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CONSTITUTIONAL LAW OUTLINE
CH. 1 THE FEDERAL JUDICIAL POWER
A. AUTHORITY FOR JUDICIAL REVIEW
Marbury v. Madison → 1800, Adams loses election against Jefferson. Marbury was appointed as justice before Jefferson's inauguration & the senate confirmed the nominees. Secretary of state Marshall (also judge deciding the case) signed the commission and ordered to deliver them. Jefferson ordered Madison, the new secretary of state, to withhold the delivery of certain commissions, including Marbury who brought an action in the USSC seeking a writ of mandamus to compel him to finalize Marbury political appointment.

Writ of Mandamus: order from a court to a government official ordering to properly fulfill their official duties or correct an abuse of discretion.

ISSUE:

1. Has the applicant a right to the commission he demands? Yes, when the commission has been signed by the president, the appointment made, and the commission has been stamped by the secretary of state; to withhold the commission is an act not warranted by law, but violation of a legal right.
a. Delivery is not required is a custom. If so, why was the brother running to deliver them?
b. Judges have discretion & this question lead to interpretation.

2. If yes, and that right has been violated, do the laws afford him a remedy? Yes, "for every right there is a remedy."
Marshall assumes the remedy is best to come from the judiciary.

3. If yes, is it a mandamus issuing from this court? No, Constitution does not state the USSC has the authority to use a writ of mandamus. Entitle to the writ depends on,
a. The nature of writ
▪ The responsibility of the Court is to decide on the rights of individuals, not to inspect how the executive perform their duties. Questions that in nature are political can never be made in court.
▪ The issue is not the office of the person to whom the writ is directed, but the nature of the thing to be done. If a person performs an act not based on duties authorized by the president and which affects individuals right, then a mandamus is appropriate. This case is a plain mandamus to deliver the commission b. Power of court
▪ The Judiciary Act of 1789 §13 was created by Congress to expand judiciary jurisdiction granting the power to issue writ of mandamus by SC. The Act conflicts with the constitution bc it seeks to expand SC original jurisdiction beyond that granted by Art. III, the supreme law of fed ct jurisdiction. Congress cannot authorize federal courts to hear cases beyond what is specified in
Art. III & fed ct cannot gain jurisdiction by consent.
▪ SC shall have original jurisdiction on cases affecting ambassadors, public ministers, consuls, and when the state is a party. In all other cases, shall have appellate jurisdiction". Marbury does not qualify as any of the figures mentioned above, hence, the court does not have original jurisdiction on this case, only appellate.
▪ Marshall declares the Act as unconstitutional. Because, it is essential of appellate jurisdiction to revise and correct proceedings in a cause already instituted, but to issue a writ to an officer for the delivery of a paper is the same as to sustain an original action for that paper and then seems not to belong to appellate but to original jurisdiction. the authority given by the Act to issue writs to public officers is not warranted by the constitution.
▪ JUDICIAL REVIEW: responsibility of the judicial branch is to say what the law is and if two laws conflict with each other, the courts must decide on the operation of each and must determine which of these conflicting rules governs the case •

CONSTITUTIONAL LAW OUTLINE
Authority for judicial review of state judgments

Martin v. Hunter's Lessee → M claimed ownership of land based on inheritance from a British citizen. US & UK entered into two treaties (federal law) protecting the rights of British citizens who own land in the US. H claimed that VA took the land before the treaties came into effect & M had no valid claim to property. VA COA ruled in favor of H & let the state of
VA take the land. USSC issued a writ of error & reversed claiming the treaty was controlling & validity of inheritance by M.
VA ct declared that USSC lacked authority to review state court decisions due to difference in sovereignty & commands.

Writ of errors: writ issued by an appellate court directing a lower court to deliver the record in the case for review.

