Constitutional Law Final Exam Outline Barron Spring 2011

Constitutional Law Final Exam Outline – Barron – Spring 2011

FEDERAL JUDICIAL POWER à Judicial Review

I.  Judicial Review

a.  Doctrine stating that the courts have the power to invalidate governmental action which is repugnant to the Constitution because “it is emphatically the province and the duty of the judicial department to say what the law is”

II.  General Information on Judicial Review

a.  Constitution à Silent on Judicial Review

b.  State and Federal courts have explicit power to review and invalidate actions of both the executive and legislative branches (Marbury, Cooper)

c.  Judicial Review applies to Executive Action

i.  Courts may call executive officers to answer for their actions and review those actions as to their constitutionality (Marbury, US v. Nixon)

1.  ***NOTE***

a.  Judicial discretion is precluded when the Executive possesses legal or constitutional discretion, but not when suit involves non-discretionary duties

d.  SCOTUS also has appellate jurisdiction to oversee constitutional issues decided by state court because there is a need for uniformity (Martin v. Hunter Lessee)

III.  MARBURY v. MADISON (1803)

a.  Facts

i.  Jefferson took over the presidency from John Adams but in a last ditch effort Adam’s presidency sought to appoint Federalist members to Justice of the Peace and Government Positions.

ii. Some of those appointments were not delivered including Marbury’s and he passed suit against Madison (Jefferson’s Secretary of State) for the commission.

b.  Marshall J. Opinion

i.  Marbury has a right to the commission because Congress passed a law creating the office, gave him a term, it’s not revocable, it was signed by the President, and sealed by the Secretary of State

1.  It would be improper to withhold the commission

ii. Granting Marbury relief would be a violation of the Constitution because it would require the Court to exercise original jurisdiction in an area not granted

iii.  SCOTUS has power over non-discretionary decisions (duties imposed by Congress), but not over matters that require executive discretion (political matters).

iv.  Only judges can determine constitutionality (Found in 3 Provisions)

1.  Article III § 2

a.  Extends judicial power to all cases in law and equity arising under the Constitution

2.  Supremacy Clause

a.  Supreme Law shall be the law of the Constitution and that is superior to the laws of the Federal Government

3.  Oath Clause

c.  Decision establishes Congress’ power to limit jurisdiction, but it also establishes the power of the Court to invalidate laws that they find unconstitutional

d.  Creation of the Doctrine of Judicial Review

i.  It is the responsibility of the SCOTUS and the Federal Courts to set aside actions of government that do NOT conform to the language of the Constitution

e.  Paradox of Marbury

i.  Marshall says that there must be authority for legislation in the text of the Constitution, but there is NO textual authority for judicial review in the Constitution

IV.  MARTIN v. HUNTER’S LESSEE (1816)

a.  Facts

i.  U.S. confiscated English land in America while the American Revolution took place and Hunter (US) got land of Martin (English)

ii. After a peace treaty was signed America agreed to return lands they had taken

iii.  Martin tried to take back his land, but Hunter refused

1.  Virginia Court of Appeals

a.  The land belongs to Hunter who had title to the land

2.  Supreme Court

a.  Treaty took precedent and the land should be passed over to Martin

3.  Virginia Court of Appeals

a.  Refusal to recognize Supreme Court decision because Article III only gave SCOTUS jurisdiction over the lower Federal Courts (District Level) and thus the Court of Appeals did not fall under SCOTUS’ jurisdiction

i.  Judiciary Act of 1789

1.  Provision giving SCOTUS appellate jurisdiction over decisions from District Courts

ii. Compact Theory of the Constitution

1.  States created the Constitution, hence they are superior to it and only have to abide to it if they consent

b.  Holding

i.  SCOTUS has appellate jurisdiction over the state appellate courts as well as Federal Appellate Courts

c.  Story J. Opinion

i.  Article VI, Cl. 2 à “The Constitution shall be the Supreme Law of the land, and the Judges in every State shall be bound thereby” (Lower court judges bound by the constitution)

ii. Article III, § 2 à “The judicial power shall extend to ALL cases in law and equity, arising under this Constitution, the Laws of the U.S. and Treatises made, or which shall be made, under their Authority”

1.  SCOTUS includes all cases and controversies arising under the Constitution

a.  If VA was to say SCOTUS did not have jurisdiction over them, then they could not hear any Federal Question arguments

2.  It is the case and not the court that gives the jurisdiction

iii.  The Constitution states that the judicial power in the US should be vested in one Supreme Court and in such inferior courts as Congress may ordain and establish

1.  Since lower Federal Courts are optional, if SCOTUS did not have appellate jurisdiction over state courts then they would not have appellate jurisdiction over anything

d.  Johnson J. Concurring

i.  The Court is supreme over persons and cases in terms of judicial power, but isn’t deciding on the matter of asserting compulsory control over state tribunals (Prophetic)

V.  COHENS v. VIRGINIA (1821)

a.  Facts

i.  People arrested for selling DC lottery tickets in VA when the state did not allow lotteries.

