. SEPARATION OF POWERS:
· A. Generally:
o 1. Distinct Branches:
§ a. Each of the three distinct branches are granted individual powers articulated by the first three articles of the Constitution.
§ b. Three branches are co-equal, with different checks on each others’ power in order to protect against tyranny.
§ c. The triparte system encourages each branch to trespass on each others’ powers in order to keep them distinct and separate.
o 2. Types of Clashes:
§ a. One branch tries to aggrandize its own power.
ú i. This is an attempt to increase powers beyond those specifically enumerated by the Constitution.
§ b. One branch tries to appropriate power that is rightfully held by another branch.
ú i. Overlaps frequently with “a” above.
§ c. One branch tries to give up power to another branch.
ú i. This is still a problem since separation is necessary to maintain the structure imposed by the Constitution.
o 3. Analysis of Issues:
§ a. If it appears there is a power struggle on the exam, first identify the branches involved
§ b. State the issue: “This is a separation of powers struggle between ___ and ___”
§ c. Specify the type of clash (above) that is presented.
· B. The Federal Judicial Power:
o 1. Judicial Review: Marbury v. Madison (1803)
§ a. Key Principles:
ú i. The federal judicial power includes the power to grant a remedy when a right is violated. (no remedy, no right)
ú ii. Courts may NOT review “political questions”
ú iii. The Court may review the actions of the Executive (mandatory duties, not discretionary decisions)
ú iv. The Court may review laws and acts of the Legislature for Constitutionality.
ú v. The Court’s jurisdiction cannot be expanded by Congress beyond what is specifically enumerated in Article III (Article III is the ceiling)
ú vi. The Court must decide cases consistent with the Constitution, which means interpreting the Constitution.
· “It is emphatically the province and duty of the judicial department to say what the law is.”
o 2. Limitations on Judicial Power:
§ a. Interpretive limitations:
ú i. Originalism: The Court is justified in protecting constitutional rights only if they are clearly stated in the text or intended by the framers
· If the Constitution is silent: originalists say it is for the legislature, unconstrained by the courts, to decide the law
· Criticism of theory: The drafters of the Equal Protection Clause did not intend to protect women from discrimination, but it is widely accepted that the Clause should apply to gender discrimination
o Justice Scalia has argued that the focus should not be on the framers’ intentions, but on the meaning of the Constitution as evidenced by the text and the practices at the time the Constitution was ratified
ú ii. Non-Originalism: the Court should have substantial discretion in determining the meaning of the Constitution (expansion of judicial power)
· Proponents believe that it is important that the Constitution evolve by interpretation, NOT just by amendment
· View that courts should go beyond that set of references and enforce norms that cannot be discovered within the four corners of the document
· If the Constitution is silent: non-originalists think that it is permissible for the court to interpret the constitution to protect rights that are not expressly stated or clearly intended
ú iii. Interpretation of the 2nd Amendment
· 2nd Amendment: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
· Three Different basic interpretations of the 2nd Amendment:
o 1. The 2nd Amendment does not apply to individuals; rather, it merely recognizes the right of a state to arm its militia [Silveira v. Lockyer (2003)]
o 2. The 2nd Amendment recognizes some limited species of individual right. Ho
tially, but events occurring after the filing deprive the litigant of an actual state in the controversy
o (a) Deciding a moot case would in effect constitute the issuing of an advisory opinion.
o (b) Exception #1- “Capable of repetition, yet evading review”: Not treated as moot when a different person could be injured in the same way in the future. (Pregnancy, etc.)
o (c) Exception #2- Voluntary cessation: Not treated as moot if defendant voluntary ceases conduct, unless it appears very unlikely to resume
o (d) Exception #3- Collateral consequences: Not treated as moot if there are still other adverse consequences that will be suffered by plaintiff. (Criminal record based on unconstitutional law)
ú iii. Standing Doctrine:
· (1) Constitutional Standing (stems from “case” or “controversy” requirement.
o (a) Injury in fact- Plaintiff must have suffered an actual injury, not merely a possible future one.
o (b) Causation- Challenged action must be the “but-for” cause of injury.
o (c) Redressability- A favorable decision must be reasonably likely to redress the injury.
· (2) Prudential Standing (stems from Court’s “competence” to hear certain types of disputes.
o (a) Stake- Plaintiff must have an actual personal interest in the controversy.
o (b) Third-party standing- No vicarious assertion of claims, except where close relationship exists.
o (c) Generalized grievances- No standing where injury is one suffered by millions (i.e. taxpayers)
ú iv. Political question doctrine:
(1) “Political case” v. “political quest
