Rutgers University School of Law
Professor Diana Sclar
(1) Establish justiciability – Standing/Mootness/Ripeness/PQ/advisory opinion
(2) Which amendment/clause/congressional power/doctrine is implicated?
(3) Which Standard of Review or Test applies?
(4) Possibly mention methods of interpretation – traditionalism/originalism/restraint
(4) Dual federalism/sovereignty issues
(5) Separation of powers & preemption issues
Court may overrule previous decisions that are considered erroneous or to adapt to changed circumstances.
· Dead Hand Problem – why consent to be ruled by a document written hundreds of years ago by old white men.
o Originalism – founders interpretation
o Traditionalism – historic interpretation
o Restraint – unless the text and history of the Constitution are clear, courts should defer to legislatures and agencies (modern interpretation).
I. Heller (traditionalism) – issue: whether DC ban on possession of handguns within the home violates the 2nd amendment?
a. The 2nd Amendment is divided into a prefatory clause and an operative clause
i. Prefatory: announces a purpose, resolves ambiguity of the operative clause; if the operative clause is clear, there’s apparently no purpose for the prefatory clause
b. Majority opinion relies on traditionalism in reaching its decision – relied on 9 state constitutional provisions and provisions adopted by Pre-Civil War state courts to help interpret the phrase “bear arms”
c. Natural Right to Self Defense – there are some rights that pre-existed the Constitution. The Constitution just confirms those rights.
d. Dissent – 2nd Amendment rights are not absolute and may be regulated. Gun violence is a public safety matter in which states have a high interest and the court should defer to the legislature in cases where the legislature is likely to have greater expertise.
II. McConnell: Textualism & the Dead Hand of the Past
a. Living Constitution – only those parts of the constitution that are valid should be enforced, ignoring parts that don’t speak to modern realities
b. The framers don’t represent the U.S. today
c. Responses to Dead Hand – the Constitution derives its authority from the implicit consent of the people of subsequent generations.
d. Textualism – interpreting statutory language according to its ordinary meaning, the way a reasonably objective user of the words using them in the same circumstances would interpret them.
· Judicial Review
o Judicial review refers to the judiciary’s power to set aside actions, including statutes and executive decisions, by the political branches of the national gov. and states
I. Marbury v. Madison: issue: whether Marbury had a right to be appointed as a Judge?
a. The Constitution is the supreme law of the land, unchangeable by ordinary means
b. The court has the authority to review whether statutes and gov. acts are constitutional and may declare them invalid.
c. Writ of Mandamus – The court has the authority to order senior executive officials to perform their duties and follow the law.
II. Cases and Controversies
a. The lines of separation drawn in the Constitution prevent the judiciary from giving advisory opinions to the president or the executive branch on issues of executive power or making extrajudicial decisions.
b. Courts may only decide actual disputes between real parties; they may not simply weigh in with advice on the great questions of the day in the absence of a litigated dispute.
c. In order for the court to have power to hear the suit there must be Justiciability:
1. Court must not be offering an advisory opinion
2. Plaintiff must have standing
a. Plaintiff has “alleged a personal stake in the outcome of the controversy” as to warrant invoking the court’s jurisdiction and remedial powers on his behalf.
i. P must have a concrete injury.
ii. The injury must be traceable to the Ds conduct.
iii. The injury must be redressable by the court if relief is granted.
b. (1) May not be a generalized grievance “shared in substantially equal measure by a large class of citizens or (2) P must assert his own legal rights and interests, cannot rest his claim on the legal rights of third parties.
3. Issues must be ripe.
a. Has the P sued too soon?
b. Will parties suffer h
– one type of dual sovereignty. A line between what is national power & what is state power, so there is no overlap between the two. Supreme Court is to determine which side of the line cases lie.
§ Court is trying to find the extent to which constitute confers power on congress. All listed in Article 1 (8) & those prohibited powers in section 9.
I. McCulloch (Necessary & Proper: beneficial to exercise of power & only enumerated powers) – issue: whether Congress had the authority to establish a national bank and whether MD may tax U.S. Bank within its jurisdiction.
a. Congress must have a choice of means to exercise its ENUMERATED rights. Enumerated right does not need to be stated explicitly but generally.
i. Necessary & Proper Clause – the necessary means by which Congress exercises its duties or power must not be impeded.
1. Necessary does not mean “absolutely necessary” but rather beneficial to the exercise of power. Clause broadens Congress’ power rather than limits it.
2. Only aids ENUMERATED powers.
b. Court proclaimed that a state is a subordinate sovereign as to its relation with the federal government.
i. Federal government is established for the people and to benefit their interests, it is not established for the states or under their control.
II. Ogden (Exercise of Congressional Power within a state, state law yields to fed) – issue: whether a NY law that conflicts with a Congressional act must yield to it.
a. Court interprets “commerce” as including navigation. Interpreted commerce “among” the several states to mean commerce which concerns more than one state and commerce within states, therefore Congress may exercise power within a state.
b. Federal and state law may come close to overlapping but must maintain their individuality.