1 Constitutional Law Review Prof. Weiner Judicial Review Exam 3 Parts 1.

Basic Doctrines of Constitutional Law 25-50 short answer questions (either you get it or not) 2. Application of Doctrine to Facts Either Issue Spotter or targeted hypos (either you know it or not) 3. Policy Question Can be one big one or couple of smaller ones. Synthesize what it s all about.

Introduction
United States Constitution (USC) product of war of independence. Brought revolution of social and political importance in north America. Textual expression of political theory. That theory has altered the way people live across the globe. Product of a series of democratic compromises of politicians regarding what the new republic should be. Product of the give and take of the men in 1787. Symbol of our nation. Icon of civic religion. Culturally important. MOST OF ALL this document is the genetic code on basis of political life of our nation runs. Basic instructions for our common life. But genetic code is meaningless unless it s given expression. It needs to be given life. It s a short and spare document. Not like a statute or treaty (UCC for example). Its meaningless unless the spare words are given meaning as the words are tested against realties of political and social conflict that it encounters in the course of social adjudication. Article I 8 see commerce clause regarding several states. Interstate commerce clause. But what is commerce? Very ambiguous words. See Obamacare. See farmer growing crops above govt. instituted threshold example. The answers are found in the decisions of SCOTUS cases. The court interprets the spare language and gives it meaning. It has expressed the language in decisions. Many of the fundamental certainties under Warren were questioned by the Rehnquist court. SCOTUS really shapes constitutional interpretation. Judicial Review is the process courts decide if govt. officials comply with USC. USC is also there to put constraints on our personal freedoms. But Judicial Review is conducted by appointed officials. Not elected. Room for abuse? SCOTUS has typically been aware that this is anti-democratic (counter majoritarian dilemma) and thus during Review they try to mediate rather than aggravate.

 Ratification of a written constitution (contra, e.g., England): significance? The fact that the USC is written is key! Very important. Some countries don t have any written constitution the UK as an example. By constitution the UK understands their structure of govt. differently than we do. A written constitution demands a theory interpretation ex. How do we know what commerce means in Art. I Sec. 8. Demands interpretation. We think of USC as a fundamental law that constrains govt. USC begins with We the people it proclaims from the start that ours is a Republican form of govt. A republican form of govt. is where the people are sovereign. Their consent is required to have the government exercise its powers legitimately.  England and the principle of parliamentary supremacy

2 Constitutional Law Review Prof. Weiner Judicial Review Social Compact Theory govt is legitimate only if it has support of the people. Brits operated under parliamentary supremacy. Laws didn t come from the perspective of bettering the people. What parliament does, no power on earth can undue Blackstone. This lead to Military conflict of revolution. Colonists made arguments about limitations of the parliament to legislate to them in America all the way from the UK. Revolutionaries created a new version of constitutionalism. Thomas Payne Constitution is a thing antecedent to its govt. A govt is a creature of its constitution. Origins of the USC: Originally there are two plans on what this document will look like. First option was the Virginia Plan. Represents the ideals of the people who want the stronger centralized national govt. These men are urban elites. Creditors/bankers. Balanced against this is the New Jersey Plan. This plan represents the smaller states who would like to see a greater devolution of authority to state and local governments. These are rural debtors in the smaller states. Eventually a series of compromises are reached. The Great Compromise structures the legislative branch so that the Senate is represented by equal members regardless of how big the state is and the House of Representatives is formed based on the size of the population per state. But eventually it will be seen that the two sides can still have differing views regarding what the language meant.  Republican Government ( We the People ) of limited powers  Structurally balanced between three coordinate branches (separation of powers) and the states (federalism)  Article I (Legislature), Article II (Executive), Article III (Judiciary). Compare extent of enumeration of powers in each: significance? Art. I discusses the powers of the Congress. Specifically 8 lists the enumerated powers of Congress which include things like the ability to tax, form a standing military and regulate commerce to name a few. This branch is responsible for creating the federal laws. It is a political branch meaning the members are all elected. Art. II discusses the powers given to the executive branch the President. POTUS is responsible for administrating the laws created by Congress. There is some overlap (POTUS military powers, pardoning power, executive orders/agreements) but the checks and balances make it so that even these powers have their limits via impeachment, Congressional override of the veto, subpoena and investigatory powers to name a few. Art. III is where Judicial power is explained. SCOTUS is the supreme court of the land. It has two types of jurisdiction original (issues arising under the USC like freedom of speech and freedom from illegal search and seizure) and appellate jurisdiction (state issues where SCOTUS will generally interpret the state laws and apply them accordingly often when the state laws are not in conflict with any constitutional provision the state courts receive deference). USC Does:  Why divide power between three branches? 1. establishes the allocation of power among 3 branches. Why do we divide power? To prevent tyranny. This is essential. Art I legislative, Art. 2 Executive, Art. 3 Judicial.  Why maintain two levels of government?

3 Constitutional Law Review Prof. Weiner Judicial Review 2. Balances the relationship between the national govt. and the states. Creates the balance of federalism. See 10th Amendment any power not enumerated to the Federal Govt. is left to the states.  Why enumerate powers? 3. For the same reasons we have two levels of government (Federal and State) and three branches of government (Executive, Legislative and Judicial) the powers of each branch are enumerated to clearly define the roles, and limits of those roles of each branch in preventing an encroachment of power by one vs. the other. We will see that the way the USC has laid this out is imperfect and requires interpretation regarding its text starting with judicial review of Marbury.  Article VI, the Supremacy Clause: significance? 4. Fed govt is supreme where it applies see Art. VI supremacy clause. It can only act when the USC gives it the authority to do so. This helps in establishing the power of the central government in eliminating the bitter fights between the states with taxes, and interstate commerce. Also limited what the states could legislate with respect to personal freedoms.  Why was the Bill of Rights at first thought by some to be unnecessary? 5. Fed govt is there to guard individual rights. USC creates a floor for individual rights not ceiling. Framers were worried to list all the rights because they were worried it could perceived as listing only those rights individuals were guaranteed. But smaller states insisted on a Bill of Rights. 1791 enumerated. First 10 amendments commonly known as Bill of Rights  Article V, amendment process: significance? 6. Why have a constitution and not structure the protection of individual rights through a statute or treaty? The reason is the ease of change is much more difficult with a constitution. Art 5 of USC goes through the amendment process. It s not easy. This is to prevent a drift towards tyranny in a time of crisis.  Which branch would be the final arbiter of constitutional meaning? 7. Who would be the USC s interpreter? This is NOT answered by the USC. This question gives rise to the notion of JUDICIAL REVIEW ( JR ). Origins of JR are in Marbury v. Madison.  Federal constitution exists along with state constitutions. Significance? Federal constitution provides a floor for rights, not a ceiling. Federal action presumptively invalid but state action presumptively valid (see 10th Amendment, to be discussed later in course). 8. State constitutions are significant because they will often times allow for greater freedoms than the ones guaranteed by the USC. They are also important to make certain the laws of a given state are not encroaching on the individual rights guaranteed under the constitution remember the USC provides a floor of individual rights, not a ceiling. States can expand on these if they choose. Because federal authority is enumerated and leaves a number of areas of law undetermined by the USC, the state constitutions are there to fill in the gaps as they see fit so long as they do not violate any guarantees under the USC. An example might be the powers granted to the state executive something that isn t mentioned in the USC and is left for the state s to decide. Or how local elections are to be held.  Weaknesses of Articles of Confederation Constitutional Convention Origins and Theory of Judicial Review

4 Constitutional Law Review Prof. Weiner Judicial Review Articles of Confederation - was first American constitution fully ratified in 1781 but acted more like treaty than charter for new nation. No centralized govt. Localities had all power. No executive branch. More like the UN. States would have to voluntarily follow rules. Often they didn t. Would issue ex post facto laws and confiscate property. States would tax other states for imports. States w/ ports would hold other hostage . No national currency made trade and repayment of debts from War of Independence difficult. Decade later, judicial and legislative branches are formed. Then came Philadelphia Convention in 1787 that framed USC. USC distinguished central govt by listing its powers where it was supreme. All other powers were reserved to states. Electoral College was also put in place to attract best and brightest. Thought was that through public voting of representatives (who you hope have some intelligence) they would appoint the best and brightest for president and senate. 1787 USC is submitted to states for ratification. Federalists support it. Anti-Federalists claim it gave national govt. too much power. Wanted a bill of rights as well. Federalists said listing rights could be dangerous (are those the only rights that exist?). Both sides agreed that powers given to Congress and President should be determined by central govt. but Anti Fed thought those powers would be broadened through interpretation. By 1788 nine states had ratified. By May of 1789 all states had ratified. G. Washington then appointed NY s John Jay the first Chief Justice after his publication of The Federalist essays. Much of the first congress was devoted to developing a Bill of Rights that the Anti Fed wanted. Bill of Rights eventually established a floor for individual rights (passed later in 1791) and eventually applied those rights to the states through the 14th Amendment. What do we know about our constitution? 1. People are sovereign 2. Republican form of govt. 3. Language is purposefully ambiguous 4. System of Federalism national govt and state govt. Art. I Congress Art. II - Exec Art. III - Judicial Fed government can only act when the constitution gives it authority to act. When it acts, the fed govt is supreme. ---------------------------------------------------------------------------------------------------------------------------------

Judicial Review
Marbury v. Madison Class Notes: Most important case in constitutional law. Marshall announces extraordinary power (the right to review laws issued by Congress Judicial Act) by denying the court to exercise a smaller power (issuing a writ of mandamus). Main Idea Marbury v Madison establishes the principal of judicial review. Judicial Review is the principal the federal courts (SCOTUS in particular) can declare acts of congress or actions of exec branch void because they conflict with the meaning of the constitution. The fact that Marshall says that

5 Constitutional Law Review Prof. Weiner Judicial Review Marbury is entitled to a remedy against the Sec. of State Madison, means that the judicial branch can also review actions of the executive.