1.  People appealed their conviction to SCOTUS

b.  Issue

i.  Does SCOTUS have appellate jurisdiction over criminal appeals coming from the State Supreme Courts

c.  VA Argues

i.  Article 3, § 2, Cl. 2 à “And those in which a state shall be a party, SCOTUS shall have original jurisdiction”

1.  Original jurisdiction precludes exercise of appellate jurisdiction

d.  Marshall J. Decision

i.  Expansive View

1.  Court has appellate jurisdiction over anything arising under the Constitution regardless of who the parties are

2.  To achieve purpose of constitution, criminal appeals must be within SCOTUS appellate jurisdiction

ii. Under Article III the appeals to State Supreme Courts also fall in line with the appellate jurisdiction of SCOTUS

VI.  COOPER v. AARON (1958)

a.  Facts

i.  Arkansas Governor tried to fight integration of schools arguing that states can nullify Federal Constitutional commands if they intrude too much on state sovereignty

b.  Issue

i.  Does SCOTUS have power to bind State Governments (not just state courts)

c.  Holding

i.  Constitution applies to governors

1.  The legislature and governor CANNOT nullify the Constitution

ii. State and Federal Officials take an oath to uphold the Constitution and it is the arena of the court to determine whether something is Constitutional

1.  State officials CANNOT refuse to implement a plan the court has said its constitutional

VII.  Techniques for Constitutional Interpretation

a.  Originalism (Intentionalism) – Bork, Perry

i.  Try to figure out what the people that wrote the Constitution meant by what they wrote

1.  Start with the Constitutional text, but take it based on the history

a.  Then shape it so that it’s relevant today in settling Constitutional issues

ii. Problem

1.  Broader than textualism, but possible multiple views from the same theory

b.  Textualism – Scalia, Thomas

i.  Text is the only subject of inquiry

1.  Although the language may be ambiguous, the text gives us something concrete to hold on to

ii. Problem

1.  Words can change their meaning

c.  Interpretivism – Ely

i.  Courts can interpret the Constitution when the result can be fairly implied or derived from its language

1.  Uses the Constitution as an anchor AND to provide some structure

d.  Non-Interpretivism – Grey

i.  When we have complex words found in the Constitution we should be open to conceding

1.  Fundamental issues in our society are protected by vague phrases and we should concede that SCOTUS relies on norms and other sources

e.  Neutral Principles – Frankfurter

i.  The courts should interpret the Constitution in complete detachment

1.  Look for the most neutral principles

2.  Judges should be free from any kind of result oriented jurisprudence

f.  Passive Virtues – Judicial Restraint

i.  Even when courts have power to act they should be reluctant to do so

1.  Legitimacy on the judiciary depends on its restraint

ii. It’s better for a complex problem to be solved by the Executive and Legislature working together, than the Judiciary itself

g.  Participatory Values

i.  When there is a dispute of law, it is best to combine the view of the Judges with that of the Legislature

FEDERAL JUDICIAL POWER à Limitations on Judicial Review

I.  Limitations on Judicial Review

a.  Types

i.  Textual à Exceptions Clause (Congress can limit jurisdiction)

ii. Constitutional Limitations

1.  Case or Controversy

2.  Standing

3.  Mootness

4.  Ripeness

iii.  Judicial Limitations

1.  Political Question Doctrine

II.  TEXTUAL LIMITATIONS - Congressional Control of Federal Court’s Jurisdiction

a.  Exceptions Clause

i.  Gives Congress power to LIMIT the appellate jurisdiction of the Supreme Court

b.  EX PARTY MCCARDLE (1869)

i.  Facts

1.  McCardle was arrested for disturbing the peace, inciting insurrection, and impeding reconstruction, due to a story he published in his newspaper after the Civil War

a.  He sought the Writ of Habeas Corpus requiring the detaining authority to explain the legal basis for the detention

