OVERVIEW
I. U.S. CONSITUTION (1788): The U.S. Constitution is a “blueprint” for the American system of government.
A. Three major functions…
1. Creates a “national government,”
a. Three coequal branches: (1) judicial, (2) legislative, and (3) executive.
2. Allocates federal national power between the federal government and the states: “federalism,”
a. Federalism results in two governments, national and state, with jurisdiction over the same territory.
3. Limits government power and protects individual rights.
a. Note: Constitutional ONLY protects individual rights against government action.
i. One Exception: 13th amendment (slavery).
B. The U.S. Constitution is unique because it is difficult to amend…
1. Article V. Two methods to amend the Constitution…
a. Requires 2/3 concurrence from both houses of Congress (Senate and House of Representatives), OR
b. Ratification by 3/4 of the states (never occurred).
2. Note: Judicial review is the most significant vehicle in which the Constitution changes.
II. Enumerated Powers v. Separation of Powers
A. Enumerated Powers à Federalism [vertical]
1. Enumerated powers = congressional powers specifically enumerated by the Constitution. i.e. Art.1 §8.
B. Separation of Powers à Powers between the co-equal branches [horizontal]
1. Separation of powers = division of powers between the legislative, executive, and judicial branches.
THE FEDERAL JUDICIAL POWER
I. OVERVIEW
A. The study on federal judicial power is a study on the separation of powers AND federalism.
II. Article III. Confers Judicial Power to the Supreme Court.
A. Section 1. Section one vests the judicial power of the U.S. in the Supreme Court AND inferior courts if Congress chooses to establish them. It also mandates that the judges serve life terms and their compensation may not be diminished as long as they abide by good behavior.
B. Section 2. Section two provides that the Supreme Court has…
1. original jurisdiction as to all cases (1) affecting ambassadors, other public ministers, and consuls, (2) admiralty and maritime jurisdiction, (3) controversies to which the United States shall be a party, (4) controversies between two or more states, (5) controversies between a state and citizens of another state [refer to 11th amendment], (6) controversies between citizens of different states [diversity], (7) controversies between citizens of the same state claiming lands under grants of different states, and (8) controversies between a state and citizens of that state, AND (9) controversies between a state and foreign states, citizens, or subjects.
2. appellate jurisdiction as to ALL other cases, “both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”
III. Judicial Review = Federal judiciary’s power to review legislative, executive, state, and local government actions, and determine if those actions are constitutional based on its interpretation of the Constitution.
A. Marbury v. Madison (U.S. 1803) [Marshall]
1. Landmark case that established
a. (1) Constitution was the ceiling of the Supreme Court jurisdiction.
b. (2) Federal courts have authority for judicial review of actions of the executive and legislative branches of government.
c. (3) Where the executive actions are merely ministerial (based on the instructions of law), i.e. actions that infringe on individual rights, federal courts have the authority for judicial review. However, where executive actions are discretionary (based on judgment or skill), the only check is the political process (subject to the political question doctrine).
2. Holding: The court found the Judiciary Act of 1789, which purportedly gave federal courts power to exercise mandamus on original jurisdiction even though it was not among the items enumerated in Art III §2 of the Constitution, unconstitutional.
3. Quote: “it is emphatically the province and duty of the judicial department to say what the law is.”
a. Broad Interpretation: (1) judicial supremacy // Cooper v. Aaron; (2) ultimate interpreter of the Constitution // Powell v. McCormick.
b. Narrow Interpretation: Judiciary may invalidate state or federal statute if repugnant to constitution; the power of judicial review may only be exercised if it is incidental to its power to decide a case.
B. Martin v. Hunter Lesee (1916) [Story] and Cohens v. Virginia (1821) [Marshall]
1. These cases established federal courts’ authority for judicial review of state and local actions.
a. Ensures uniform interpretation of federal law. //Story.
i. Justice Holmes: Judicial review of state and local actions under Martin and Cohens is more important than judicial review of legislative and executive actions because the union would be imperiled if there were no uniformity of state laws.
IV. LIMITS on Judicial Review
A. Interpretive Limits= limits resulting from the various styles of judicial interpretation.
1. Originalism v. Non-originalism
a. Originalists: Narrowly subscribe to the Constitution.
b. Non-Originalists: Substantial discretion. Constitution cannot be interpreted within the four corners of the document.
2. Judicial Styles
ß Living Constitution (Realist) ———————————————— Textualism / Originalism (Formalist)à
a. Textualism us a formalist theory of law that looks to the plain meaning of the text itself.
i. This is an objective approach that does NOT take history or framers’ intent into account.
A. It is the law that governs, not the intent. //i.e. Scalia.
b. Original Intentframer’s intent at the time the Constitution was adopted.
i. Specific intent of the Framers (extreme originalism)
ii. General intent of the Framers (moderate originalism)
iii. Original context
c. Traditionalism is a theory of law that looks to social tradition by legal analysis.
i. i.e. traditionalists would probably permit the individual right to bear arms.
d. Neutral Process: is a theory that favors esoteric decision making; courts should not get into the substantive area but improving the process of government.
e. Natural Law is a theory of law that believes laws should be enacted to match the unchangeable law of nature which governs us; it is social contract thinking. This area of law very formalistic.
f. Living Constitution (contemporary thinking/ fundamental values) is a contemporary or realist theory of law in which interpretations can evolve with society to deal with the changing conditions that may not have existed when the Constitution was adopted.
i. It looks to fundamental values (Moral Philosophy):Spike Lee: We ought to do the right thing. What is the right thing?
ii. i.e. Brennan
3. Judiciary Uses a Mixture
a. In most cases, judges will use a mixture of these methods. So, we need to equip ourselves to understand them all. Rather than looking at the black-letter law, use these methods to critique an analysis process or a judicial decision.