 Delineation of Judicial Power in Art. III SCOTUS is established by the constitution itself in Art. III. Lower courts are creatures of congress. SCOTUS engages in constitutional AND statutory law interpretation. It is important to point out that our constitutional interpretation is done by our court instead of the legislature or some other elected orifice. Fed court justices have life tenure and thus the pressure of politics is removed. This is the added benefit of not having elected officials involved. They also (based on 1) cannot have their pay docked based on their decisions. In addition, the justices are elected by the president and then approved by the senate. This is to make sure that the candidate for justice is qualified. This is also how the fed courts are appointed. Much less political than elections. Counter Majoritarian Difficulty in our constitutional system we have politically unaccountable justices deciding on the legality of the laws enacted or actions taken based on those laws that are enacted by the reps elected by the people. We have to justify the political insulation we give our justices.  Judicial review (discussion in Article III?) Marbury v. Madison (1803): significance? A judicial coup d ett ? Sources for Judicial Review Tex of document (lack of text under Art. I 8) Nothing in Art. III gives SCOTUS explicit power for judicial review. But the constitution does explicitly go through the enumerated powers of Congress in Art. I 8. This absence heightens the counter majoritarian difficulty but also gives credence as to why judicial review is appropriate because it is NOT an enumerated power to Congress. Many see Marbury v. Madison a judicial coup de tat because of this fact. This might be controversial but also offers safeguards against influence.  Why is the SCOTUS the best place for constitutional review? SCOTUS is insulated no salary reduction based on decisions made, appointed by president and approved by Senate (not elected by people), and can t be removed because of decisions. We are less concerned about the court trampling the will of the people because they are insulated. They are above politics and don t have to kowtow to the political will of a majority. A draw back to Judicial review by SCOTUS is the Counter Majoritarian Difficulty when the unelected SCOTUS can determine the meaning of government. Seems to subvert potentially the will of the people. The judicial review provision taken up by the court adds to the counter majoritarian difficulty because it s not explicitly mentioned in the constitution. The constitutional questions also make the people less engaged in the protection of their rights because the constitutional questions are answered by judges, not political officials. There s also a question as to the expertise of judges and their ability to review the vast amounts of subject matter legislation can cover. Marbury v. Madison Synopsis Revolution of 1800 ushers in anti-federalists. It was thought that the Anti Fed. would do away with much of what had been established thus far in the central govt. (central bank, currency, standing army, navy and fed judiciary). In reality Anti Fed wanted to control and confine the Fed courts. Anti Feds were made up mainly of agricultural land owners. Didn t want the govt telling them how to do business.

6 Constitutional Law Review Prof. Weiner Judicial Review Adams feared that popular control could make the central govt. unstable and made all these appointments to prevent it. Jefferson and the Dem Repubs repealed the 1801 Judicial Act that created the circuit courts and also eliminated the 1802 term of the SCOTUS (so that they couldn t find the repeal unconstitutional). Adams attempts to pack the courts with their guys days before they are voted out. Marbury is appointed justice of peace to District of Columbia and is denied appointment. He brings suit to SCOTUS because chief justice Marshall was secretary of state under Adams. Marshall is also a leading member of the federalist party. But Marshall doesn t compel the appointment be made. He doesn t because he understands the political context that he is operating in. If there is favoritism seen it undermines the entire system. I also creates a very important precedent judicial review of legislative power. This is the greater reason. The actions of executive are also up for review by SCOTUS if it s an administrative matter (and not political). Marshall establishes this by saying that Marbury is entitled to a remedy except the remedy sought (writ of mandamus) is unconstitutional given the court s original jurisdiction. Marbury believes that the courts can issue a writ of mandamus through the Judiciary Act of 1789, sec. 13. But section 13 is not all that clear on whether the court can grant the writ in their appellate jurisdiction. Marshall rejects that reading and argues that sec. 13 gives the court the ability to issue writs of mandamus in their original jurisdiction granting the court greater power in its original jurisdiction (which is unconstitutional). Marshall must read sec. 13 (an act of Congress) against the USC. Nowhere in the USC does it allow the expanding SCOTUS original jurisdiction by Congress. The ability for Congress to alter the court s appellate jurisdiction is clear under Art. III, sec. 2 we have the Exceptions, and under such Regulations as the Congress shall make. But can Congress alter the court s original jurisdiction? Marshall says no. There can t be superfluous language in a written constitution according to Marshall. Thus sec. 13 is unconstitutional (based on the way Marshall reads it). Judicial Exclusivity in Constitutional Interpretation Can the SCOTUS interpretation of the USC be questioned? If no, why can a president pardon a criminal? The President can also instruct the DOJ not to persecute possession of marijuana. What is the binding scope of judicial review? The issue is to what degree can the elected branches of Fed and state govts. disagree with the court on constitutional interpretation?  Significance of Article V for thinking about scope of judicial review Cooper v. Aaron (1958) pg 19 Governor Faubus of Ark. Looks to enjoin school integration after Brown v. Board of Ed. was decided to avoid chaos, bedlam and turmoil . Stated Arkansas was not a party to Brown decision and thus wasn t bound by it. SCOTUS under Warren affirmed circuit to grant injunction. Holding: USC is the supreme law of the land. If you want to change it, go about doing it according to USC Art. V. Otherwise, Art. VI of the USC states that the USC binds the states to its rule when the issue arises under the USC. If a governor could ignore the requirements of the USC the USC itself is worthless.

Review of State Court Judgments

Martin v. Hunter s Lessee pg 23 Denny Martin had received land from the estate of Lord Fairfax that was seized by the Govt. of Virginia. Virginia govt. had delivered title to Virginians including Hunter. When Martin attempted to claim his

7 Constitutional Law Review Prof. Weiner Judicial Review land, Hunter tried to have him removed (action of ejectment). Martin said his title was good based on the Jay Treaty (settling property claims between GB and American) and the Treaty of Paris of 1783 recognizing America s independence. Martin prevails at trial but the VA Supreme Court reverses stating that Martin (an alien) could not receive title to VA property. The VA Act of Compromise which supposedly had Martin surrender his land to the state was construed differently by SCOTUS thus allowing aliens to take title of VA property and they remanded the Martin case with instructions for judgment in favor of Martin. VA Supreme Court Argument; 1. The VA court recognized the supremacy clause of the USC but SCOTUS had no power at that time to review VA state decisions regarding federal questions because Congress had not created lower federal courts for subject matter removal from state jurisdiction and thus a patchwork of decisions was intended by Congress. 2. VA was sovereign just as the USA was and that the two courts come from separately sovereign bodies. Justice Story speaking for SCOTUS stated; 1. ALL CASES arising under the USC are to be under the review of SCOTUS. Otherwise, it would read some cases if it meant to exclude the state courts decisions that involve fed. questions. Art. III, 2 of USC 2. If Congress chose not to create the district courts then by the VA Supreme Court s interpretation, SCOTUS appellate power (based on Art. III) would have no meaning at the time the USC was written since there were no lower courts at that time. 3. Art. VI clearly states that the constitution is the supreme law of the land and that states shall be bound to it if their laws stand in conflict. The SCOTUS power is not based on original jurisdiction but on appellate jurisdiction. The USC does dictate certain things that the states must abide by (Art. I, 10). It is not that the USA and the states are separately and equally sovereign. The US Congress does have the power to Strip power from state legislatures and ALL states are under control of the USC. [the lower courts] Are expressly bound to obedience by the letter of the constitution . Art. VI USC 4. Ultimate decision must rest somewhere and wherever it rests it is susceptible to abuse so the argument that the SCOTUS is somehow going to be corrupted is a flawed argument. 5. Uniformity of decision is why SCOTUS being the final decider is important. Avoids a patchwork of decisions riddled with inconsistency. 6. Federal judges have lifetime appointments unlike state judges who are elected and thus subject to political influence. Thus federal judges are more adept at interpreting USC consistently. 7. Finally, this was already deliberated at the Philadelphia Convention when framing the USC. For VA to do this now is deplorable. Rule of Law. The United States Constitution (Constitution) and the laws of the United States made in pursuance thereof shall be the supreme law of the land and the judges in every state shall be bound thereby. Note: Biggest issue was that the case wasn t really about Fed Law an alien owning state land is more a state law question.  The Adequate and Independent State Grounds Doctrine pg 29

8 Constitutional Law Review Prof. Weiner Judicial Review SCOTUS cannot give advisory opinions because it erodes its authority and wastes the SCOTUS s time. They want to make an impact i.e. SCOTUS decisions must be binding. Either state court gets it wrong or write. They cannot change the opinion of the state court if the ruling is the same. If there s an adequate and independent state law that is not in direct conflict with fed law, and the case is ruled on based on those precedents, the SCOTUS will not review Michigan v. Long (1983) pg 30 (Adequate and Independent State Grounds Doctrine) MI had convicted Long of possession of marijuana after police searched his car on a routine traffic stop. At trial he was convicted. On appeal SC MI reversed. Michigan appealed to SCOTUS. Justice O Conner Plain Statement Rule - If the state s constitution closely mimics the USC but affords the individual more freedoms than the USC, and the State court decides the issue based on their own law (not USC version), SCOTUS is not to review. BUT if State court chooses to base holding on USC, SCOTUS has the right to review. SCOTUS does not have jurisdiction over the case if the state ground is (1) adequate to support the judgment, and (2) independent of federal law. Michigan s constitution closely mimicked the USC regarding illegal search and seizure (Art. I, 11 of USC) and decision was based on their constitution. Thus it should be left to the MI state courts to decide based on Adequate and Independent State Grounds. Question: If MI s law had violated their own constitution, and the state court stated as such, there would be no reason for SCOTUS review but if the state court agreed, that decision and state law could be reviewed by SCOTUS based on the Fed. Constitution. The USC provides a minimum floor for individual liberties. States are free to allow greater liberties than what is stated in the USC but not less. BUT even when state constitutions are written in the same wording as the USC, the state courts can interpret them differently. Hypo state SC NJ strikes down law that bans gay marriage. SC NJ opinion says that challenge is brought citing the state and USC equal protection clauses. The opinion says they base their decision solely on the NJ constitution. Should the SCOTUS review? No. As long as the law is independent of the language reflected in the Federal law. If it s verbatim they probably could review it. Bush v. Gore (2000) pg 32 Bush wins vote in FL. Margin is slight. FL law requires recount when that close. On recount Bush wins but margin is less. FL awards their electoral votes to Bush. Gore sues Bush in state court requesting a manual recount. Allows manual recount of votes but without giving exact rules with respect to how votes should be counted (voter intent, hanging chad). Bush petitions SCOTUS to stay recount. Court grants certiori. Finds that Equal Protection Clause of USC is violated by manual recount void of rules governing it. Some people who voted will have their votes counted differently than someone in another part of the state. State legislature should have created the re-count laws. Not for the SC FL to decide. SCOTUS cites Art. II, sec. 1. The USC nationalizes the FL legislature s election law. Art. II says the state s legislature is to determine the election law for each state. By this deference in the USC to the state legislature, the SCOTUS believes they can review a state court decision regarding election law to make sure that decision defers to the state legislature. Majority was in search of finality first. The dissent says state legislatures would create laws in the context of STATE judicial review.

