) and set a precedent
o Court may hear all other cases within the federal judicial power only in its appellate capacity
o Marshall argues = judicial review is used only when there is no other choice
· Article III divides Court’s authority into original cases (filed originally in Federal court as a trial court) OR as appellate cases (cases heard on appeal from judgment of a lower court)
o To interpret what the Framer’s intentions were when they wrote the Constitution (impossible since they’re all dead), Originalists used BOTH their understandings the Framers’ intentions and in order to develop the idea of original meaning
· C.J. Marshall’s 5-Step Judicial Review analysis:
i. Judicial Power obviously includes the power to decide cases
ii. To decided cases, the judiciary must rely on various sources of law
iii. Sometimes sources of authority conflict or disagree
iv. To resolve the sources of law conflict, the Court must choose one over the other
v. When one source of the conflict is Constitution, the Constitution prevails
§ Article IV § 2 = “Constitution is the supreme law of the land”
· Article III does NOT define the scope of judicial power
CONSTITUTIONAL INTERPRETATION
· Overview of Constitution:
o Article I = Sets forth the Legislative Power at the Federal level
§ Bicameral system
§ Makes bills into law
§ Allocates what Congress may or may not legislate
o Article II = Sets forth the Executive Powers
§ How President is elected/electoral college
§ What independent powers the President has
§ Lists the President’s Enumerated vs. Implied powers
o Article III = Sets forth the Judicial Power at the Federal level
§ Federal court system
§ Unresolved issue — Congress is allowed to later create further Federal courts (Judiciary Act of 1789)
o Article IV = Explains what States can and cannot do with respect to each other
§ “Full faith and Credit” = each State must respect the laws, decisions, and privileges of the other States
o Article V = Sets forth the way in which the Constitution can be Amended
§ 3 ways to Amend the Constitution:
ú 1. ⅔ votes of each House of Congress and ¾ of the States pass
ú 2. Constitutional convention
ú 3. ????
o President has NO OFFICIAL ROLE in Amendment process
o Article VI = Explains the relationship between Federal and State law
o Article VII = Sets forth the process for Ratification
· Originalism vs. Non-originalism
o Originalism view = “Judges deciding Constitutional issues should confine themselves to enforcing norms that are stated or clearly implicit in the written Constitution”
o Non-originalism view = “contrary view that courts should go beyond that set of references and enforce norms that cannot be discovered within the 4 corners of the document.”
· Judges are responsible to follow the instructions of law makers including the Constitution and statutes
o Practice as Precedent = the way we have always done things; gives meaning to ambiguous terms in the Constitution
· Modalities of Constitutional Interpretation
1. Historical = relying on the intentions of the framers or ratifiers of the Constitution
2. Textual = looking to the meaning of the words of the Constitutional alone, as they would be interpreted by the average contemporary “man on the street”
3. Structural = inferring rules from the relationships that the Constitution mandates from the structure it sets up
4. Doctrinal = Applying rules generated by precedent
5. Ethical = Deriving rules from the moral commitments of the American ethos that are reflected in the Constitution
6. Prudential = seeking to balance the costs and benefits of a particular rule
CONGRESSIONAL LIMITS ON JUDICIAL AUTHORITY
· Congressional Control over Article III Jurisdiction
o What can Congress do with Federal court’s Original jurisdiction?
§ NOTHING; it is fixed and laid out in the Constitution (Marbury v. Madison)
§ SCOTUS is granted Original jurisdiction over all cases related to:
ú Ambassadors & State officials
ú Cases where the State is a party
What can Congress do with SCOTUS’ Appellate jurisdiction?
§ Legislature has power to LIMIT Appellate jurisdiction with Exceptions Clause
ú Legislature has general power to create exceptions to SC jurisdiction
· Ex parte McCardle, 1869
ú Congress can say whether a particular may hear the case, but it CANNOT “direct the rule of decision” (effect the outcome of the case)
ú Congress cannot effect the outcome of how a Federal court will rule because it would violate separation of powers set out by Constitution
· U.S. v. Klein (Congressional Limits on Judicial Authority)
§ Legislature CANNOT alter the effect of Constitution or powers enumerated within
ú Ex. a
olicies Underlying Justiciability Requirements
o 1. Justiciability doctrines are closely tied to separation of powers
o 2. Justiciability doctrines conserve judicial resources, allowing for Federal courts to focus their attention on matters most deserving for review (ex. Mootnessà dismissed)
o 3. Justiciability doctrines are intended to improve judicial decision-making by providing Federal courts with concrete controversies best suited for judicial resolution
o 4. Justiciability doctrines also promote fairness, especially to individuals who are not litigants before the court
· Checks on Judicial Power
o Article I gives Legislature power to impeach Judges
§ Must be for high crimes and misdemeanors
o Amendments may work around judicial decisions (Article V)
§ ⅔ of both houses and ¾ of States
§ Not commonly used; the Amendment process is much more commonly used to address other issues (ex. allocation of governmental power)
o Article II gives Executive the power to power to impeach Judges
ADVISORY STANDING OPINIONS
· Advisory Opinion = somebody (usually another branch of government) asking a Federal court its opinion (not for a ruling or how the Court would rule) on a matter that is not presently before it
o Federal court will NOT grant advisory opinions (decisions that are not final)
o MUST BE an adversarial dispute = at least two opposing parties in the suit
· Cases and Controversies Clause = Federal courts can only decide matters involving Cases and Controversies presently before the Court; cases where the parties are sufficiently at odds as to where they are able to present the Court with strong cases for both sides in the matter. Must be strong arguments on both sides
o SCOTUS refuses to give advisory opinions on legal matters of redress; can only decide cases and controversies before the court
o When there are multiple parties arguing, the Court is able to base its opinion off the best arguments provided
o If Court doesn’t have enough information from both sides to make fair ruling (ex. if only one side is present to make its argument), the court will decline to give its opinion on the matter
· Federal courts lack jurisdiction over advisory opinions
o Not their job to render opinions of what is going on in other 2 branches, until some type of case/controversy materializes from those cases
· Acts as a check on Judicial Review