4. i.e. 2nd Amendment. “A well regulated Militia, being necessary to the security of the free State, the right of the people to keep and bear Arms, shall not be infringed.”
a. U.S. v. Emerson (5th Cir. 2001) [Garwood] adopted the traditional individual rights model and found that the Constitution gives individuals the right to bear arms.
i. Reasoning: Court looked beyond the text into the intent of the framers, the history, and contemporary social concerns. During the time of the Boston Tea Party in 1773, citizens were considered a part of the militia. Madison intended to include that right in the original Constitution. The later adopted of it into the Bill of Rights is a suggestion that it is an individual right. Founders emphasized the right to bear arms as protection against government tyranny.
b. Silveira v. Lockyer (9th Cir. 2002) [Reinhardt] adopted the collective rights model and found Constitution ONLY gives states’ militia the right to bear arms, not private individuals.
i. Reasoning: Court looked to the ordinary meaning of the words in the constitution. Found the ordinary meaning of the word militia is not ambiguous and means the state military entity. i.e. the national guard. Found the word to keep and bear arms is a bit ambiguous AND does not ensure it means to own arms. The two phrases read together supports the collective rights models.
B. Congressional Limits = congress’s constitutional ability to restrict federal court appellate jurisdiction.
1. Article III §2 [2]. Exceptions and Regulations Clause. Where Article III §2 does not confer original jurisdiction to the Supreme Court, it “has appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”
a. The Exceptions and Regulations Clause only confers Congress the power to limit the judiciary’s appellate jurisdiction. It does not give Congress the power to limit the judiciary’s original jurisdiction.
2. Three Views on Congressional Limits
a. View 1. Congress has BRO
the total population in U.S.
3. [Scalia + 3 judges] Political gerrymandering cases are non-justiciable because there are NO judicially discoverable or manageable standards.
4. Kennedy, alone, concurred with Scalia in dismissing the case BUT said while there are currently no standards at the time, such standards may later emerge.
B. League of United Latin American Citizens v. Perry (2006) P23
1. Court took no position on whether political gerrymandering is a justiciable issue but the standard proposed, a presumption of unconstitutionality against mid-decade redistricting is not manageable standard.
2. Current Positions of Justices
a. Alito, Roberts have not taken a position.
b. Breyer, Ginsburg, Stevens, Souter = justiciable
c. Kennedy: Maybe if there is a standard.
d. Thomas, Scalia: non-justiciable.
iii. PrudentialConsiderations: Are there any prudential considerations?
A. Can the issue be decided without non-judicial discretion?
B. Would a resolution be disrespectful to the coordinate branches of government?
C. Is there an unusual need for unquestioning adherence to a political decision already made?
D. Is there a potential of embarrassment of multifarious pronouncements by various departments on the question (since other branches could also interpret the Constitution)?
ii. ASK which one: The first two elements are MORE important because they are restraints rather than abdications on judicial review.
B. THREE important areas where the PQ Doctrine has been examined
1. Challenges to Congress’s exercise of discretionary authority to its elections.
a. PQ rejected. Courts can hear cases where Congress unseated members of Congress outside its discretionary authority; Congress only has discretionary authority to unseat members based on their qualifications.
i. i.e. If Congress decided to unseat Senator Craig because he was not an Idaho citizen, then courts cannot exercise judicial review over it. However, if Congress decided to unseat Senator Craig because he was gay, then the courts CAN exercise judicial review over it.
b. PQ Doctrine does NOT BAR the federal courts from deciding this issue because there is no textually demonstrable constitutional commitment of the issue to Congress. In the court’s interpretation of Art. I § 5, “Each house shall be the Judge of the Elections, Returns, and Qualifications of its own members, and a Majority of each shall constitute a Quorum to do Business,” court found the clause only gives Congress the discretionary authority to judge the qualifications enumerated under the Constitution, NOT to unseat members when the qualifications enumerated under the Constitution are met. //Powell v. McCormack (1969) [Warren].
2. Challenges to the President’s conduct of foreign policy and military.
a. PQ generally applied.
b. PQ BARS federal courts in deciding roles of president and senate in the termination of treaties. //Goldwater v. Carter (1979) [Rehnquist].
i. Rehnquist’s majority argued the issue was non-justiciable PQ b/c it involved a foreign policy decision of the President. Rehnquist appeared to believe all foreign policy matters are PQs.
ii. Powell’s concurrence argued the issue “might” be non-justiciable PQ b/c of prudential reasons: courts should avoid encouraging litigation involving the division of power between the legislative and executive branches.
iii. Brennan’s concurrence and dissent argued that the issue was non-justiciable because it was not ripe, not because PQ. It was not ripe because Congress did not challenge president’s decision to rescind Taiwan treaty. However, if ripe, it