9 Constitutional Law Review Prof. Weiner Judicial Review Dissent SCOTUS has accepted state court s interpretation of their own laws consistently. The legislature s intent is to get the most accurate voting tally possible. The majority s focus on vote finality disenfranchises a number of voters whose votes will not be tabulated. Should have remanded with instructions for legislature to standardize recount rules. The decision violates tenets of federalism. Arguments For and Against Judicial Review Pro: 1. By being insulated from political pressure through lifetime appointments, SCOTUS is able to; a. Offer protections for minority or unpopular so they aren t disenfranchised. Also, USC is worded sparsely so that future generations can calibrate the precise meaning of those terms to their particular circumstances. b. Stability in interpretation to give the USC settled meaning and finality through SCOTUS. Not multiple bodies. Judicial review gives us that. 2. Removes barriers to the democratic process when they occur. 3. Implements precedent , meaning limited government interference. Con: 1. Counter-Majoritarian Role - decisions are performed by a tribunal that is not accountable to the people since they have life time appointments. 2. Stare Decisis makes it difficult to correct bad interpretations of the USC. Only way to change a court s mind is through new justices (via one stepping down or impeached) or constitutional amendment. 3. Because they are an unelected body you have less interest from the public into whether their rights are being violated because they know they have very little power to change them. Doctrines Limiting Scope of Juridical Review Without any way of limiting judicial review, the unelected SCOTUS could run rough-shot over any legislation by Congress by claiming it unconstitutional. Fortunately there are safety valves in place to prevent this from happening. There are structural limitations that are put in place for this purpose as well as justiciability doctrines 1. 2. 3. 4. The amendment process of Article V, Congressional jurisdiction stripping (Ex Parte McCardle, U.S. v. Klein), No advisory opinions (MI v. Long) Ripeness and Mootness.

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Political Controls On The Court

Amendment Over 10k amendments introduced, 33 have been adopted by Congress and only 27 have been ratified by the state legislatures. Amendment can be done in 2 ways in USC Art. V. By 2/3 vote by Congress or by Constitutional Convention called by Congress upon application of 2/3 of the states. Whatever amendment, of the state legislatures or state ratification conventions must pass the amendment in order for it to be ratified. Unconstitutional Amendments

10 Constitutional Law Review Prof. Weiner Judicial Review Art. I, Sec.9, Cl. I & 4 taxes on importation of people into the states by Fed govt. Art. V (no state can have its representation changed in the senate w/o its consent) Appointment Appointing justices to the federal courts is another way to limit the scope of JR (it can also expand it depending on who is nominated). Sometimes presidents will nominate a justice who will alter existing law in their favor. Art. II requires that the president s nomination be confirmed or rejected by the senate before being appointed. This is a safeguard for allowing the president to appoint whomever without any controls in place by the opposing party. Depends on president s tenure as well (see Roosevelt). Impeachment Art. II allows impeachment of civil officers (this would include any justices) for conviction of things like bribery, treason and other high crimes and misdemeanors . The term high crimes and misdemeanors is not fully defined however. Some say it is whatever the majority of House consider to be a high crime at the time in history. Others say it needs to be an indictable offense. Impeaching a president is a much different process than a justice who has a lifetime appointment. Also impeachment cannot be initiated based on a judge s political ideology. Congressional Power to Establish Federal Courts and Determine Federal Appellate Jurisdiction Art. III assigns judicial power to the SCOTUS and the lower courts but Congress can create lower federal courts AND eliminate them as well as give and take away jurisdictional power aside from what is said in Art. III 2 that all cases under the federal judicial power can come under appellate review by the SCOTUS (aside from those cases of original jurisdiction). The scope of federal judicial power is limited to federal question (arising under the USC) or a diversity action (two people from dif. states). It s jurisdiction is broken down into original and appellate. SCOTUS Appellate jurisdiction is based on Art. III with such exceptions, and under such regulations as the Congress shall make. Ex Parte McCardle (1869) pg 55 Congress removes appellate jurisdiction for SCOTUS on Reconstruction Acts regarding writ of habeas corpus in the midst of SCOTUS hearing the case on appeal showing an example of Congressional power to limit appellate jurisdiction of the Court. After the Civil War, Congress imposed military government on many former Confederate States through Reconstruction Acts which placed McCardle in military custody for publishing libelous newspaper articles. McCardle filed habeas corpus writ claiming that Congress lacked authority to establish military government. The circuit court denied McCardle s habeas corpus writ but SCOTUS granted certiorari. After arguments Congress repealed SCOTUS appellate jurisdiction on any habeas cases regarding Reconstruction Acts both past or present. Issues Does Congress have the power to make exceptions to the Supreme Court s appellate jurisdiction in cases in which it has already granted jurisdiction? Holding and Rule (Chase) Yes. The Constitution gives the Supreme Court appellate jurisdiction, but it gives Congress the express power to make exceptions to that appellate jurisdiction. See Art. III Sec. 2. Provides an important check on a counter majoritarian institution. When a legislative act is repealed, it is as if it had never existed except in transactions past and closed. Thus, no judgment can be rendered in a suit after repeal of the act under which it was brought. Dismissed for lack of jurisdiction.

11 Constitutional Law Review Prof. Weiner Judicial Review Dissent the case was postponed and the court waited for legislative interposition. This is not proper. (What about right to speedy trial?) Notes In this case, Congress withdrew the right to hear habeas corpus cases only when the Court got a case under the Act of 1867 on appeal from a lower court. The Supreme Court would still have been able to hear an original petition for habeas corpus filed in the Supreme Court. See Martin v. Hunter s Lessee where SCOTUS held that it has appellate jurisdiction to review decisions of state courts involving issues of federal law. Congressional Limits on Changing SCOTUS Jurisdiction pg 58-59 External Limits: Internal limits are those implicit to Art. III. External limits are those that fall outside of Art. III - Like Equal Protection Guarantee or Due Process Guarantee, both of 14th Amend.. These areas of jurisdiction cannot be limited by Congress. They are External Limits because they fall outside of Art. III. External Limits come into play when dealing with limits of liberty on classes of citizens (women, blacks, atheists). But what about jurisdictional limits on categories of cases? See abortion debate. Fed Cir. courts are to follow SCOTUS precedents. State courts are to strike down state laws that are unconstitutional under Supremacy Clause. But what if Congress limited appeal jurisdiction of SCOTUS on state decisions regarding abortion (see internal limits and rule by decision ). Even more confusing, what if two states interpret the application of a federal principle (due process for example) differently and SCOTUS appeals jurisdiction has been removed? What internal limits can be placed within Art. III by Congress? Does it depend on the original function of SCOTUS by the founders? The opinions on what that function was is divided. What if Congress eliminated jurisdiction of all lower federal courts. Can this happen? Internal Limits: According to Art. III 2 Congress can strip SCOTUS of its appellate jurisdiction. It can control the jurisdiction of the lower courts as well. But there are limits specifically dealing with separation of powers issues there cannot be an encroachment on judicial power by Congress. Thus, It is likely that the SCOTUS would not allow congress to strip the fed courts of jurisdiction entirely over a class of matters. Congress CANNOT, under the guise of a jurisdiction stripping statute, usurp the judicial power by creating what the court calls a rule of decision for a class of cases. i.e forcing the court to decide in a certain way. Mandatory Federal Jurisdiction Position: Judicial power is vested in the SCOTUS according to Art. III but what about the power of the lower courts? Is Congress compelled to create lower courts granting them the same appellate jurisdiction that appears in Art. III? Precedent will show that there are no Internal Limits in Art. III to provide limits in jurisdiction for lower fed courts. Some believed that constitutional issues of a certain type should be litigated at the state level (with SCOTUS appellate jurisdiction).