2.  In the middle of the case Congress exercised the ability to control SCOTUS appellate jurisdiction and repealed law giving SCOTUS appellate review of Habeas Corpus over “Reconstruction Program”

a.  Article III, § 2 à “With such exceptions... as the Congress shall make

ii. Issue

1.  Can Congress take away appellate jurisdiction of SCOTUS in the middle of a case?

iii.  Chase J. Decision

1.  SCOTUS does NOT have jurisdiction because Congress has the right to take away the Court’s power

a.  However, SCOTUS does have Habeas Corpus jurisdiction pursuant to other Congressional statutes that they have not repealed

2.  This case does NOT stand for the proposition that an entire area of jurisdiction can be taken away because that would interfere with divisions of power between branches too much

a.  Since SCOTUS has other Habeas rights the Congress’ decision to take away Habeas Corpus within the purposes of Reconstruction Statutes is ok

iv.  Commentary

1.  McCardle’s Principle

a.  You can have minor withdrawals of appellate jurisdiction by Congress, but NO major severe contractions that would violate Separation of Power

2.  Frankfurter à Congress may withdraw appellate jurisdiction at any time

3.  Bork à McCardle is enigmatic

a.  It is odd that the framers would have couched the general power to control the court in the language of exceptions and regulations

c.  EX PARTE YERGER (1869)

i.  SCOTUS explicitly pointed out that it had Habeas Corpus power under other provisions and could hear the case

d.  U.S. v. KLEINS (1872)

i.  Facts

1.  President Johnson offered pardons to confederates who took an oath of loyalty and they were able to get their land back.

2.  Congress passed a law stating that evidence of existence of a pardon could NOT be used in court proceedings to get land back and taking pardon established guilt

a.  The statute also stated that SCOTUS did not have appellate jurisdiction to hear the case

ii. Holding

1.  SCOTUS struck down the statute

a.  Congress can deprive SCOTUS of jurisdiction, but they CANNOT dictate the result of a case or action, or the effect of a pardon (they CANNOT tell the Court how to decide a case)

iii.  Difference from McCardle

1.  In this case Congress is trying to usurp the power of both branches, telling SCOTUS how to rule and undermining presidential pardon power

iv.  ***NOTE***

1.  Can’t take McCardle too literally (McCardle & Yerger together)

a.  Congress can limit jurisdiction, but they can’t destroy it

b.  Congress can make modest contractions in the appellate jurisdiction of the Supreme Court, but they cannot make major contractions

i.  It would be in violation of the Separation of Powers

v. ***NOTE***

1.  Barron thinks that if Congress tried this today, the court would strike it down as a violation of Separation of Powers

III.  CONSTITUTIONAL LIMITATIONS

a.  Case or Controversy Requirement

i.  Case or Controversy Requirement

1.  Federal Judicial Power granted in Article III is limited to certain defined “cases or controversies” requiring that a case be in “adversary form” that is capable of judicial resolution and that resolution does NOT violate separation of powers

a.  Need present or possible ADVERSE parties throughout the entire litigation

ii. MUSKRAT v. UNITED STATES (1911)

1.  Facts

a.  Congress sets aside land for one group of Cherokee Indians, but then gave the same land to some other Indian Group

i.  What Congress did was adjudicate land to a greater group by adding others to the land given to the first group

b.  Congress then enacted a law providing that Cherokees who objected to the second land conveyance could bring a lawsuit against the U.S.

2.  Holding

a.  SCOTUS dismissed the case for lack of standing due to no case or controversy

b.  For a true “case or controversy” you need the existence of present or possible ADVERSE parties whose contention is brought to the court for adjudication

i.  The U.S. had no interest in the suit and was just trying to get an advisory opinion on the constitutional validity of the law

c.  To bring a successful suit the Cherokees would have to bring a suit of ejectment against someone “in their land”

i.  The real party to this suit would be a member of the second group which was given the land after the Cherokees

b.  Standing

i.  First and Most important Justiciability Requirement

1.  Two types of Standing

a.  Case or Controversy Standing

b.  Prudential Standing (After 3 Requirements have been met)

i.  Even though a case meets the constitutional requirements of standing, the court feels that it’s inappropriate to grant standing as a matter of judicial discretion

ii. Three requirements for Standing

1.  Injury in Fact