Transcript PPT

Constitutional Law I
Limits on the Judicial Power
Aug. 25, 2004
Types of Limits
Interpretive Limits
Statutory Limits
Article III Limits (justiciability doctrines)
Con Law I - Manheim
2
Fall, 2004
Why is judicial power limited?
Federalism
Separation of Powers
Republican theory

Legitimacy of anti-majoritarian body
Bickel: judicial review is a “deviant
institution in American democracy.”
Con Law I - Manheim
3
Fall, 2004
Interpretive Limits
Court 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
Con Law I - Manheim
4
Fall, 2004
Theories of Interpretation
Textualism (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.”
Con Law I - Manheim
5
Fall, 2004
Theories of Interpretation
Textualism
Originalism
Cruel: disposed to inflict pain or
Dynamic/Non-originalism
suffering; causing or conducive to
injury, grief,
or pain values; religion)
Non-Interpretivism
(external
Unusual: not ordinarily encountered;
superlative or extreme of its kind
8th Amendment: “Excessive bail shall not be
required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.”
Con Law I - Manheim
6
Fall, 2004
Theories of Interpretation
Textualism
Originalism (intent)
Dynamic/Non-originalismFramers probably sought
to prohibit
barbaric
Non-Interpretivism (external
values;
religion)
methods of punishment
8th Amendment: “Excessive bail shall not be
required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.”
Con Law I - Manheim
7
Fall, 2004
Theories of Interpretation
Textualism
Originalism (history)
Dynamic/Non-originalism
Non-Interpretivism (external values; religion)
8th Amendment: “Excessive bail shall not be
required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.”
Con Law I - Manheim
8
Fall, 2004
Theories of Interpretation
Cruel: any pain greater than
necessary to accomplish death
Unusual: prohibited in most states
Textualism
Originalism
Dynamic/Non-originalism
Public attitudes and
Non-Interpretivism (external
values; religion)
evolving standards of
decency
8th Amendment: “Excessive bail shall not be
required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.”
Con Law I - Manheim
9
Fall, 2004
Theories of Interpretation
Practices in other countries;
social, scientific, economic,
philosophical, religious, and
personal values; natural rights
Textualism
Originalism
Dynamic/Non-originalism
Non-Interpretivism (external values; religion)
Con Law I - Manheim
10
Fall, 2004
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”
Con Law I - Manheim
11
Fall, 2004
Interpretive Theories of 2nd Am.
“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.”
1. Guarantees the rights of States to
maintain armed militias (federalism)
2. Guarantees individuals the right to keep
firearms (indiv. right)
Further question: Should the right
be an “absolute” or “qualified” one?
Con Law I - Manheim
12
Fall, 2004
Interpretive Theories of 2nd Am.
“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.”
Textualism


Methodology – examine syntax, word choice,
punctuation, structure, logical consistency
Purpose of opening (subordinate) clause:
Qualify independent clause (right to bear arms); or
Merely explain why the (individual) right was enacted
Con Law I - Manheim
13
Fall, 2004
Interpretive Theories of 2nd Am.
“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.”
Textualism


Methodology – examine syntax, word choice,
punctuation, structure, logical consistency
“Bear Arms”
primarily military connotation

“The People”
State militias vs. individuals

Con Law I - Manheim
Compare other uses of “the People”
14
Fall, 2004
Interpretive Theories of 2nd Am.
“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.”
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.”
Con Law I - Manheim
15
Fall, 2004
Interpretive Theories of 2nd Am.
“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.”
1st Amendment – “Congress shall make no law …
abridging the right of the people peaceably to assemble”
“We the People of the United States ... do
9th Amendment
–
“
The enumeration in the
ordain
and
establish
the
Constitution
of
Constitution of certain rights shall not be construed to deny
the United
States
of America.
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.”
Con Law I - Manheim
16
Fall, 2004
Interpretive Theories of 2nd Am.
“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.”
Textualism

