Borrows ConLaw Fall 2012 University of Minnesota
Part I- History and Interpretation
Originalism
1. Approach to interpretation that accords dispositive weight to the original meaning of the Constitution.
2. Must mean today what it meant when it was adopted
3. Properly recognizes the Constitution’s status as law
4. Necessary to preserve democratic values
5. Constrains the ability of judges to impose their own personal views
Non-Originalismn
1. “the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.”
2. Believe the Constitution’s meaning today is not always the meaning that it had when it was ratified
3. Original meaning of a provision, expressed at a very high level of generality, provides guidance for ascertaining the relevant constitutional rule.
Historical
1. Resort to the intentions of the framers and ratifiers
2. Look towards public meaning of words/clauses at time of ratification
Textual
1. Look towards the actual text of the Constitution
Doctrinal
1. The argument which lawyers are most familiar with.
2. Much of constitutional law
3. The case law of precedent on which we rely
4. “Play the game according to the rules.”
Structural
1. Dependent on rather simple inferences from the structures of the Constitution and the relationships they mandate
2. Refers to the relationships that these structures, confirmed in the text, mandate.
Prudential
1. Quite recently became legitimate
2. Argument about costs and benefits
3. Looks at the practicality of a potential holding
4. Used in Dormant Commerce Clause cases
Ethical
1. Often times most elusive
2. Great example is Brown v. Board of Education-What we would like to be
or see ourselves as being
x. Must figure out how to play all these games or sets of rules
1. Every question has an upwards, downwards, forward, and backwards context
Part II. Judicial Power
Jurisdiction of the Supreme Court
a) Art. III § 2 gives SCOTUS original jurisdiction “in all cases affecting ambassadors, other public ministers and consuls and those in which a state shall be party”.
b) Congress cannot adjust SC original jurisdiction Marbury.
2) Judicial Review extends SCOTUS authority to review and invalidate state laws that are inconsistent with the constitution. Marbury (1803).
a) Marbury is Foundation of the political question doctrine
b) “This is a government of laws, not men” – Marbury has a right to his commission which law affords him a right. “every right has a remedy”.
3) SCOTUS has appellate jurisdiction in all other cases where it doesn’t have original jurisdiction (Art. III § 2), subject to Congress exceptions and regulations. Martin v. Hunters Lessee (1816).
4) In Cohen Marshall criticizes his own opinion in Marbury by saying that there are not mutually exclusive jurisdictions.
5) Judicial review binding on all state officers because SCOTUS interpretation is the “Supreme Law of the Land” (Supremacy Clause) and Dickerson (2000) applies Judicial review to Federal Officers. Cooper (1958)
a) State executives are subject to the Supremacy Clause Art. VI. Cl. 2.
6) Replacing judicial decisions:
a) In Dickerson (2000) the court decided the legislature cannot reinterpret Miranda decision concluding that “Congress may not legislatively supercede our decisions interpreting and applying the Constitution” -> Uniformity and Finality.
b) Amendments replace/change Court decisions like Dred Scott w/ 14th.
c) Replacing Justices
The Power of Congress to Control Certain Aspects of Federal Court Jurisdiction (Federalism)
McCardle (1869) (Military tribunal of McCardle, who criticized Civil War reconstruction leaders in south)
Holding: Congress has the power to expressly repeal and explicitly grant appellate jurisdiction of the supreme court (by and through statute). This is within the limits of Art III § 2 Cl. 2 “Exceptions Clause”. This allows courts to be selective. SCOTUS has never decided if Congress can deprive SCOTUS of jurisdiction of a particular federal question not granted by statute.
Congress has authority to deprive lower federal courts of jurisdiction Sheldon v. Sil (1850)
Obstacles to Judicial Power – Limitations on Judicial Review
Standing, Political Question, Case or Controversey (mootness & ripeness), Advisory opinions.
Standing
Lujan (1992) brings in an implied separation of powers argument against case and controversy under Art. III b/c Congress can create citizen suits, but the litigant must still have some injury or actual harm to redress (Congress is limited by Art. III standing reqs.)
Allen v. Wright (1984) (parents of blacks)
1) Injury in fact: a legally protected interest is a) concrete and particularized, and b) actual or imminent more than a ‘generalized grievance’ -> a person must be “personally denied equal treatment”
a. Lujan says a “cognizant interest” is sufficient to show injury in fact
2) Causal Relationship “fairly traceable” between the injury and the challenged conduct. The link must not be unduly attenuated or speculative.
a. Lujan says an intent to enter into a causal relationship is insufficient
3) Redressability the injury must be redressable by a favorable decision
Allen Dissent (Stevens, Blackmun): causation is ambiguous and could be found in most cases.
Lujan Dissent: Blackmun, O’Connor – Intent to be among the injured can satisfy injury in fact/causality. A requirement of detailed plans is an empty formality. Invokes “actual or imminent injury” standard.
Non-Justiciable Political Question
The concept of political question go
n affairs is a political question because there is no constitutional provision governing the termination of treaties, and it is thus left to political standards
· Partial Dissent Blackmun/White: a dispute between coequal branches of gov’t which have resources to protect their interests, unlike private parties still deserves oral argument and plenary consideration.
· Dissent Brennan: the political question doctrine doesn’t pertain when a court is faced with the antecedent question of whether a particular branch has been constitutionally granted certain powers.
Requirement of Case of Controversy under Art. III. § 2
Muskrat v. United States (1911)
· The court lacks authority to offer advisory opinions about proper resolution of abstract legal questions divorced from an actual dispute between adverse parties.
· Case and Controversy: an action filed in federal court must be filed and litigated at a time that ensures that the case or controversy between the parties is sufficiently live and that there be litigants with adverse interests.
o Ripe: not yet an actual controversy. π must have already been harmed, or it is otherwise premature.
o Moot: parties have no meaningful connection or concrete stake in resolution.
o Advisory Opinions: court won’t answer abstract legal questions divorced from an actual dispute between adverse parties.
o Exception: when there is a high likelihood a future occurrence would similarly evade judicial review (roe v. wade) or cases where the Δ is likely to repeat the behavior.
More on Advisory Opinions: some states like Mass., Canadian SC, Little Traverse Bay Band of Odawa show how reliant on case/controversey text/doctrine the US really is.
Quebec Succession Reference Case (1998)
· Canada isn’t tied down by the strict separation of powers or the Muskrat “case” or “controversy” doctrine. The Canadian constitution doesn’t insist on these things, but there is a desire to maintain independence, efficiency, and legitimacy. Holdings must be final and binding, not merely advisory.
· The Canadian Supreme Court may decline to issue an opinion on a pragmatic basis. Especially if:
o 1) question is too imprecise or ambiguous
o 2) the parties haven’t provided sufficient information to allow for a complete or accurate answer
Little Traverse Bay Band of Odawa Indians
· The judiciaries function as a separate branch would fail if it provided advisory opinions because it would be like being private counsel to the Tribal Counsel
· Mootness is a common problem of advisory opinions – a reason for case or controversy.
