Federal Judicial Power
Articles I-III are about allocation of power. Constitution does three basic things:
1. Establishes a national government, and within that it allocates the power between the legislative branch (Art. I), executive (Art. II) and judicial (Art. III).
2. Deals with the allocation of power between the state governments and the national government.
3. Places some limits on government: it creates some individual rights.
The Authority for Judicial Review
– All laws repugnant to the constitution are void and it is the duty of the courts to uphold the constitution. Marbury v. Madison.
– Jurisdiction of the court (USC Art III §2): In all cases affecting ambassadors, other public ministers and counsels, and those which the state shall be a party, the Supreme Court shall have original jurisdiction. In all other cases, the court shall have appellate jurisdiction both to law and fact, with such exceptions and regulations as congress shall make.
– Art III §1 allows congress to establish inferior courts
– Supremacy Clause (USC Art VI §2): This constitution and the laws of the United States that shall be made in pursuance thereof shall be the supreme law of the land; and the judges in every state shall be bound thereby, and any thing in the constitution or laws of any state to the contrary notwithstanding.
– The Supreme Court can also review the decisions of state courts. They can review state decisions (civil or criminal) when the state court decides a “federal question”.
– Judicial review can be very anti-majoritarian: court (9 unelected people) can strike down a statute passed by a much larger body of elected individuals. Anti-democratic ruling in that it vests too much power in the hands of a few non-elected people.
Limits on the Federal Judicial Power
Limits on the Court’s Broad Power
1. Interpretive. The limit on the Court is the Constitution itself. Court cannot make law, only interpret.
2. Congressional. Article III creates, in effect, the US Supreme Court. Section 2, Clause 2: “…In all the other Cases before mentioned, 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.”
3. Prudential (Justiciability). Self-imposed limitation. The Court itself has adopted some rules about cases it will not hear. Court has in some sense stepped back and recognized that some things are best left to the other branches of government.
4. Standard of Review. Amount of deference given to statute under review (a) Rational Basis Review or (b) Strict Scrutiny
Originalism vs. Non-Originalism
a. Originalism: Court should find a right to exist only if it is expressly stated in the text or was clearly intended by its framers. Where Constitution is silent, the legislature (unrestrained by the Court) should decide the law.
b. Non-Originalism: Courts should go beyond that set of references and enforce norms that cannot be discovered within the four corners of the document. Constitution does not remain static and must evolve to meet the needs of a society that is advancing technologically and logically and morally.
Although the Supreme Court derives its appellate jurisdiction from the Constitution, the Constitution also gives Congress the express power to make exceptions to that appellate jurisdiction. Ex Parte McCardle (1868).
Federal Legislative Power
What is the extent of federal power versus the states’ power? The starting point is the enumeration of powers in the Constitution to the federal government, and the idea that if it’s not enumerated there, then it’s left to the States. How is power allocated between the federal turf and the States’ turf? And when there are turf battles between those turfs, who decides those battles?
· Judiciary.
· Political (legislative) process. Each state is represented by national legislative bodies, so to leave it to them to decide is, in a sense, representing the States.
A bill/action is unconstitutional if (1) beyond the power of Congress or (2) in within the power of Congress but conflicts with some other power.
Where would you look, specifically, for the powers of Co
ugh changes through different eras.
Gibbons v. Ogden (1824)— Gibbons represents the establishment of groundwork for the notion that Congress has a very broad power when operating under the commerce clause. NY gave monopoly to Fulton & Livingston for operating steamboats in NY waters. Gibbons claimed he had federal license to operate his steamboat, and that conflicted with NY’s given monopoly. Court examines “commerce” as being traffic and commercial intercourse between nations and parts of nations. Operation of boats is navigation, and commerce includes navigation. Court defines Congress’ power to regulate commerce as relating to actions “among” states. However, actions that occur solely within a state but that affect other states, may also be “among” states. If Congress has the power to regulate commerce among the states, what is the limit on that power to regulate? If the activity is within that commerce clause power, then Congress has the ability to regulate it to its fullest extent.
What is “commerce”?
United States v. E. C. Knight Co. (1895)—Can a monopoly be directly suppressed under an act of Congress? Court decides that the case deals with the manufacture of refined sugar, and manufacturing is not commerce, but is the precursor to commerce. The manufacture is a local activity, not an activity “among” states. The Court here takes a narrower definition of commerce. Is the power under the commerce clause so great that Congress can regulate anything that affects commerce? Constitution enumerates the power to regulate commerce, not the power to regulate anything affecting commerce. This establishes the limitation on which the Court basis its decision.