Methodology – examine syntax, word choice,
punctuation, structure, logical consistency
 Inclusion in Bill of Rights



Con Law I - Manheim
"the Bill of Rights is not a bill of states' rights"
Except for 10th Amendment
And except for 2nd Amendment ?
17
Fall, 2004
Interpretive Theories of 2nd Am.
“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 (historical context)


Methodology – historical analysis
English history – Bill of Rights (1689)
 Apparently both collective and individual right

Colonial history – same?
Con Law I - Manheim
18
Fall, 2004
Interpretive Theories of 2nd Am.
“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) [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."
Con Law I - Manheim
19
Fall, 2004
Interpretive Theories of 2nd Am.
“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 wellregulated 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
Con Law I - Manheim
20
Fall, 2004
Interpretive Theories of 2nd Am.
“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)


Did "the people" include women, slaves?
What did the framers mean by "arms"?
Con Law I - Manheim
21
Fall, 2004
Interpretive Theories of 2nd Am.
“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.”
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)
"there must be a
 Whether right exists
limit to government
 How strongly to protect it
regulation on lawful
firearm possession"
Con Law I - Manheim
22
Fall, 2004
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 individual 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)
Con Law I - Manheim
23
Fall, 2004
Types of Limits
Interpretive Limits
Statutory Limits
Article III Limits (justiciability doctrines)
Con Law I - Manheim
24
Fall, 2004
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
Con Law I - Manheim
25
Fall, 2004
Statutory Limits on judicial power
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."
Con Law I - Manheim
26
Fall, 2004
Statutory Limits on judicial power
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."
Con Law I - Manheim
27
Fall, 2004
Art. III,
¶ 3: "Trial shall
be
Statutory Limits
on§ 2,
judicial
power
held in the State where Crimes
shall have been committed"
Does Congress have power to define
§ 3: "Noth Person shall be convicted
7 Amend: "In suits at
federal court jurisdiction?
of Treason unless on the Testicommon law, where the
mony
of
two on
Witnesses
… or on
If so, are there any limits
congress'
value in controversy shall
Confession in open Court"
exceed $20, the right of trial
exercise of that power?
What
if congress
the
by jury
shall beabolished
preserved."
 Internal limits
 External limits
lower federal courts? Or the
S.Ct’s appellate jurisdiction?
 Express restrictions
 Implied or structural restrictions (e.g., Separation
of Powers)
Con Law I - Manheim
28
Fall, 2004
Ex Parte McCardle (1868)
Substantive Claim

Military trial of civilians violated const'l rights
Jurisictional 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 prisoners
Cong'l amendment to Supreme Court jdx

Repealed that part of 1867 Act authorizing
appellate review by S.Ct.
Con Law I - Manheim
29
Fall, 2004
Opinion by Salmon Chase
Why is jurisdiction (always) the first issue?
Why doesn't Congress' motive matter?

Might Congress have lawful or unlawful
purposes?
Con Law I - Manheim
30
Fall, 2004
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?
Con Law I - Manheim
31
Fall, 2004
Felker v. Turpin (1996)
Repeal of S.Ct. jurisdiction to review Ct. of
Appeals' decisions in 2nd habeas cases (Antiterrorism & Effective Death Penalty Act)
No interference with S.Ct. authority since
original jurisdiction remains

Original jdx exists because State is a party
Con Law I - Manheim
32
Fall, 2004
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."
Con Law I - Manheim
33
Fall, 2004
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?
Con Law I - Manheim
34
Fall, 2004
Cong. control over Rules of Decision
Congress' authority to make and change
congress must
substantive law
be able to do


For future cases
For pending cases
this, lest laws
become static
 Robertson v. Seattle Audubon Society (1992)
 Change in substantive law vs.
 Directing the interpretation and application of
that law
If congress were able to do
this, it would be deciding the
outcome of a pending case
Con Law I - Manheim
35
Fall, 2004