U.S. vs. Klein (1872) pg 63 Klein was administrator of Wilson s estate. In 1863 Congress passed a law that allowed compensation to be given for property damaged by the Union army during the civil war. Klein applies for compensation for property damage. Wilson was previously given amnesty and pardon by Pres. Johnson and Klein

12 Constitutional Law Review Prof. Weiner Judicial Review alleges amnesty recipients were deemed loyal automatically. While Govt. appeals Klein s compensation award Congress passes law stripping Fed. Courts of jurisdiction over compensation cases where claimant was recipient of amnesty claiming amnesty was proof of disloyalty. Govt. says and the suit was to be dismissed because of lack of jurisdiction. Klein argues that this oversteps the bounds of Congress and violates separation of powers. Issue: Does a statute violate the separation of powers by commanding a court to draw a certain conclusion from evidence before it and by directing the court to dismiss an appeal for lack of jurisdiction when it encounters such evidence? Holding / Rule: Yes Congress cannot direct the court on how to decide a case (dismissal) upon discovery of evidence of pardon because of a lack of jurisdiction. The law gives jurisdiction to the court up until they see proof of a pardon then they say they no longer have jurisdiction and that the case is to be dismissed. If the law simply removed the entire class of cases out of the Fed. Jurisdiction this would be ok, but determining how a court should rule by legislation is unconstitutional violating the separation of powers by encroaching on judicial powers AND presidential powers by removing the power of a presidential pardon. It is an illegitimate means to an end in attempting to predetermine judicial outcomes. Notes What is the primary issue at play in Klein? That Congress leaves the substantive law in place while attempting to dictate an outcome? Is this a Rule of Decision or Change in Substantive Law ? In Plaut v. Spendthrift Farm Inc. Congress establishes uniform statute of limitations for Securities Act of 1934 suits. Many were thus dismissed. Later Congress allows certain cases in 1991 to be revisited. Court said this was unconstitutional because it violated Art. III of USC allowing Fed judiciary to render final judgments. ------------------------------------------------------------------------------------------------------------------------------

Justiciability pg 65
y y y Who (who can bring cases) = standing (see case or controversy of Art. III) What (what type of cases) = political question When (when can the case be heard)= Mootness, ripeness standing required at specific time. Mootness specifically asks whether there is still a case or controversy throughout the litigation process. Ripeness asks if there has been an actual injury suffered or eminently suffer

Note: Your thoughts of justiciability may be determined on your thoughts of how our system has responded to counter majoritarian concerns. If you have high counter majoritarian concerns you seek justiciability that constricts the courts ability to hear a large breadth of cases. The opposite is true if you have lesser counter majoritarian concerns. Justiciability concerns the limits upon legal issues over which a court can exercise its judicial authority. Court can only hear a case or controversy according to Art. III. Fed. Courts cannot give advisory opinions. Must decide issues of litigants with real grievances. Ripeness and mootness doctrines help court decide which cases should be heard. There are policy and constitutional considerations when determining justiciability.

13 Constitutional Law Review Prof. Weiner Judicial Review Essentially, justiciability in American law seeks to address whether a court possesses the ability to provide adequate resolution of the dispute; where a court feels it cannot offer such a final determination, the matter is not justiciable. Rationale Against Advisory Opinions: Separation of Powers advisory opinion means its not final. Can t have court in that role otherwise what decisions are final that they have? Undermines them. Policy limits - Tendency to misapply law to too broad a category of issues because there isn t a real conflict to narrow the scope of the decision which isn t a decision at all. Appropriate Question = justiciable Inappropriate Question = non-justiciable Declaratory Judgments: These are not advisory decisions. They are binding even if they can be overturned on appeal. 28 USC 2201 (Declaratory Judgment Act 1934) fed courts can grant declaratory judgment in cases where there s an actual federal question or controversy so long as it s touching the legal relations of parties having substantial adverse interests both seeking specific relief. see Aetna Life v. Haworth Standing to Sue: Court can only hear case if litigant has proper standing . Must have sufficient stake in controversy to assert claim. This is done to make sure the one bringing the claim has suffered a real loss, not a random bystander being opportunistic. You can t sue taxi cab company if the cab runs over your neighbor. This is not in the constitution but is a doctrine devised by the court in their prudent discretion. Organizational Standing pg 96: standing rules apply to organizations (unincorporated associations) so long as; 1. People they claim to represent have standing to sue on their own 2. Interests being sued for are applicable to org s purpose 3. The claim or the relief does NOT require individuals to participate in suit Ripeness and Mootness pg 96 Courts will not decide issues that aren t ripe or are moot Ripeness violation must be certain (concrete and particularized). Similar to advisory opinion doctrine of the court avoid abstract controversies. Issue is fit for judicial decision. Plaintiff must have; 1. suffered harm, or 2. be faced with a specific present harm, or 3. be under the threat of specific future harm. See Laird v. Tatum (1972) Army surveillance of plaintiff caused chilling effect on free speech but court didn t see as ripe because plaintiff admitted to fear of future punitive action no actual damages had occurred. Mootness Need not be decided because events have eliminated plaintiff s stake in controversy . Mootness is directly related to standing set in a specific time frame. The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its

14 Constitutional Law Review Prof. Weiner Judicial Review existence (Mootness). Ex. Ex Parte Yerger (1869) where MS newspaper editor is imprisoned by military court over unpaid taxes. Yerger s attorneys attempt to have him released under habeas corpus writ. The imprisonment and military court were all related to Reconstruction Acts. Court releases Yerger to MS officials for trial in civil court and simultaneously dismiss his appeal. Issue was now moot since he was released BUT Reconstruction Acts were never adjudicated. Similar outcome to Gitmo cases. Controversy between parties has clearly ceased to be definite and concrete and no longer touches the legal relations of parties having adverse legal interests. Mootness is a constitutional requirement however some say it may no longer be the case because there are exceptions to the rule. Exception to Mootness: When an issue is capable of repetition yet evades review. Has two requirements. 1) the life of controversy is too short to be fully litigated prior to termination; 2) there s a reasonable expectation that plaintiff will again be subjected to the same problem. #2 has been broadened to class actions where the class representative may not face the same issue in the future but similar class members will. See Roe v. Wade TX abortion law is challenged by TX woman but by the time the case was before the SCOTUS she had had her baby. The court said that because gestation was faster than the time to fully litigate, the usual Mootness of the issue would not apply to Roe in this case because other prego women would likely go through the same thing.

Constitutional Core of Standing

y Injury Not Personal (remote, fluctuating) Valley Forge Christian College v. Americans United for Separation of Church and State (1982) pg 69 Respondent (Americans United) sues as taxpayers against Dept. of Health, Education and Welfare (HEW) disposing of public surplus property to Valley Forge Christian College (petitioner) they trained students for Christian service. Respondent claims this violates separation of church and state under 1st Amendment. HEW gave Valley Forge a closed down hospital claiming that the price was reflective of the 100% public benefit. Lower court in favor of Americans United. SCOTUS grants review. Issue: Does American United have standing as a taxpayer to bring suit? Rule of Law: Taxpayer standing is appropriate when the plaintiff challenges an enactment under the taxing and spending clause and the enactment exceeds specific constitutional limitations on taxing and spending. Holding: Reversed. Americans United lacks standing as taxpayers since their claimed injury of a greater tax burden due to alleged unconstitutional action was remote, fluctuating and insufficiently personal to constitute injury in fact. Reasoning: Art. III requires the court review cases and controversies only. Means plaintiff must have standing. To have standing, plaintiff must have 1. Actual suffered an injury, is suffering or is doomed to suffer an injury (particularized injury). 2. Injury is traceable to defendant actions (causation) 3. Must be a remedy available (redressability)

15 Constitutional Law Review Prof. Weiner Judicial Review Note: But even when plaintiff has redressable injury sufficient to meet requirements of Art. III, the court refrains from adjudicating abstract questions of wide public significance which amount to generalized grievances. Dissent: Justice William Brennan (J. Brennan) sees the rise of standing jurisprudence as a means to sidestep deciding important rights issues by effectively slamming the courthouse door against plaintiffs who are entitled to full consideration of their claims on the merits. y Injury and Redressability (injury not particularized, redress not available) Lujan v. Defenders of Wildlife (1992) pg 71 Rule change by Regan administration s Secretary of Interior regarding Endangered Species Act (ESA) stating that consultation with Secretary of Interior was no longer necessary for actions taken by fed. agencies abroad that could effect endangered species. Scalia says they have no injury and no redressability (thus no standing). Scalia: core components of plaintiff s standing regarding Art. III s cases and controversies language is 1) plaintiff suffers an injury in fact. Must be legally protected interest. Can t be conceptual / hypothetical or conjectural. Can also be imminent injury. 2) Must be causal connection (cause in fact). Can t be speculative as to defendant s conduct and what might result. 3) Must be likely and not speculative that injury will be redressed by favorable decision. Respondents haven t demonstrated injury and redressability. Not an actual or imminent injury and no particularized injury can t be that nobody will get to see species again. Has to be particularized injury to plaintiff. Respondent tries to say that anyone who enjoys or observes these animals anywhere has the right to sue the US govt. Has to be much closer relationship than that. Lack of redressability because the US funding of dam is small and species are destroyed regardless of US involvement. Also the grievance against the govt. cannot be some general grievance that equally affects all citizens and where the relief would be of no greater benefit to the individual than it would be to all citizens. Injury must be personal. This doesn t state Art. III case or controversy. Also judicial decision conflicts with separation of powers because this deals with administrative law under executive branch. Beyond limits of Art. III case and controversy requirement. Dissent: Majority cannot be saying that procedural injuries are a class of injury that is not entitled to redress under Art. III (b/c of lack of standing). Some procedures are meshed with the prevention of a substantive harm to an individual. Plaintiff may be able to demonstrate an imminent injury if such procedures aren t followed. By saying procedural injuries lack merit within standing they take away from Congressional power who design the procedures that are to be followed. By saying there s no redress when procedures aren t followed, you weaken Congress.

