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interpretation

VIEWS: 2 PAGES: 32

									              Constitutional Law I

         Limits on the Judicial Power

                 Jan. 20, 2004



Spring 2004
Types of Limits
 Interpretive Limits
 Statutory Limits
 Article III Limits (justiciability doctrines)
Why is judicial power limited?
 Federalism
 Separation of Powers
 Legitimacy of anti-majoritarian body
     Bickel: judicial review is a “deviant
     institution in American democracy.”
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
Theories of Interpretation
 Textualism
 Originalism (framers’ intent; historical context)
 Non-originalism (organic evolution)
 Free-wheeling (external) values
              Capital Punishment

 8th Amendment: “Excessive bail shall not be
 required, nor excessive fines imposed, nor cruel
 and unusual punishments inflicted.”
Theories of Interpretation
 Textualism
 Originalism
                                  inflict pain
 Non-originalism disposed toor conduciveor
              Cruel:
              suffering; causing               to
              injury, grief, or values
 Free-wheeling (external)pain
                 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.”
Theories of Interpretation
 Textualism
 Originalism (intent)
 Non-originalism        Framers probably sought
 Free-wheeling (external) values barbaric
                        to prohibit
                             methods of punishment


 8th Amendment: “Excessive bail shall not be
 required, nor excessive fines imposed, nor cruel
 and unusual punishments inflicted.”
Theories of Interpretation
 Textualism
 Originalism (history)
 Non-originalism
 Free-wheeling (external) values


 8th Amendment: “Excessive bail shall not be
 required, nor excessive fines imposed, nor cruel
 and unusual punishments inflicted.”
Theories of Interpretation
                   Cruel: any pain greater than
 Textualism        necessary to accomplish death
 Originalism       Unusual: prohibited in most states

 Non-originalism
                           Public attitudes and
 Free-wheeling (external) values standards of
                          evolving
                                      decency


 8th Amendment: “Excessive bail shall not be
 required, nor excessive fines imposed, nor cruel
 and unusual punishments inflicted.”
Theories of Interpretation
 Textualism         Practices in other countries;
                    scientific, economic, social,
 Originalism        philosophical, religious, and
                    personal values
 Non-originalism
 Free-wheeling (external) values
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.
 “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)

           Should the guarantee be
          “absolute” or “qualified”?
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 word choice, syntax,
     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
    militia vs. the States vs. the People
      Compare other uses of “the People”
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.”
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 …
      “We the People the people peaceably do
 abridging the right of of the United States ...to assemble”
 9th Amendment – “The enumeration in the
      ordain and establish the Constitution of the
 Constitution of certain rights shall not be construed to deny
       United others retained by
 or disparage States of America. 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.”
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 word choice, syntax,
     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 – begs the question
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?
      Would an individual right be couched in mandatory
       terms?
    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
               Pennsylvania convention: “That the people have a right
    Not         to bear arms for the defence of themselves and their own
included in     State, or the US, or for the purpose of killing game; and no
Cummings'       law shall be passed for disarming the people or any of them”
  analysis
               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."
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 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
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"?
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
      Does individual right to bear arms protect against
       government tyranny today?
    Contemporary social considerations
      Cost-benefit analysis
           Whether right exists           "there must be a
                                         limit to government
           How strongly to protect it
                                         regulation on lawful
                                         firearm possession"
Types of Limits
 Interpretive Limits
 Statutory Limits
 Article 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
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."
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."
             Art. on 2, ¶ 3: "Trial power
Statutory Limits III, § judicial shall be
                   held in the State where Crimes
                   shall have been committed"
 Does Congress have power to define
                   § 3: "No Person shall be convicted
 federal court jurisdiction?
                          7th Amend: "In suits at
                   of Treason unless on the Testi-
                          common law, where the
                   mony of two on congress'on
                                 Witnesses …
 If so, are there any limits in controversy or
                          value                shall
                   Confession in open Court"
 exercise of that power?  exceed $20, the right of trial
                          by jury shall be preserved."
   Internal limits
   External limits
     Express restrictions
     Implied or structural restrictions (e.g., Separation
      of Powers)
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.
Opinion by Salmon Chase
 Why is jurisdiction (always) the first issue?
 Why doesn't Congress' motive matter?
    Might Congress have lawful or unlawful
     purposes?
 Can Congress exercise its lawful authority to
 keep the S.Ct. from performing an essential
 constitutional function; e.g., judicial review?
    Structrual limitation – interference w/ co-equal
     branch?
    A problem in McCardle?
Felker v. Turpin (1996)
 Repeal of S.Ct. jurisdiction to review Ct.
 of Appeals' decisions in 2nd habeas cases
 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 … the Supreme Court shall,
     on appeal, 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; hence
       the outcome of a pending case

								
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