Constitutional Law I Limits on the Judicial Power Aug. 25, 2004

Constitutional Law I

Limits on the Judicial Power

Aug. 25, 2004

Fall, 2004Con Law I - Manheim 2

Types of LimitsInterpretive LimitsStatutory LimitsArticle III Limits (justiciability doctrines)


Why is judicial power limited?

FederalismSeparation of PowersRepublican theory Legitimacy of anti-majoritarian body

Bickel: judicial review is a “deviant institution in American democracy.”


Interpretive LimitsCourt is ultimate arbiter of const’l meaning How it interprets the vagaries of

constitutional text is of paramount importance

Basic functions of our constitution Structural – defines and limits gov’t power Substantive – confers and protects indiv.

rights


Theories of InterpretationTextualism (linguistic meaning; structure)Originalism (framers’ intent; historical context)Dynamic/Non-originalism (organic evolution)Non-Interpretivism (external values; religion)

Capital Punishment

8th Amendment: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”


Theories of InterpretationTextualismOriginalismDynamic/Non-originalismNon-Interpretivism (external values; religion)


Cruel: disposed to inflict pain or suffering; causing or conducive to injury, grief, or painUnusual: not ordinarily encountered; superlative or extreme of its kind


Theories of InterpretationTextualismOriginalism (intent)Dynamic/Non-originalismNon-Interpretivism (external values; religion)


Framers probably sought to prohibit barbaric methods of punishment


Theories of InterpretationTextualismOriginalism (history)Dynamic/Non-originalismNon-Interpretivism (external values; religion)





Cruel: any pain greater than necessary to accomplish deathUnusual: prohibited in most states

Public attitudes and evolving standards

of decency



Practices in other countries; social, scientific, economic, philosophical, religious, and personal values; natural rights


United States v. Emerson (1999)

18 USC § 922(g)(8)“It shall be unlawful for any person … who is subject to a court order … to possess … any firearm or ammunition”


Interpretive Theories of 2nd Am.

1. Guarantees the rights of States to maintain armed militias (federalism)

2. Guarantees individuals the right to keep firearms (indiv. right)

“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.”

Further question: Should the right be an “absolute” or “qualified” one?



Textualism Methodology – examine syntax, word choice,

punctuation, structure, logical consistency


Purpose of opening (subordinate) clause:Qualify independent clause (right to bear arms); orMerely explain why the (individual) right was enacted



Textualism Methodology – examine syntax, word choice,

punctuation, structure, logical consistency “Bear Arms”

primarily military connotation “The People”

State militias vs. individuals Compare other uses of “the People”




1st Amendment – “Congress shall make no law … abridging the right of the people peaceably to assemble”

9th Amendment – “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

10th Amendment – “The powers not delegated to the US by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”




1st Amendment – “Congress shall make no law … abridging the right of the people peaceably to assemble”

9th Amendment – “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

10th Amendment – “The powers not delegated to the US by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”


“We the People of the United States ... do ordain and establish the Constitution of the United States of America.



Textualism Methodology – examine syntax, word

choice, punctuation, structure, logical consistency Inclusion in Bill of Rights

"the Bill of Rights is not a bill of states' rights" Except for 10th Amendment And except for 2nd Amendment ?




Originalism (historical context) Methodology – historical analysis English history – Bill of Rights (1689)

Apparently both collective and individual right

Colonial history – same?




Originalism (framers’ intent) [who’s intent?] Methodology – drafting / ratification debates

Pennsylvania convention: “That the people have a right to bear arms for the defence of themselves and their own State, or the US, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them”

Vermont/Virginia proposals: "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."




Originalism (framers’ intent) Methodology – drafting & ratification debates

Madison Proposal - " The right of the people to keep and bear arms shall not be infringed; a well-armed and well-regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms, shall be compelled to render miliary service in persoin."

The Federalist Papers talked only of collective right 5th Congress (1797) never mentioned 2nd amd. in debating if

merchant ships had right to carry arms




Originalism (framers’ intent) Did "the people" include women, slaves? What did the framers mean by "arms"?




Non-Originalism & External Values Organic (evolving) constitution

Discover underlying principles: Does individual right to bear arms guard against gov’t tyranny today?