Case or Controversy Requirement: Has to do with standing meaning 1. Personal, actual (or imminent) injury; 2. Cause is traceable to defendant action; 3) redressable by courts y Causation Requirements

16 Constitutional Law Review Prof. Weiner Judicial Review What about cause of injury? Fairly traceable? Direct cause-in-fact like torts? Would not have occurred but for defendant s actions? Or is it ok to say substantial likelihood that injury wouldn t have occurred if not for defendant action. Allen v. Wright Family of black children sue IRS for granting tax exempt status on racially divisive private schools in Memphis. Plaintiff claimed injury was due to bad public schools in Memphis BUT court said the bad public schools were not directly caused by IRS thus no cause of injury. Warth v. Seldin - Plaintiffs were various organizations that claimed that a local zoning ordinance excluded persons of low and moderate income from living in a certain community. Defendants responded by claiming that Plaintiffs lacked standing to bring suit. Court ruled none of the plaintiffs provided evidence sufficient to show that but for the city s zoning rules, their respective injuries would not have occurred (no causation). Further, any redress of potential injury was too vague and not sufficiently concrete to meet the applicable standing requirements. Congress and Standing: Congress can legislate standing through the wording of legislation. By saying for example any American citizen you are specifying what the requirements are with respect to an aspect of standing covering a broad base. This casts a wide net and the court has said when grievances effect so many concretely in an even way, legislation is the better place to remedy it. But when injury results the courts do respond even when the injury is to masses.

y Causation of Injury (injury was directly related to actions by EPA regardless of impact) Massachusetts v. EPA (2007) pg 82 MA is claiming injury to its coastal shores through rising sea levels due to greenhouse gasses. They blame EPA who renounces its responsibility, under the Clean Air Act, to regulate new car emissions of 4 green house gasses including carbon-dioxide. Petitioner challenges MA refusal to regulate gasses based on 202(a)(1) of Act. Rule: Plaintiff has standing if it demonstrates concrete injury that is both fairly traceable to the defendant AND redressable by judicial relief. Analysis: MA proceeds as a quasi-sovereign entity and is entitled to special solicitude . MA s interest in its vindication of its citizens takes place in a federal system and in this instance MA has surrendered some of its sovereignty in entering this federal system for adjudication. Therefore they should receive a quasi sovereign status. There are different standards of justiciability for such plaintiffs. Particularized injury to MA is to its coastline and this can be traced directly, although in small part, to EPA s inaction. Small effects on the injury by inaction satisfy the injury-in-fact and direct causation requirements of standing. The redress of injury can be remedied by the court by requiring EPA to regulate new vehicles for greenhouse gases even if that outcome is delayed and limited (because the regulation would only pertain to new cars). Reversed and remanded. Dissent: Under normal standing analysis, MA s injury fails the concrete and particularized injury necessary. The coastline s deterioration as it related to greenhouse gases is tenuous and speculative. Injuries are not particular enough (can t be to general humanity). Redressability is also weak in that if EPA is required to govern these gases the impact is negligible due to other countries non compliance.

17 Constitutional Law Review Prof. Weiner Judicial Review Finally this kind of redress should be left to the political branches of government. Relaxing the standing requirements introduces a dangerous precedent. MA requests parens patriae standing there s a quasi-sovereign interest in addition to interest of particular private parties. This means that at least one of MA s citizens must satisfy the requirements of Art. III (case or controversy) as well as it represents the interests of the citizens of MA. Georgia v. Tennessee Copper (1907) involved wholesale destruction of forests in GA because of TN pollutants. Individual land owners suffered and had justiciable cause of action. This case had nothing to do with standing. Yet majority uses TN Copper as justification suggesting that because MA has quasisovereign interest based on parens patriae it is bequeathed with standing. y Lack of Standing (tax payer status usually fails standing test, injury not particularized) Arizona Christian School Tuition v. Winn (2011) pg 2 of Supplement States allows school tuition tax credits to it s citizens. STOs are tax credits based on donation made by tax payers to private schools. Many of the schools are parochial (some however are secular). Plaintiffs seek relief due to divergence of tax revenues to institutions that exclude students based on religion violating the Establishment Clause of the 1st Amendment USC. Plaintiff s standing is due to its status as tax payer of AZ. Courts have only limited exception allowing taxpayers standing in adjudicative matters those are established in Flast v. Cohen (1968) when fed. govt. looked to use tax revs to support religious schools. This violated the establishment and free exercise clauses of the 1st amendment. But this case dealt with expenditure. The case at bar deals with tax deduction. Majority says the two are dissimilar. Majority states that tax expenditure in Flast is direct injury to tax payer whereas the STO in AZ are individual donations to schools of the individual s choice. The issue comes down to the number of buffers between the cause and effect. Dissent sees the clear cause and effect relationship. The govt. spending on religious institutions with tax payer money is a clear violation. The govt. allowing an individual not to pay taxes if they donate their own money to a religious school has a similar effect but is done through different channels. See also Flast v. Cohen (1968) - Challenge to congressional spending on religious groups (violating establishment clause) based on tax payer status Standing was justified on the basis that injury was caused explicitly by being a US taxpayer (spending can only be done under Taxing power of Congress) and that the spending violates a rights provision in the constitution (freedom of religion/non establishment clause). The plaintiffs however aren t injured in the normal sense they are injured by virtue of being tax payers. The court had said previously that claiming an injury because of taxpayer status is not particularized enough. Contrast With . . . Hein v. Freedom From Religion Foundation (2007) action as tax payers brought against Office of Faith Based Initiatives for giving tax payer dollars to faith based groups (they also gave to community groups). In Hein we have the same type of suit in Flast but a different outcome. The court does not extend the taxpayer standing to issues with the executive branch (Office of Faith Based Initiatives). If they want to file a suit against the office they must find an individual plaintiff. You ll have to argue that the white house has forced a disproportionate amount of money from office to religious groups violating the establishment clause - finding an individual however is next to impossible. So by virtue of the Hein Doctrine the Office of Faith Based Initiatives is insulated from constitutional review.

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Political Question Doctrine

Political Questions: Those issues that should be decided by the other political branches of government that should not be decided by the court. This is both a constitutional and prudential doctrine. Courts can act only through legal forums. Political fallout is a mere by-product. The Political Question doctrine divides politics from law. Gets political discourse out of law. Two Primary Principles: Textual (Separation of Powers in the USC) As a constitutional matter, the court will not decide issues that are committed to other branches of government by the constitution. Prudential Concerns - Various self imposed policies not found in the constitution that deal with concerns where the court feels it s unwise to adjudicate not necessarily for constitutional reasons. The biggest being that a lack of judicial standards or precedent for resolving an issue makes the issue a non justiciable political question. In determining a political question the Court is asking whether constitutional provisions lend themselves to interpretation as guarantees of enforceable rights. See Marbury v. Madison s J. Marshall stating that courts only have the ability to act within legal forms whatever political consequences they produce is a mere by-product of their resolutions. You need parties who are adversarial and looking for different outcomes y Representative Democracy a Matter of Equal Protection and is Justiciable Baker v. Carr (1962) pg 99 Injunction sought against further elections in TN until reapportionment of state legislature is conducted based on most recent federal census. 1901 TN constitution states that legislature is supposed to be based on population of areas within the state but the legislature had never been reapportioned. Plaintiffs claim this violated the equal protection clause (communities of blacks were not represented). Plaintiffs claim no redress available in TN state legislature because of the lack of apportionment. Trial court denied a hearing stating it was a political question that was non justiciable - based this on Colegroove v. Green where validity of IL congressional districts were questioned because of population. Court stated that Congress maintained ultimate authority to represent states (Art. IV, 4). Holding / Rule: Federal courts have jurisdiction to hear a constitutional challenge to a legislative apportionment. Political right does not equal political question. Political question has nothing to do with matters touching state governmental organization as in the case at bar. Analysis: 1 of 6 Factors that must be present to make an issue non justiciable 1. Commitment to another branch of govt. constitutional commitment to one of the other 2 branches of government (not the state governments) 2. Lack of respect for other branches impossible to reach decision without showing lack of respect to other branches 3. Lack of standards - lack of judicially discoverable standards to resolve the issue

19 Constitutional Law Review Prof. Weiner Judicial Review 4. Involves separate non-judicial policy can t decide the issue without involving a policy issue that is clearly non-judicial 5. Political decision already made unusual need for unquestioning adherence to a political decision already made. 6. Multiple versions potential embarrassment from multiple pronouncements by various departments on one question. a. Also possibility that issue raises a controversial question whose adjudication might lead to undesirable consequences. Background Case: Luther v. Borden (1849) Luther deals with Guarantee Clause . Original charter of RI govt. limits voting by certain property ownership qualifications. You need to be a land owner. Increasingly more immigrants come and are not land owners. Soon they represent majority of RI. They d like to vote on legislature as well. But the current legislature is voted in by landowners so there s no way they will change the charter to allow for immigrants to vote. The immigrants take up arms and seize the armory. In response the reps of the chartered govt. (Borden) take it back and seize Luther himself. In response, Luther brings a trespass charge against Borden for entering his property. Luther was the representative of the majority of immigrants and he claims the chartered govt. is a fraud. The court s claiming the issue was nonjusticiable was based largely on a lack of criteria by which the court could base which form of government was republican . The court has since refrained from using the Guaranty clause to invalidate state action Looking at the Guarantee clause of Art. IV, 4, there is no clear language that tells you what type of republican form the government has to take. In essence there are a lack of standards the court can follow and thus there can never be a case brought under the Guarantee clause. Decision: J. Brennan - The case at bar doesn t violate any of the 6 previously mentioned factors that make an issue non-justiciable. Reversed and remanded. Dissent J. Frankfurter - Courts have determined important issues that are non-justiciable. Guaranteeing a republican form of government is one of them. When wars should end another. These are left to political government. Luther, Colegrove and others say Guarantee Clause is not enforceable by the courts. Also a question of federalism no need to meddle in state matters. Present case has all elements that have made Guarantee Clause cases nonjusticiable. Court is being asked to choose between competing theories of representation (by geographical region as opposed to population). To find the court s power to enable this under the 14th amendment (equal protection) would be to rewrite the constitution. Notes Why was the outcome different from Guaranty Clause of Luther v. Borden (1849)? The six points of J. Brennan reshape the proper role of courts. Establishes the modern political question doctrine by weakening it. Makes issues about representative government and Equal protection and NOT Guarantee Clause. Luther made it that Guarantee Clause was a political question. In this case there was a clear impediment to democracy and Brennan believed Equal Protection meant Representation Reinforcement. The counter-majoritarian court vindicating democratic majorities and opening the channels of the democratic process. In Baker the voting district that was disenfranchised was much more populated in numbers and was by and large African American.