ISSUE: whether the SC has authority to review state court decisions? Yes. Structure of the constitution presumes that USSC
may review state ct decisions. It is essential to ensure uniformity in the interpretation of fed. Law.
Cohens v. Virginia → 2 brothers were convicted in VA state ct of selling Dist. Of Columbia lottery tickets in violation of VA
law. Δ sought review in USSC claiming that constitution prevented prosecution from selling tickets authorized by congress.
VA argued SC had no jurisdiction on criminal cases. USSC held that criminal Δ could seek SC review when they claim that conviction violated the constitution.
B. LIMITS ON THE FEDERAL JUDICIAL POWER

1. INTERPRETIVE LIMITS - how the constitution should be interpret
Interpret modes on how judges interpret the constitution (not exhaustive and they do overlap):

Textualism: interpret literal language of the constitution. Emphasizes how the terms of the constitution would be understood by the people at the time the constitution passage/ratification. Objective meaning from the words of the constitution; don't inquire about the intent (it manifest on the face of the language or it isn't) of the drafter.
o Criticism- it can decontextualize ones understanding of the constitution.
Originalism: judge deciding constitutional issues should confine themselves to enforcing norms that are stated or clearly implicit in the written constitution & can only evolve by amendment

Constitution is silent about an issue then it is for the legislature to decide

considers meaning of the constitution as it was understood (by drafter & those who operated the constitution) at the time of its drafting. What was the common understanding around the time of the drafting

constitution text has an objective meaning; differ that they are willing to go beyond the text and look at historical practice;
o Important: they believe what is important is the original understanding of the drafters. There is a reason why amending it is so hard.
Nonoriginalist: important that constitution evolve by interpretation and not only by amendment; evolve to need the meets of society advancing technologically & morally

Language of constitution needs to be translated to modern understanding (i.e. time of drafting 4th amendment there was no understanding of electronic eavesdropping, now you have to translate it into modern context as original meaning are not helpful or restricting oneself to original meaning is not helpful).
Judicial precedent (most common) - constitution means what prior court stated, stare decicis.
Pracmatism: involves waive or balancing the consequences of one interpretation of the constitution against another interpretation.
o Future benefits - it will opt for the interpretation that lead to the best outcome

Extend to which the judiciary should be involved in the question as opposed to the legislative. Judge Byer
Moral reasoning: certain underlined concepts and ideals in the text of the constitution such as equality, equal protection, due process & this concepts should inform our understanding of the constitution. Departure form textualism (closer to literal meaning) Moral looks for the values that animate the text CONSTITUTIONAL LAW OUTLINE
Criticism: allows judges to run wild and pick and chose which value they want to embrace and which language of the constitution they want - too subjective.
o National identity or ethos to explain the constitution- draws from the distinct values in American and using it the court will view the language through those values.
Structuralism: interprets the constitution by looking at relationships from the three branches/ fed gov and the states/ government and individuals . Judge Stevens
Historical practices: of political branches. Help understand how on those times it was looked at.
o

District of Columbia v. Heller → D.C prohibits the possession of handguns inside homes; is a crime to carry unregistered firearms & registration is prohibited. Persons with firearms must carry a license. Chief police may issue license valid for 1 year. Residents are required to keep their lawfully owned guns unloaded and dissembled, unless located in a place of business or used for recreation. Heller is a special police officer authorized to carry gun while on duty. He applied to register gun to keep at home & DC refused. H sued claiming violation of 2nd amendment rights.
ISSUE: Whether a DC prohibition on the possession of usable handguns in the home violates the Second Amendment to the Constitution - Yes.
Respondent argues that it 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.
Scalia: pg. 14 - "naturally" using it to put us at ease that it is his intuitive interpretation.
Amendment II "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"