Contemporary social considerations Cost-benefit analysis (consequentialism)

Whether right exists How strongly to protect it


"there must be a limit to

government regulation on lawful firearm possession"


US v. Emerson, 270 F.3d 203 (2001)

5th Circuit reverses (opinion) The 2nd Amendment … protects individual

Americans in their right to keep and bear arms whether or not they are a member of a militia.

That “the 2nd Amendment does protect indi-vidual rights, does not mean that those rights may never be made subject to any limitations”

We conclude the order supports the deprivation of defendant's 2nd Amendment rights.

Certiorari denied (cert. petition)

http://www.ejfi.org/PDF/Emerson_appeal_03-10104.pdf

http://news.findlaw.com/hdocs/docs/gunlawsuits/emersonus502sgopp.pdf


Types of LimitsInterpretive LimitsStatutory LimitsArticle III Limits (justiciability doctrines)


Statutory Limits on judicial power

Does Congress have power to define federal court jurisdiction?If so, are there any limits on congress' exercise of that power?

Court strippping



Does Congress have power to define federal court jurisdiction?Supreme Court Original jurisdiction Appellate jurisdiction

Exceptions and Regulations clause"In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make."



Does Congress have power to define federal court jurisdiction?Lower Federal Courts Existence and jurisdiction

"The judicial power … shall be vested in … such inferior courts as the Congress may from time to time ordain and establish."



Does Congress have power to define federal court jurisdiction?If so, are there any limits on congress' exercise of that power? Internal limits External limits

Express restrictions

Art. III, § 2, ¶ 3: "Trial shall be held in the State where Crimes shall have been committed"§ 3: "No Person shall be convicted of Treason unless on the Testi-mony of two Witnesses … or on Confession in open Court"

Implied or structural restrictions (e.g., Separation of Powers)

7th Amend: "In suits at common law, where the value in controversy shall exceed $20, the right of trial by jury shall be preserved."

What if congress abolished the lower federal courts?

Or the S.Ct’s appellate jurisdiction?


Ex Parte McCardle (1868)Substantive Claim Military trial of civilians violated const'l rightsJurisictional route 1789 Act: federal courts could issue writs of

habeas corpus for federal prisoners 1867 Act: federal courts could issue habeas

corpus to both federal and state prisonersCong'l amendment to Supreme Court jdx Repealed that part of 1867 Act authorizing

appellate review by S.Ct.


Opinion by Salmon ChaseWhy is jurisdiction (always) the first issue?Why doesn't Congress' motive matter? Might Congress have lawful or unlawful

purposes?


Ex Parte McCardle (1868)Can Congress exercise its lawful authority to keep the S.Ct. from performing an essential constitutional function; e.g., judicial review?


Felker v. Turpin (1996)Repeal of S.Ct. jurisdiction to review Ct. of Appeals' decisions in 2nd habeas cases (Anti-terrorism & Effective Death Penalty Act)No interference with S.Ct. authority since original jurisdiction remains Original jdx exists because State is a party


U.S. v. Klein (1871)Seizure of rebel property Recovery upon proof that owner had not

offered aid or comfort to the enemy President Johnson issued many pardons See Art. II, § 2, ¶ 2 – "The President … shall have Power

to grant Reprieves and Pardons for Offences against the United States"

Act of 1870"Provided, That no pardon or amnesty granted by the President … shall be admissible in evidence on the part of any claimant … or considered by an appellate court … the Supreme Court shall have no further jurisdiction of the cause, and shall dismiss the same for want of jurisdiction."


U.S. v. Klein (1871)Cong'l control over S.Ct. jdx Does it matter what purpose for

withdrawal? To force decisions in favor of United States In cases sub judice - "prescribe a rule for the

decision … in cases pending before us." Con congress control jdx by prescribing

rules of evidence? Inteference with core Art. III function

Cong'l control over Presidential power Does Act of 1870 interfere with President's

pardon power?


Cong. control over Rules of Decision

Congress' authority to make and change substantive law For future cases For pending cases

Robertson v. Seattle Audubon Society (1992)

Change in substantive law vs. Directing the interpretation and application

of that law

congress must be able

to do this, lest laws become static

If congress were able to do this, it would be

deciding the outcome of a pending case

Documents

Constitutional Law I Limits on the Judicial Power Aug. 25, 2004