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Strands of the Doctrine The 6 standards of non-justiciability Lack of judicially discoverable and manageable standards is generally interwoven into the first text of the constitution strand. The 3,4,5 & 6 strands all have to do with possibility of avoiding high costs. These political questions are usually a hybrid with the other strands. See Goldwater v. Carter regarding the costs associated with foreign affairs if the court could decide the validity of a President s abrogation of a treaty amount of uncertainty could be disastrous. y Nonjusticiable Issues (Text of USC shows decision for another branch of govt) Nixon v. United States (1993) pg 106 Plaintiff (Walter Nixon) is a federal judge who was impeached. He challenges the process of impeachment conducted by the Senate (according to Senate Rule XI) saying it was unconstitutional because they didn t adequately try him based on Art. I, 3 ,cl. 6 because it was a limited body of the senate that participated and not all in the senate heard the evidence. He said try should mean that the full senate participates and hears evidence. Not just judiciary committee. Rule: An action is nonjusticiable when the text of the constitution shows a commitment to another branch of government regarding the particular issue OR a lack of judicial standards for resolving the issue. Analysis: Structural Reasons Why this is Non Justiciable 1. Impeachments are left to the senate s authority based on Art. I 3 senate s sole authority. The rules that spell out the limits of the senators participating (under oath, 2/3 majority in each house, that the house charges and the senate adjudicates) 2. Checks and balances by the framers to allow this to be justiciable would allow judiciary to oversee the process of their own being impeached conflict of interest. Decision: Affirmed nonjusticiable issue Concurrence Sole power of senate is not to prevent judiciary from interfering but to prevent the House of Reps from interfering. Secondly, try intuitively means to try the case in a judicial sense and does in fact represent a judicially manageable standard. Doesn t matter because constitution shows a clear commitment to another branch and they followed the intent of the framers in their trying . Non-Justiciable Political Question Issues Impeachment See Nixon v. U.S. constitution s text indicates this issue is to be resolved by another branch of government (congress). Amendment to Constitution See Colman v. Miller (1939) Only congress could determine if a state had ratified a constitutional amendment. Lack of judicially manageable standards. Guarantee of Republican form of government see Luther v. Borden (1849) court didn t have criteria specifying what type of republican government was necessary. Lack of standards. War Powers Disputes See War Powers Resolution of 1973 after Vietnam. No judicially manageable standards.

21 Constitutional Law Review Prof. Weiner Judicial Review Powell v. McCormack (1969) - Powell was elected to Congress but was found to have engaged in deceptive and possibly illegal actions surrounding his service as chairman of Education and Labor Committee. After reelection to Congress, he was asked to step down and not be sworn in. Powell sued, alleging the House did not have the constitutional authority to deny his seat when he met the qualifications set forth for Representatives in Article I of the USC. The Defendants- Speaker of the House John McCormack, argued that the House has broad powers under Article I to determine the qualifications of its membership. Court ruled in favor of Powell stating qualifications of House of Reps was set forth in the Constitution and to hold otherwise would nullify the framers decision to require 2/3 vote for expulsion. Issue is justiciable. Note the fact that there were judicially manageable standards laid out in the USC made the claim have merit. Nixon s case clearly had the authority going to the Senate under the USC. Thus non-justiciable. Goldwater v. Carter (1979) Can the POTUS withdraw from a treaty unilaterally? Court says this was a non justiciable issue because although the constitution says the Senate can ratify a treaty, it is silent on who may abrogate a treaty. Lack of standards prevents the court s ability from adjudicating. Also political fallout from a court going against the decision made by president could rattle our allies president s word not good??? Hypo - So if a judge is faced with a suit regarding troops sent to Afghanistan without Congress declaring war, can it be heard? Answer is no. It is a political question. The congress would have the ability to defund the war. If they didn t, the citizens could vote in people who would. So why bring the suit? To bring it to the forefront of political discourse. Bush v. Gore (2000) pg 116 FL SC order to manual recount votes without standards was seen as a violation of the FL legislature s intent of their own legislation mainly not having the final vote completed in a timely fashion based on federal requirements. Dissent No evidence that counting of over votes would add legal votes, nor evidence that there was counting of ballots but not under votes in select counties. The lack of uniform standards in the recounting is an issue but this should have been remanded to the FLSC for clarification. That it wasn t is unprecedented. Question was this a non-justiciable issue? My thoughts no. USC grants the power of the state legislatures to determine how the vote is tabulated. That is not another branch of the federal govt. Given that the act of electing POTUS is a USC provision, the review of whether the state had followed the USC was a justiciable question but the result was a violation of federalism.

11th Amendment Judicial Limits and State Sovereign Immunity - pg 122 Takes away jurisdiction that was given to federal courts by Art. III. All cases in law and equity. . . between a state and citizens of another state. . . No state can be sued in either federal or state court for monetary damages (as opposed to injunctive relief) whether by citizens of another state (clearly in 11th amendment) but also by citizens of the same state (through judicial interpretation) and this pertains to a state or federal cause of action. A state can still be sued for injunctive relief and this doesn t apply to cities or towns just states. This gives extraordinary protection to the states. Allows states to ignore or even circumvent federal law without the risk of a monetary damage reward. BUT there are exceptions. . .

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Exceptions to 11th Amendment 1. A state can be sued when in violation of the 14th amendment (due process or equal protection) cl .5 allows Congress to enforce these provisions. Any law created by a state in violation of the equal protection clause for example, would allow suit for monetary damages. Same for wrongful incarceration (due process violation). 2. A state sovereignty is abrogated when the federal govt. sues the state. 3. Sovereignty can be abrogated if the state chooses to allow it. Why would a state ever allow itself to be sued for monetary damages? Because the Federal govt pays the state for that purpose. The fed govt offers the cash for other purposes but as a condition the fed will specify that the state must agree to be sued under a particular violation. Called Grants of Conditional Spending. The 11th amendment was designed to prevent law suits at the federal level against states based on in personam jurisdiction, however in recent cases in rem jurisdiction has been allowed to circumvent the 11th amendments sovereign wall applied to the states. Bankruptcy and In Rem TN Student Assistance Corp. v Hood (2004) fed bankruptcy court heard adversary proceeding of individual against state that held his student loan. Remedy sought was discharge of the loan. Central VA Community College v. Katz (2006) states acquiesce in a subordination of whatever sovereignty they had when ratifying the Bankruptcy Clause Congress can change this but has chosen to treat states as other creditors in bankruptcy cases. The Officer Suit Fiction See Ex Parte Young (1908) - 11th amendment does not apply immunity of suit to the individual officer when they are acting wrongly in an official capacity representing the state. Dichotomy is that immunity still applies if equitable relief is sought where the state would have to pay for past wrongs. If a plaintiff wants damages from the state even for constitutional violations the federal courts are not available unless there s a waiver by the state or abrogation by congress. But a plaintiff can obtain a federal injunction to stop unconstitutional behavior so long as it is a specific state official that is enjoined.

Methods of Constitutional Interpretation (pgs 39-47) Interpretivists vs. Noninterpretivists (aka Originalism vs. Non-Originalism) Noninterpretivists says we should not attempt to figure out what the text of the constitution means. The constitution should be a reflection of what our present sense of fundamental justice. Courts should not be limited to just the words of the document. They should employ external sources in adjudicating constitutional issues. Interpretivists insist that the only proper form of judicial review is through the strict reading of the text in the constitution.

23 Constitutional Law Review Prof. Weiner Judicial Review Issues with Noninterpretivism How can judicial review be conducted w/o guidance from a written document? Isn t this wholly authoritarian to allow a judge to impose his moral values in adjudication at will? But how then do we interpret what the true meaning of the constitution is? 6 Methods of Interpreting Constitution 1) Textual Method what does the constitution say not based on critical thought of meaning but more generally what is said. 2) Historical Argument two schools. Determining original intent and establishing original meaning of text. a) Original Intent some say this allows non elected life appointees to remake the constitution to reflect their personal preference. b) Original Meaning focus on original meaning of text itself because intent of framers difficult to ascertain. c) Vectors of History placing the document s meaning in historical context and extrapolating how those historical issues relate to modern day issues. Dynamic way of viewing constitution not like orig 3) Structural Arguments particular principle or result is implicit within the structures of the branches of govt.Marshall s argument is that the structure of the constitution is so so that a federal judiciary can determine constitutional law. 4) Doctrinal Arguments stare decisis is at its weakest regarding constitutional law because it is so difficult to change a constitutional law decision made by the court previously virtue in legal stability. 5) Prudential Arguments advancing particular doctrines according to the practical wisdom of using the courts in a particular way. Judicial review regarding a president s impeachment as an example such a review could be catastrophic and destabilizing. Many arguments regarding the separation of powers are prudential. 6) Cultural Arguments non textual, cultural norms of what is normal, moral, fair. Can be powerful when used in conjunction with constitutional arguments. Constitutional Interpretation vs. Constitutional Implementation Implementation is a political calculation. Uneven Nature of Judicial Review Tiered Review and the Unequal Status of Constitutional Claims. Generally 3 levels. Minimal, strict and intermediate. Rational Basis Scrutiny default level. Court starts assuming govt. action is valid. Challenger has burden of proving the state action is not rationally related to a legitimate govt. objective. Strict Scrutiny Govt. action is presumptively invalid. Generally deals with suspect classification (based on skin color). Govt. has burden of proof to show action is necessary to accomplish compelling govt. objective. Very difficult standard to meet. Successfully used by using race to end racial segregation. This also applies to ameliorative laws to help reverse consequences of previous discrimination as well. Intermediate govt. action has some taint of presumptive invalidity but not enough to invoke strict scrutiny. Govt. still has burden of proof to show the govt. action is required to accomplish substantial Govt. purpose. Inherently subjective.

