The functions of the Constitution:
1. Establishing the National Government and dividing authority among the three branches
i. Art I:Legislative Powers vested in Congress consisting of Senate and House of representatives.
ii. Art II:Executive Power vested in a President of the United States of America.
iii. Art III:Judicial Power vested in one Supreme Court.
· Why divide power into 3 powers? The idea of dividing the power to provide a check on powers.
2. Dividing authority between the Federal Government and the states
· To protect freedom
3. Protecting individual rights
· Constitution doesn’t really do anything. Its structure and provisions protect individual rights.
“Separation of Powers” vs. “checks and balances”
o Always also consider if there is a separation of powers issue. (e.g. impermissible interference by Congress with the President’s authority to execute federal law.)
o 2 separate standards (ideas) about “separation of powers”:
i. Separation of powers: we have 3 branches each with distinct powers.
ii. System of checks and balances: assumes each in each others mix preventing one from acts of their own to some degree; e.g. president’s power to veto.
o A rule might look right under (i) but really bad under (ii).
o These two are in tension with one another.
ARTICLE III – JUDICIAL POWER
o The judiciary has the power to declare a federal law unconsitutional
i. this is because the constitution is law, thus as persons are entitled to have their cases decided in accordance with the law, the court has the power to decide cases based on the constitution
o (JUDICIAL SUPREMACY) the Supreme Court is the ultimate arbiter of the constitution, and it is its role to decide what conforms to the constitution
POLICYàprovides a check on the legislative power regarding constitutional rights
Down side-“counter-majoritarian” the court, which is not politically accountable, is interpreting the constitution
o “SC shall have appellate jx, both as to law and fact, with such exceptions, and under such regulations as the congress shall make.”
o Although Constitution is silent as to whether fed courts have this authority, Marbury established the authority for judicial review of both federal executive and legislative acts. Reasons: Court’s position to apply the law; uniformity of law; more principled; tenure; check on Congress; unelected officials.
o Marbury: Some matters such as whether to veto a bill or who to appoint for an office are entirely w/in the President’s discretion and cannot be judicially reviewed (political Qs). But where the executive has a legal duty to act or refrain from acting, the federal judiciary can provide a remedy.
o Marbury established that Art III is the ceiling of federal court original jurisdiction; Art III enumerated its original jx and Congress can’t enlarge that -> the principle that fed courts are courts o limited jx.
o The authority of Supreme Court for judicial review of state court decisions on federal issues was established in two cases in 19th century (Martin, Cohens): justification:
· To ensure uniformity in the interpretations of federal law;
· Supreme Court’s appellate jx;
· need to police states. (state favoritism)
Marbury v. Madison: when President Adams on his last day in office appointed judges, but all of their commissions were not delivered in time, and succeeding president Jefferson ordered the outstanding commissions not to be delivered, when the uncommisioned judges brought suit for mandamus, the Supreme Court held that it was within their authority to review the constitutionality of the acts of congress because the constitution is law as dictated by the Supremacy Clause.
Martin v. Hunter’s Lessee: when a VA court held that a state land grant was superior to an international treaty agreement, the Supreme Court held that it had the power to overrule the VA court’s holding. This is because the Supreme Court has jurisdiction over issues of federal law in state courts, to ensure uniformity in the interpretation of federal law.
Cohens v. VA: when 2 brothers were convicted in VA for selling congressionally permissible lottery tickets, the Supreme Court held that it had jurisdiction over ALL issues of federal law in state courts, including criminal issues.
Limits on Judicial authority:
Interpretive limits on the judicial authority -to settle the vague and unanswered questions in the constitution
· Narrow view
· Embraced by Scalia & Thomas
· Focuses on the intent of the framers (often looks to English/common law)
· Focuses on the contemporary meaning of the text
· The accepted meaning of text at the time of the creation
· A right must be expressly stated, or clearly intended to be conferred; if the constitution is silent, the decision is for the legislature
-a way of grounding judicial interpretation in an objective manner
-it is a subjective choice by a judge to follow the originalism paradigm
· Focuses on the text of the constitution
· The reading of the document as a whole
· looks at structure, omission…
· Uniform interpretation of items listed in different areas
· Not on words in isolated areas (out of context)
-creates uniformity in interpretation by limiting to the text
-mitigates the counter majoritarian problem
-language changes over time
· A form of originalism interested in the original intent of the framers
· Applies a broader interpretation to protect the rights of minorities
-more progressive results
-no limits on judicial interpretation
· In reality, the idea of truly objective neutral interpretation of Constitution empty of Justices’ experience and values is only a theory (Psychologically impossible).
