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Political & Civil Rights
Temple University School of Law
Carter, William M. "Chip"


A. Three Primary Limits on the Federal Judicial Power.
1. Interpretative limits
· Originalism– judges deciding const issues should confine themselves to enforcing norms that are stated or clearly implicit in the written const. SCOTUS is justified in protecting constitutional rights only if they are clearly stated in the text or intended by the framers. The Const. should evolve soley by amendment. If the C is silent, it is for the legislature to decide the law.
o Strict textualist-one version–but, only men qualified to be president or vice pres?
o General Intent-where do you look to find the meaning? Trying to find original meaning. Willing to refer to sources outside the text. Looking for principles. What values are they seeking to protect? Eg first amendment
o General Purpose-what was the purpose of the people who drafted the document?
o Original meaning-What did the words mean at the time? (Scalia)
· Benefits: predictable, limits the role of the judiciary. Job of judge is to figure out what provision was intended to mean.
· Minuses–only man should become president
e.g. Scalia (faint-hearted); will only stress his orignalists views so far.

o Non-Originalism–view that courts should go beyond that set of references and enforce norms that cannot be discovered w/I the four corners of the document. Review is essential so the Con does not remain static and can evolve to meet the needs of a society that is advancing technologically and morally. Start with the text, but will go beyond words/original meaning b/c they believe Con evolves.
o Court can interpret the Constittuion to protect rights not expressly stated.
o Benefits: adaptable; benefits process cannot evolve enough to protect minority rights. Rights shouldn’t be limited to those who were empowered when the Constitution was written.
But: how far should one deviate from the original meaning?
Predictability: If the law is constantly changing, what is the law?
• Carter: What happens when you have a new justice that believes the methodology used to establish precedent was simply incorrect? Should precedent change, or should stare decisis rule? Any time public believes USC has acted unjustly or incorrectly, it undermines the power of the Court.
2. Congressional limits
3. Justiciability

B. The Second Amendment as an Example
Text of the 2d A: 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.
a. Individual Right: The 2d A safeguards a right of individuals to keep and own firearms.
b. Collective Right: It means only that Congress cannot regulate firearms in a manner that keeps state governments from protecting themselves. Militant federalism – state government right to militia

C. HELLER (Supplement, 1-16.)
How does Scalia interpret the 2nd amendment?
1. Look to the text.
· Words and phrases were used in their normal and ordinary meaning, not technical.
o Look elsewhere in the constitution. “the right of the people” referred to individual rights, not collective.
o Look to a 1770’s dictionary.
2. Look to founding era sources to see if they used the words/phrase the way the dictionary defined it.
· State constitutions are most relevant. Is the interpretation confirmed by analogous amendments in state constitutions?
· Look to historical background if it’s believed that the amendment codifies a pre-existing right.
3. Look to the history of the right’s interpretation.
· Then ask whether any precedents foreclose the adoption of the original understanding.

When, if ever, may the President act when there is neither express constitutional or statutory authority? The debate over this question began in the earliest days of this nation.
• Hamilton viewpoint: The difference in working of Articles I and II reveals the framers’ intention to create inherent presidential powers. Because Article II does not limit the President to powers “herein granted” as does Article I, he argued that the President has authority not specifically delineated.
• Madison viewpoint: He argued the President has no powers that are not enumerated in Article II and indeed, such unenumerated authority would be inconsistent with a Constitution creating a government of such limited authority.
• Carter: Congress, of course, has the necessary and proper clause. But that’s textual, not inherent. The judiciary’s inherent power comes from Marbury v. Madison – the judiciary has the power to say what the law is. Courts are very accepting of their own inherent power, despite skepticism of others’.
• Unitary Executive Theory: This is the idea that when something is in the purview of the executive, it belongs to it and it alone and the efforts of other branches to control are unconstitutional. i.e. the position that war-making, not war-declaring, is solely in the power of the executive.

Steel Seizure breakdown of presidential power from Justice Jackson’s concurring opinion:
1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum. His action here is supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon those who attack him.
2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely on his own independent powers, but there is a ‘zone of twilight’ in which he and Congress may have concurrent authority. (Congress’s silence may be taken as approval or disapproval, depending.)
3. When the president takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can only rely on his own constitutional powers minus any constitutional powers of Congress. (Judicial scrutiny at greatest level)
D. Presidential Power and the War on Terrorism
Two key issues arising out of Sept. 11: When may the executive detain American enemy combatants, and when, if at all, are military tribunals constitutional?
In June 2004, the Supreme Court decided three major cases concerning civil liberties and the war on terrorism. Two were resolved on non-constitutional grounds:
• In Rasul, the Supreme Court held that detainees had a right to have their habeas corpus petition heard in a federal cour

– but finds an unconstitutional suspension of habeas.
• The dissent distinguishes Eisentrager/V-U by saying those cases apply to individual rights outside U.S. borders, and habeas is not an individual right – it’s a limitation on the power of Congress, and that’s why it is in Article I. This is a structural argument.
• The next question is whether the writ applies to aliens abroad – and says yes.
• Dissent says there was no adequate alternative remedy (MCA deviates far from habeas proceeding) and the requirements of the Suspension Clause, which requires rebellion or insurrection, were not met.
• (Congress has suspended writ of habeas corpus only four times.)


o The protection of the Bill of Rights protects individuals from constitutional violations by governments (State and Federal) but not by private actors. The Constitution’s protections of individual liberties and its requirement for equal protection apply only to the government. Private conduct generally does not have to comply with the Constitution
· The state action doctrine is that the provisions of the Fourteenth Amendment only apply to state actors (state governments and their subsidiaries, including local governments). eg governor, attorney general, or some other state actor. You can’t sue the Ford Motor Company for violating substantive due process. There are provisions of statutory law that apply to the private sector, but in order to prevail on a Fourteenth Amendment claim, you must be suing the government. That’s also true of any provision of the Bill of Rights as incorporated through the Fourteenth Amendment.
Carter: The state action doctrine is the idea when the government infringes a right, there will be redress. The threshold issue in every constitutional case is whether there is state action. If so, that gets you a constitutional cause of action, but it doesn’t mean you win.
The Civil Rights Cases, U.S. 1883, Justice Bradley
FACTS: The cases are based on the Civil Rights Act of 1875, which promise full and equal enjoyment of accommodations and facilities of inns, public conveyances, theaters, and other public places.

ISSUE: Does Section 5 of the 14th A grant Congress the power to make such a law?
HOLDING: Section 5 of the Amendment invests Congress with power to enforce it by appropriate legislation. It does not authorize Congress to create a code of municipal law for the regulation of private rights. This law steps into the domain of local jurisprudence.