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The Right to Keep and Bear Arms (pgs 1193-1213) Two Schools of Thought much academic interpretation but very little judicial. 1) Right to bear arms in military capacity. 2) Right for individual to keep and bear arms In DC v. Heller the court announces a constitutionally operative rule but does nothing with respect to constitutional decision making to determine if a regulation concerning firearms is unconstitutional.

District of Columbia v. Heller (2008) pg 1193 decision regarding DC s ban on handguns in the home. Facts Handgun possession is banned under District of Columbia (D) law. The law prohibits the registration of handguns and makes it a crime to carry an unregistered firearm. Furthermore all lawfully owned firearms must be kept unloaded and dissembled or bound by a trigger lock unless they are being used for lawful recreational activities or located in a place of business. Dick Heller (P) is a special police officer in the District of Columbia. The District refused Heller s application to register a handgun he wished to keep in his home. Heller filed this lawsuit in the Federal District Court for the District of Columbia on Second Amendment grounds. Heller sought an injunction against enforcement of the bar on handgun registration, the licensing requirement prohibiting the carrying of a firearm in the home without a license, and the trigger-lock requirement insofar as it prohibits the use of functional firearms within the home. The District Court dismissed Heller s complaint. The Court of Appeals for the District of Columbia Circuit reversed and directed the District Court to enter summary judgment in favor of the District of Columbia. The Court of Appeals construed Heller s complaint as seeking the right to render a firearm operable and carry it in his home only when necessary for self defense, and held that the total ban on handguns violated the individual right to possess firearms under the Second Amendment. The Supreme Court granted certiorari. Issue: What rights are protected by the Second Amendment? Holding and Rule (Scalia): The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Text of the Second Amendment 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. Constitutional Construction The prefatory clause A well regulated Militia, being necessary to the security of a free State merely announces a purpose. It does not limit or expand the scope of the operative clause the right of the people to keep and bear Arms, shall not be infringed. The operative clause s text and history demonstrate that it connotes an individual right to keep and bear arms. The militia consisted of all males capable of acting together for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable citizen

25 Constitutional Law Review Prof. Weiner Judicial Review militias, thereby enabling a politicized standing army or a select militia to rule. The Antifederalists therefore sought to preserve the citizens militia by denying Congress the power to abridge the right of individuals to keep and bear arms. This interpretation is confirmed by analogous arms-bearing rights adopted in state constitutions immediately preceding and following the Second Amendment. Furthermore, the drafting history reveals three proposals that unequivocally referred to an individual right to bear arms. Interpretation of the Second Amendment by scholars, courts, and legislators from ratification through the late 19th century also supports the Court s interpretation. No precedent forecloses this interpretation. United States v. Miller limits the type of weapons to which the right applies to those in common use for lawful purposes, but does not limit the right to keep and bear arms to militia purposes. The Second Amendment right is not a right to keep and carry any weapon in any manner and for any purpose. The Court has upheld gun control legislation including prohibitions on concealed weapons and possession of firearms by felons and the mentally ill, laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, and laws imposing conditions and qualifications on the commercial sale of arms. The historical tradition of prohibiting the carrying of dangerous and unusual weapons supports the holding in United States v. Miller that the sorts of weapons protected are those in common use at the time. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The total ban on handgun possession in the home amounts to a prohibition on an entire class of arms that Americans overwhelmingly choose for the lawful purpose of self-defense. This prohibition would fail constitutional muster under any standard of scrutiny. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is therefore unconstitutional. The Court assumes that a license will satisfy Heller s prayer for relief and therefore does not address the constitutionality of the licensing requirement. Assuming Heller is not otherwise disqualified from exercising Second Amendment rights, the District of Columbia must permit him to register his handgun and must issue him a license to carry it in the home. My Notes: Operative Clause in 2nd Amendment is Right of the People . Preforatory Clause simply states a purpose (well regulated Militia being necessary to the security of a free state). Right of the people has only been used in two other places within the constitution. 1st Amendment s assembly and petition clause and the 4th amendments search and seizure clause. 9th amendment uses similar terminology. When the people is used it has been interpreted to reference the individual, not a subset or group. Definition of arms at the time the amendment was written references anything used for an individual s defense. To agree with dissent you would effectively eliminate the use of guns in hunting. Not what the framers intended given the widespread hunting that was practiced throughout the country at the time. The right to keep and bear arms does not guarantee one the right to keep and bear ANY kind of arms they choose just as the right to free speech doesn t guarantee the right for anyone to yell fire in a crowded theater. The prefatory and operative clauses mesh if you understand the history that the framers were living in. England had established tyranny by eliminating the right to bear arms and it was only though the English Bill of Rights that this was eventually reversed. Disposition

26 Constitutional Law Review Prof. Weiner Judicial Review Affirmed. Dissent (Stevens) The Second Amendment was adopted to protect the right of the people to maintain a well regulated militia. It was a response to the concern that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to state sovereignty. Neither the text of the Second Amendment nor the arguments advanced by its proponents evidence the slightest interest by the Framers in limiting any legislature s authority to regulate private civilian uses of firearms. There is no indication that the Framers intended to enshrine the common law right of self-defense in the Constitution. The view in Miller that the Second Amendment protects the right to keep and bear arms for certain military purposes, but does not curtail the Legislature s power to regulate the nonmilitary use and ownership of weapons, is both the most natural reading of the Amendment s text and the interpretation most faithful to the history of its adoption. The majority fails to identify any new evidence supporting the view that the Amendment was intended to limit the power of Congress to regulate civilian uses of weapons. Dissent (Breyer) The Second Amendment protects militia-related interests, not self-defense-related interests. Furthermore, the Amendment permits government to regulate the interests that it serves. Colonial history itself offers important examples of the kinds of gun regulation that citizens would then have thought compatible with the right to keep and bear arms, including substantial regulation of firearms in urban areas, and regulations that imposed limitations on the use of firearms for the protection of the home. Adoption of a true strict scrutiny standard for evaluating gun control regulations would be impossible and I would adopt an interest-balancing inquiry. In applying this kind of standard the Court normally defers to a legislature s empirical judgment in matters where a legislature is likely to have greater expertise and greater institutional fact finding capacity. ------------------------------------------------------------------------------------------------------------Summary of Summaries Class Notes 9.12.11 - Review Thus Far Judicial power. Origins of judicial review. Started with Marbury v. Madison. Enunciated judicial review over other two branches of govt. Marshall consistent with principles as federalist expanded powers of young national court. Marbury v. Madison rests with the understanding as the constitution as law. After tracing origins of judicial review we see expansion of judicial review over judgments by state supreme courts. See Martin s v Hunter s lessee. Re-articulated supremacy clause by stating 25 of judicial act 1789 was unconstitutional. We see federalism at work here. Scope of fed judicial power. Then we see supreme and federal courts that have crafted doctrines that are very protective of autonomy of the states and the vibrancy of an independent state jurisprudence. See this in MI vs. Long. We also saw an outlier case in Bush v. Gore where contrary to adequate and ____ state grounds doctrine, because of fed interest in electing a president (via state legislature) the SCOTUS was allowed to interpret state law as to whether FL supreme court was interpreting it correctly.

27 Constitutional Law Review Prof. Weiner Judicial Review

We also see in Bush v Gore that legislatures don t exist de novo they are created by state constitutions and the state legislature never imagined creating state law without some level of state judicial review. We also see how constitution insulates the judiciary from political influence / popular will. But this causes an issue creating the counter majoritarian rule. The response is that in order to reach the ultimate goal of insulation, this is the only way it can be accomplished. There are ways however that our dempcratic system can control the judiciary. Amendment process. We can alter the meaning of the constitution contrary to the interpretation of the court. Congress can also alter the appellate jurisdiction to SCOTUS. Exceptions clause. Art. III sec. 2. And lower fed courts sec. 1. There are limits however that are external to Art. III. Looking at the amendments you can t strip someone of their equal standing based on 14th amendment. equal protection. Congress also can t assume the role of a judicial decision maker. They can t change jurisdiction to get a specific result see Klein case. In contrast to ex parte McCardel in Klein congress takes jurisdiction away from court in attempting to get the court to decide the case in a specific way. It s clear that congress can change the underlying substantive law that underlines the case. Congress can also alter the jurisdiction of the court as well. Congress however can t alter the SCOTUS or lower fed courts in ways that overstep its legislative role. Hypo Bush v. Gore. Congress says SCOTUS can t hear any case regarding state court decision regarding election laws. Is this constitutional? Look at the test of constitution and look at precedent of previous decisions. Also look at policy implications of the decision. Art. III sec 2 Exceptions clause makes it ok. Authority is plenary total. Class Notes Any doctrine of justiciability based in the constitution CAN NOT be waived. It is mandatory. Doctrine of justiciablity is the who, what and when

Why not make it mandatory for constitutional review prior to implementing the law? 1. A case or controversy has specific facts. A hypothetical is not something that will contain such real world facts and these are what give constitutional complexities to cases and controversies. 2. You draw on the SCOTUS resources that drain them from effectively adjudicating actual cases. Also creates a backlog allowing any bill to be reviewed. 3. You want someone who is effected directly (injured) so that the best arguments are presented. A hypo that s presented will not have the requisite facts and also the implications and fervor that would create the best arguments. And this is why the court cannot offer ANY advisory opinions. Must be a case or controversy (Art. III) Other nations contemplate the word case as a possible hypo not a live dispute. They do look at theoretical issues. Mass. does this as well according to their constitution. The reason these jurisdictions are able to do this is because they have historically not had the level of counter majoritarian concerns the SCOTUS has had.