Operative clause: textual elements together we find that they guarantee the individual right to possess and carry weapons in case of confrontation.
o Right of the people - refers to individual rights, not collective rights. 2nd amendment is exercised individually and belongs to all Americans such as the 4th, 9th and 1st refer to individual rights same as the 2nd. Scalia sees the same term in different constitutional provisions and interprets in means the same thing.
▪ Cannot read operative clauses without prefatory clauses overshadowing it (i.e. well-regulated militia referring to a subset of people v. right if the people individually) - Context matters and it can change the meaning of a phrase because it is used as a collective right on the 1st and 4th amendment.
▪ The people - all members of the political community, not an unspecified subset.
o Keep and bear arms
▪ Arms - "weapons of offence, or armour of defense." Johnson (1773) | "anything that a man wears for his defense, or takes into his hands, or useth in wrath to cast at or strike another." Cunningham
(1771). The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity. Can be military arms but can have broader meaning.
▪ Keep - to retain; not to lose," and "to have in custody." Webster defined it as "to hold; to retain in one's power or possession." Keep arms: have weapons.
▪ Bear arms - the carrying of weapons outside of an organized militia. Ex: 9 states constitutional provisions written in the 18th century established a right for citizens, outside of a militia, to bear arms in defense of themselves and the state.
▪ Possession of weapons and keep of the weapons overarching reason was to be prepared to be called as part of the militia, sure they can use it as self defense but is not why they posses and keep weapons per se. •

CONSTITUTIONAL LAW OUTLINE
Scalia has engaged in textual arguments, used structuralism by comparing to other amendments referring to the relationship between them, interpret the second clause by looking into historical practices.
Prefatory clause

Well-regulated militia
▪ Militia: comprised all males physically capable of acting in concert for the common defense. In colonial America is was a subset of the people (male, able bodied, certain age range)

• DC argued that militia are the state- and congressionally-regulated military forces described in the Militia Clauses as stated in Art. I. however, disagree bc unlike armies and navies, which Congress is given the power to create, the militia is assumed by Art. I already to be in existence.

• Scalia will be creating a right to law-abiding citizen trained to use a weapon (lose collection of individuals)- it is not an individual right but to a collective group of people,
implies state involvement to teach others to learn.

• How does this fit on modern times?

• Well-regulated: proper discipline and training. Harms his argument

Security of a free state: Scalia defines state as the people or polity; meaning "security of a free polity," not security of each of the several States.
▪ Considering other amendments using the word "state" it mean the state as a corporate entity -
inconsistency. The beneficiary of this right is the state, not the people.
Prohibitions on the possession of firearms by:
o Felons.
o The mentally ill.
o Laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.
o Laws imposing conditions and qualifications on the commercial sale of arms.
US v. Miller - important limitation on the right to keep and carry arms: the sorts of weapons protected were those
"in common use at the time." Rights extend only to certain type of weapon' prohibit dangerous and unusual weapons
The inherent right of self-defense has been central to the 2nd Amendment. The prohibition of firearms in the home where the need for defense of self, family, property is stronger fails to meet with what the constitution states.

DISSENT: II Amendment is set out to protect only right to possess & carry firearms in connection with militia.

The Second Amendment was adopted to protect the right of the people of each state to maintain a well-regulated militia. Its purpose was for Congress not to disarm state militias and create a national army and threatening State sovereignty.
In US v. Miller, the Court agreed that the 2nd Amendment protects the right to keep and bear arms for certain military purposes.
The preamble of the 2nd Amendment makes 3 important points: it identifies the preservation of the militia as the
Amendments purpose; explains that the militia is necessary to the security of a free state; and it recognizes that the militia must be well regulated.
The Court concludes its opinion by claiming that it is not proper to change the meaning of rights preserved in the
Constitution. However, the right the Court announces is not preserved in the Second Amendment, it is a product of today's law-changing decision.
Justice Steven, dissents on the grounds of the Second Amendment protects militia-related, not self-defenserelated, interests. Also, the protection the Amendment provides is not absolute. The Amendment permits government to regulate the interests that it serves. CONSTITUTIONAL LAW OUTLINE

2. CONGRESSIONAL LIMITS - congress ability to restrict federal court jurisdiction a. The exception & regulations clause
Article III of the Constitution provides that 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."