· Congressional limits on the judicial authority
i. The Exceptions Clause:
· Supreme Court jurisdiction exists subject to exceptions and regulations as congress shall make. Exception clause:
under article 3, congress can limit the supreme courts power to hear appeals
· congress must remove the whole class of cases and not just a particular case
-(congress cannot use this to overrule a specific case)
· congress may not use this power to violate the constitution
· congress may not completely withdraw all power of appellate review
the conflict and limitation on judicial review is a check of the Supreme Court’s power
· does NOT affect areas of original jurisdiction
actions in which states are parties
actions involving ambassadors
· McCardle case: any exception enforced by Congress is allowed. However, in that case, Supreme Court’s full authorization is not taken which leaves the question open whether Congress could close all doors to Supreme Court.
McCardle: after the civil war, while in a state that was under marshal law, when a party was arrested for the publication of a libelous work, and filed a writ of habeas corpus, the court held that the congressional repealing of the statute that allowed for such a claim was permissible because while the constitution confers appellate jurisdiction to the Supreme Court, it is limited to such exceptions and regulations as Congress shall make.
· There is broad authority for Congress to make exceptions for Sup Court’s app jx.
· Fed courts must first decide whether a statute restricting jx is constitutional before it can be applied to deny review in a particular case. (acc. to Marbury)
· Some argue that the term “exceptions” modifies the word “fact” to address the framers’ concern about SC’s ability to overturn fact-finding by lower courts, esp when done by juries.
· Inferior courts:
· Acc to Art III, there is no obligation for Congress to create lower federal courts. Since Congress has power to create the lower courts, it has full authority on their jx.
· Art I, Sec 8, Cl. 9 grants Congress the authority “to constitute Tribunals inferior to the supreme court.” -> regulating the lower court’s subject matter jx would seem to be a necessary and proper means to constituting those courts.
· Exceptions clause is limited by separation of powers.
· Separation of powers constraints on Congress
· Klein case: Congress can’t prescribe a rule of decision in a pending case. It can’t go so far to regulate what Sup Court should decide -> the se
inability to compete on equal footing) Then, whether he would have ultimately got it or not is irrelevant. One relevant issue, however, is if P plans to compete in the future. (Bakke)
· e.g. if Congress is enacting a law that provides private right of action, State might argue that the law invades an area traditionally w/in the province of state protection, but such an incursion, in itself, is probably not the type of injury that is sufficiently “concrete and particularized” to be cognizable under Art. III.
· Did D cause the harm?
· The injury has to be fairly traceable to the challenged act of the D
· Not the result of the independent action of some 3rd party not before the court
· .. such that it can be concluded that limited D will remedy the injury? (What P is asking for is likely to redress his harm.)
You look at standing in regards to the relief requested (injunction or damages).
§ One might have standing to seek damages which doesn’t automatically entitle him to seek injunction for prospective relief.
· Lujan case: Congress cannot create injury-in-fact statutes if one doesn’t have standing under Art III.
· Courts cannot create hypothetical standing and resolve on merits because standing is a jx issue and if there is no authority to speak, court can’t jump to underlying merits.
· Injury / causation / Redressability cases:
Allen v. Wright: when a group of black parents brought a class action claiming that tax exemptions for racially discriminatory private schools deprived their children’s opportunity to go to desegregated schools, the court dismissed the case on the lack of standing-the court acknowledge the injury of the inability to go to desegregated schools, but found a problem with the causation as it is uncertain how many schools were being enabled by such tax exemptions, and the redressability is a problem because there is no evidence that the withdrawal of tax exemptions would cause the schools to stop discriminating. (causation too attenuated).
City of LA v. Lyons: when a party who was injured by a chokehold that was applied to him by a LA police officer brought an action claiming that an unwritten policy of the LAPD was to use chokeholds, and sought injunctive relief against such future conduct, the Supreme Court dismissed the case for lack of standing. They found that there was no injury as there was no guarantee that the p would be subject to chokeholds in the future, they found that there was no redressability, because it was already the policy of the LAPD not to use such devices, and an injunction would not for sure prevent this.
U.S. v. Hays: when a party challenged a LA racial gerrymandering policy the court found that he did not have standing because he did not suffer a personal injury as he personally did not live within a gerrymandered district, thus was not subjected to any racial classification.
Linda v. Richard: when a party challenged the constitutionality of a policy that enforced child support orders for legitimate children and NOT FOR illegitimate children, the Court held that p did not have standing for lack of redressability as the jailing of the “deadbeat dad” would not necessarily result in the payment of support due.
Warth v. Seldin: when a group of impoverished persons challenged zoning laws that made low income housing unavailable