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Constitutional Law I
University of California, Hastings School of Law
Paul, Joel Richard

Constitutional Law – Prof. Paul Spring 2013

Article III Judicial Power

I. Methods of Interpretation

A. Originalism

· Non-interpretive – Textual/Literal Interpretation

· Original Intent – evidenced by the debates of framers; or contemporary practices at the time of ratification

· Two arguments support this method

o Very nature of interpreting a document requires that its meaning be limited to the specific text and its framers’ intention

o Desirable to constrain the power of unelected judges in a democratic society (removes political accountability)

· Believe that the Constitution should only evolve by Amendment

· DC v Heller (2008) – Scalia’s textual analysis

o “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.”

o Prefatory clause does not limit the operative clause but merely announces a purpose – militia was already in existence

o Operative clause

§ “’free State” – refers to the polity of individual states since it is used throughout the Constitution in this manner

§ “right of the people” – strong presumption of individual rights belonging to all the people

§ “To keep and bear” – plain meaning was to have weapons; Dissent claims it is an idiom for a warfare term

§ “arms” – questionable if original intent was arms of the times (muskets) or weapons necessary for military

o Framers feared a Federal standing army; several state constitutions incorporated this language even in the absence of the prefatory clause

o Intent of the 2nd Amendment was to protect sovereignty of the states to defend against an invasion of Federal gov’t; repelling invasions and insurrections; renders standing army unnecessary; resists tyranny

o Holding the DC ban on handguns as an unconstitutional violation of the 2nd Amendment

B. Dynamic Interpretation – Non-originalism

· Three arguments support this method

o It is desirable to have the Constitution evolve by interpretation and not only by amendment – necessary to meet the changing needs of society

§ The framers of the 14th Amendment would have approved of racial segregation in schools and that it did not apply to women/gender discrimination and even that it would be unconstitutional to elect a female President (Const. uses “he”), but this is not how society views these issues

o There is not an unambiguous, knowable framers’ intent that can be found to resolve constitutional questions

§ There is not a single group of drafters and framers making determination of intent impossible and even if one identified a group, the historical materials are too incomplete to support authoritative conclusions

o Claim that the framers’ intent was this approach

· Doctrinal/Precedent

o Authority of law; stability of expectations

o Generates neutral principles that can apply for many cases

o Problematic in that rules can be changed by facts; doctrine does not always apply the facts of the case; results in problems with unanticipated developments

· Practice Subsequent to Ratification

· Responsive Interpretations

o Structural: inferring rules from relations between the three branches

o Ethical: derives rules from values in the Constitution; how the gov’t relates to the people; the will of the people

o Prudential: Cost-benefit analysis; efficiency in application of a policy; case-by-case approach; can weigh two interests at stake (free speech v. war); arguably not the job of the judiciary

o Purposive: Most expansive approach that envisions constitutional powers created as needed for achieving the objectives set forth in the Constitution; flexibility with changing times; Constitution meant to endure

II. The Authority for Judicial Review

A. Marbury v Madison (1803)

1. Issue: Whether Marbury as a right to the commission; Whether the laws afford Marbury a remedy; Whether the Supreme Court can issue this remedy

2. Holding that Marbury has a right to the commission as a matter of law; there is a remedy as a matter of law; but denies relief due to lack of Original Jurisdiction based on the belief in strong constitutional supremacy and that the Judiciary Act of 1789 that granted mandamus power as original jurisdiction was unconstitutional since granted power beyond situations enumerated in the Constitution

3. Establishes 6 new pricincples

o New property right: gov’t confers a benefit and people have a right to go to court to enforce it

o Raises some questions of justiciability – no judicial review over political questions

§ Counter-majoritarian Principle: The executive and legislative branches are answerable to the people and the unelected judiciary appointed indefinitely need to be deferential to this in the setting of political questions

§ Marshall: “The province of the court is, solely, to decide the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion.”

§ Counter-arguments:

· Judicial review can be seen as a process that promotes democracy because these constraints were adopted by the people in a time of heightened democratic awareness

· The Court is actually trying to protect the rights of those who are not fully able to participate in the political process

· The Court is actually trying to improve democracy by protecting disadvantaged groups

· Supported by the idea that that the so-called democratic process is filled with democratic infirmaties

o Establishes principle that Court can review executive officers

o Art. III limits the Court’s Original Jurisdiction

§ Congress may NOT add to Original Jurisdiction; Judiciary Act of 1789 exceeded this and therefore that section unconstitutional

o Court has personal jurisdiction of federal officers

o Principle that Court may strike down laws contrary to the Constitution

III. Can the Supreme Court declare laws unconstitutional? (Article III is silent on this issue – see Marbury)

A. Constitution imposes limits on governmental powers and that these limits are meaningless unless subject to judicial enforcement

B. Inherent to the judicial role to decide the constitutionality of the laws that it applies

o Counter: Court can interpret and apply laws without deciding its constitutionality (like other countries)

C. Court’s authority to decide “cases” arising under the Constitution implied to the power to declare unconstitutional laws conflicting with the basic legal charter

o Counter: Even without this power, Court would still be effective in deciding “cases”

D. Judges take an oath of office and it would violate that oath if they enforced unconstitutional laws

E. Article VI makes the Constitution “the supreme law of the land”

o Counter: Just because it is, this does not give the Court the power to invalidate laws; could just mean that Congress should only enact laws that are authorized by the Constitution

taxation – power to tax is the power to destroy; States are limited to taxing the people represented in the State gov’t because taking a Federal Bank would amount to taxing the entire nation whom do not have legislative representation

B. Counter-Majoritarian Difficulty

1. Constitution is not democratic

o Prevents popular will from doing whatever it wants to do; binds the hands of the people

2. Courts are just umpires (calling “balls & strikes”)

o Weak argument because judge’s have opinions; in theory simply read laws and enforce what they say

3. Courts respond to political circumstances

o Prof. Paul finds this unpersuasive but basically states the while the courts follow the populous , they lag in time

4. Representation Reinforcement

o Courts function is to strike down laws when the laws interfere with the legislative process itself

o Concept the judiciary is responsible for protecting the rights of the people that would otherwise be limited by the electoral process (e.g. slavery)

VI. Cases & Controversies

A. The question of whether Congress can limit the jurisdiction of the Supreme Court is unanswered, but assumes that if possible that some Federal court would have the ability to hear the case, otherwise a due process issue arises

1. Arguments in favor

o Textual – Art. III Section 2 – “The supreme court shall have appellate jurisdiction, both as to Law and Fact, with such exceptions, and under such Regulations as the Congress shall make”

o Framers intended to Congress to check judicial branch

2. Arguments against

o Textual – “exceptions” is meant to modify “facts” such that the Supreme court cannot over-turn fact-finding

o Even if granted the authority to limit judicial powers, still cannot violate other provisions of the Constitution

B. Ex Parte McCardle (1869)

1. Facts: Mississippi newspaper editor jailed in military jail for printing libelous articles; filed writ of habeus corpus under the Reconstruction Act of 1867 which gave the Supreme Court appellate jurisdiction in these type of cases; while deliberating the merits of the case, Congress repealed this portion of the Act giving the Court jurisdiction

2. Issue: Whether Congress has the authority to repeal jurisdiction in cases where it had previously granted jurisdiction

3. Holding that although appellate jurisdiction for the Supreme Court is not derived from acts of Congress, but from the Constitution; Congress has the power to make exceptions and regulations regarding the Court’s appellate jurisdiction

4. Notably that Court distinguishes that the repeal only affects the powers conferred by the Act and not all power for appellate review; revoked only cases of habeus corpus on appeal from Circuit courts under the Act