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A case under federal law MUST be a dispute between adverse litigants and that there s a likelihood that the decision will provide one litigant with some form of relief. Mootness Once the controversy ends there s no reason to hear the case. Except..when the case is capable of repetition yet evading review. Ripeness What if a speech is about to be given and the school policy is that he s not suppose to mention his own religion. The rule is challenged by a student. By the time it reaches the judge the school changes the doctrine. Does the court hear it? No because the event hasn t occurred isn t ripe. Class Notes 9.14.11 sep of powers principal can be violated when there isn t a standing doctrine in place. In requiring a plaintiff to have suffered an injury in fact and to show causation and redressability is to keep the fed courts in their proper role in society and to prevent the court from acting like a legislative body. We also don t want our courts adjudicating abstract controversies no advisory opinions. We don t want the court to adjudicate scenarios that are hypothetical. We need to know how the law operates in the ground in real life. It also gives the adjudicative process to play out over time and to unearth arguments that weren t there in the beginning. See 4th cir dismissal of the Obamacare lawsuit by VA Attorney gen. because of lack of standing. Doctrine of standing has gotten a lot more strict in recent years. Big thing with constitutional conservatives. When you think of constitutional liberals think of the warren court in brown v. board of ed. Where courts played a very strong and assertive role in restructuring American civil life. If you look at pg 91 US v. SCRAP you see a constitutional liberal notion of the proper role of courts. Courts are eager to reach out and adjudicate cases that are at the grey edge of the cases and controversies requirement (injury suffered tenuous at best). That at once allows vindication of the rights of the plaintiffs and at the same time enhances the role of the court (although SCRAP was brought during Burger court there were many warren court left overs). Contrast that with Lujan where the role of federal courts is questioned because of countermajoritarian grounds. A key tenant of constitutional conservatism is to heighten or make stricter your standards for standing. The heightened standard for standard that we see in Lujan fall heavily against public interest litigants. The public interest litigants that seek to impact large structures of issues find themselves shut out of the fed courthouse in the eyes of constitutional conservatives because of the strict standing requirements. This strict standing also effects standing across the board. Both liberal and conservative. Is this a threat to the role of courts? Or is it an appropriate limit on the counter majoritarian institution? The emphasis is that a stricter standing doctrine that is represented from Flast to Hein can insulate entire categories of constitutional violations from federal court review. Class Notes 9.14.11 in Lujan we see administrative law regarding Endangered Species Act this usually is something that Congress passes that is pretty loosely worded and allows for the secretary (in this case the interior) to interpret how they should go about enforcing the law. In this case how should they protect endangered species. Prior to Regan s secretary, any financing of activities that could harm the environment / endangered species in even foreign nations would require consultation with the secretary of interior. Now under Regan, overseas actions taken effecting endangered species do not involve the secretary of interior. This is what the plaintiff is suing over. The case is not about the

29 Constitutional Law Review Prof. Weiner Judicial Review substance of the demand but rather whether the Defenders of Wildlife have standing. Another example of a public organization, you need to have an individual claiming injury in order to have standing. Ecosystem nexus theory is similar to taxpayer standing meaning anyone within the ecosystem can have standing against the secretary of interior, as anyone with taxpayer standing can sue the president or congress. Citizen suit provisions of ESA should give standing to the plaintiffs. Congress has given citizens a procedural way to do this. But does this release them from going through the requirements of standing? You still need to fulfill the steps. Art. III provisions of case or controversy can t be waived. So why does Congress pass such laws? Possibly to bring about debate on the subject? Really it s to give a pathway to citizens on how they actually can get standing through this public advocacy groups. Legislation must also be written well. Very often the case it s not. Class Notes 9.14.11 case that looks at Flast. Funding religious schools. Class Notes 9.14.11 Justiciability doctrines that are crafted by the court itself to limit its authority. Art. III has intrinsic limits cases and controversies as an example. There are also prudential arguments as to what a court should be doing mootness and ripeness. Justiciability doctrine can t be waived. If the plaintiff doesn t have standing he can t be given a hearing in federal court. Period. Standing and political question are both limits that the court places on itself. Standing represents the who of the federal adjudication what kind of plaintiff can bring a case in fed. Court. Standing has both constitutional and prudential foundations. cases and controversies Requirements of Standing: Plaintiff must have: 1) An injury in fact a) The injury must be actual or imminent; and b) The injury must be concrete and particularized (specific to the plaintiff) 2) The actions of the defendant that the plaintiff complains of must have caused the injury 3) The court must be able to redress the problem - redressability Class Notes 9.19.11 Important distinctions Colegrove s complaint dealt with the dilution of strength in an areas voting pool. Same as Baker v. Carr. In Gomillion v. Lightfoot the court saw that the apportionment was put in place to exclude black voters and thus merited review and a decision for plaintiffs. The court tries to draw a line of distinction between limiting the pool and preventing a group from voting. But isn t the effect the same? Class Notes 9.21.11 Several theories of juris prudence. See Chart. (Prof. likes to discuss these by way of Abstract Mode.) There s nothing in the constitution that tells its readers how it should be interpreted. But we know that the constitution does require interpretation. Art. II 2 allows the president to appoint ambassadors. But it doesn t say how they can be fired.

30 Constitutional Law Review Prof. Weiner Judicial Review Art. I 8 allows Congress to regulate commerce between states. Taxes between the states. But there s nothing that speaks specifically to this issue. 14th Amendment equal protection regarding state law. Does it mean that the federal law can prejudice against individuals or groups? Or what does cruel and unusual punishment mean? Nothing specific in the constitution. As you read the chart keep in mind None of the approaches are mandated by the constitution None are required by any law Each approach is linked with a particular view of the counter majoritarian difficulty. Two great camps of constitutional interpretation are Originalism and Non-Originalism. Or Interpretivism and Non-Interpretivism. In Originalism judges look to protect framers original text, original intent, original meaning, or original understanding of the document. These are considered interpretivists because they are interpreting the text itself. They stay within the confines of the document. Non-Originalism judges are willing to protect values that are not stated or implied or part of the framer s original intent. The divide is really about the proper way constitutional meaning should evolve over time. How it should change.

Question: But isn t technology determinative of this as well? Is it a question of being ahead or behind the curve? Or how one doctrine is just slower to move than the other. Fetus being able to live outside the womb in 1st trimester through med technology. Originalists believe that Art. 5 Amendment process is the sole way constitutional meaning can evolve. Non-originalists believe that Art. 5 can but also through the process of interpretation can interpret constitutional meaning can interpret the document over time to protect values of modern day society. Orginalism is by and large is associated with judicial conservatives / federalist society. By no means a conservative constitutional doctrine. There s also liberal originalism. Originalism limits what the court can review and limits judicial power. It s seen as desirable by its advocates because of how it deals with counter majoritarian concern. Benefits of originalism constitution is often unclear. Framer s intent is also often not clear. Difficult to know how framers would have wanted to apply a law or doctrine to a modern day issue. Ex. Does the 2nd amendment apply differently to someone owning a sniper rifle in today s society because of the concern of terrorism? Democracy is a lot more than majority rule. Representative democracy at its core a political unaccountable judicial branch. To believe it s just majority rule is to misunderstand democracy itself.

31 Constitutional Law Review Prof. Weiner Judicial Review Non-originalists respond to the originalist s requirement of only the Art. V amendment process by asking what if the framers intended non-originalism. What if they thought the constitution should be a living breathing document. Originalists respond by saying any other form outside the original document leaves our laws at the whim of our judges who are not accountable to anything. In the absence of interpretive restraint the meaning of these laws are left to unaccountable justices. Interpretive Theories Textualism Black uses this to interpret 1st amendment rights. He doesn t believe in restrictions like shouting fire. No law means no law. This is an absolute in our Bill of Rights. This has the force of simplicity and also has total disregard of all precedent that is contrary to the plain reading of the constitution. It doesn t matter about stare decisis. They don t care what anybody else decided. But how do we read the plain meaning of the text? Ex. The necessary and proper clause of clause 18 in Art. I 8. What does necessary mean? What about the meaning of words and how they shift over time? Do we continue to give the document the same meaning it had in 1787 as it does today? The plain meaning shifts as the language changes as well. Not referencing intent. (that is historical originalism) Struturalism these aren t express in the language itself. The first amendment applies only to the federal govt. specifically Congress. So what about state govts? The president? Can NJ pass a law that abridges the freedom of speech. 14th amendment guarantees no state can deny a citizen due process of law. But is 14th amendment protections of liberty relate to freedom of speech? Black says it does. Scalia uses structuralism pointing out that 2nd amendment s placement in the 2nd place that deals with protection of individual s rights. Historical Originalists Both interpretists. They determine the meaning of the constitutional text through historical analysis. So their focus of the original meaning is on the practices and implementations over time of their adoption shed light on the text and give some sense of what the text meant. They look at notes of framers from Phily Convention, look to the federalist papers, look to as much historical evidence as possible to try and obtain intent of framers. Problems: often the historical info isn t clear. Also this can assume a unanimity on institutions that were actually not in agreement at the time the decisions were made. It also assumes framers intended to freeze the meaning of the constitution to enshrine the practices of 1787 into our fundamental law. Also the case that even if that was the intent, there are constantly new circumstances that arise that don t sit well with the way the original text was written. Precedent (Stare Decisis) O conner J. said regarding Roe in holding the basic principles of Roe liberty finds no refuge in a jurisprudence of doubt . Liberty is based on a reliance that has come before because for it to exist the law must be clear. Danger is you could overemphasize the meaning of that kind of fidelity. ------Non-interpretivists----------- (living constitution) Constitutional Policy see Baker v. Carr. Constitutional Pragmatism. Puts constitutional in its political and social context. Moral Reasoning is that fair? See Ronald Dworkin.

32 Constitutional Law Review Prof. Weiner Judicial Review The modes of constitutional interpretation will dictate how the SCOTUS role will be in adjudication ie judicial review. The originalist has much less freedom in interpreting. It also means less of the individual s interpretation can be imparted to a decision. This seems to be better suited to combating the counter majoritarian dilemma. Non originalists are more comfortable with judicial review of constitutional meaning and judicial power. There are much less interpretive restraints. Means the USC can change over time within the adjudication process beyond the 5th amendment process.