• Appellate jurisdiction: power of a court to hear appeals from the decisions of lower courts

• Exception clause: gives Congress the power to make exceptions to the SC of jurisdiction over particular type of cases
Ex Parte McCardle →McCardle, a newspaper editor who was arrested by federal officials for writing a series of newspaper articles that were critical of post-civil war reconstruction & military rule of the south. M filed a petition for a writ of habeas corpus relaying on the Judiciary Act of 1867 which authorized courts to grant habeas corpus to anyone held in custody in the violation of the Constitution or the laws of the US by state or federal gov. In 1868, while M case was pending Congress repeal the part of the statute which gave jurisdiction over M appeal.
*Writ of Habeas corpus: "produce the body" is a court order to a person or agency holding someone in custody, to deliver the individual imprison to the court and to prove a valid reason for its detention.

Whether congress may withdraw jurisdiction from the SC after that jurisdiction has been given? Yes, art. III of the constitution grants the power to congress. SC is without power to review a petition if congress has exercised its authority to limit the court jurisdiction
Art. III § 1 establishes judicial power | §2 original jurisdiction of supreme court & appellate jurisdiction - […] as the congress shall make → does this allow a wholesale prohibition of SC review of fundamental rights? - cannot look at such prohibition in isolation it has to be structurally.
Congress is not trying to take away all of our ability on art. III
Separation of powers as a limit on congress authority

United States v. Klein → 1863 Congress passed a law where individuals whose property was seized during the Civil War could recover it or receive compensation for it if they did not offer aid to the enemy. SC held that a presidential pardon will be enough to fulfil the requirement of the law & Congress passed a law repealing what SC ruled stating that presidential pardon was inadmissible evidence as a pardon without an express disclaimer of guilt was proof that the person aided the rebellion. Congress changed the effect of a pardon it would disadvantage property claimant and it took away SC
jurisdiction

Congress is telling the courts to dismiss cases for lack of jurisdiction. Facts: evidence of pardon, unaccompanied by confession of guilt, cannot proof he did not aid rebellion.
Rule of decision: If SC finds it has to affirm a COA decision in favor of the claimant you have to dismiss the case.
Congress does not have the power to dictate the outcome of any particular case because It would infringe the separation of power structure. The executive has the constitutional authority to pardon offenses by disallowing the full effect of the pardons, Congress attempted to reduce the President's constitutional authority.
Infringes the executive authority as well by interfering with the right to pardon by placing conditions to the president's ability to pardon.
You are telling us or conditioning our jurisdiction on who the winner or loser is on a certain case this is not permitted.

Under exceptions and regulation clause

Cannot restrict hearing cases of infringement of constitutional cases (McCardle)
Congress cannot supply or mandate a rule of decision (Klein). Congress has passed statutes of rules of decisions such as employment discrimination. o

CONSTITUTIONAL LAW OUTLINE
Difference between Klein rule of decision v. other statutes decisions/problem in supplying rule of decision
▪ In Klein Congress is dictating the winner in each instance, it is automatic and the SC loses jurisdiction whenever the winner is not the US government; cannot rule against the US - different than what you find in any statute.

POST KLEIN CASES Robertson v. Seattle Audubon Society → Congress specifies a particular pending case that is trying to effect & passes a statute. Argument is made that this is affecting pending ligation- SC holds that Congress has the power to change the law and is not upsetting any findings the court made on previous laws, it limits the situation where congress makes a new law
- Klein applies in a situation where congress directs the judiciary as to decision making under an existing law and does not apply when Congress adopts a new law.
Bank Markazi v. Peterson → Congress passes a law that allows Americans nationals that have been victim of Iranian terrorism allows them to go after Iranian property in the US. When you get a judgment you get the paper and then you execute by going after the assets- π got a default judgment and are trying to collect the assets that Congress has designated. The bank against who π are trying to levy by trying to get money out bank. SC they are not telling us how to decide bc there are no facts to decide (default judgment as Iran never showed up), the enactment is constitutional and does not violate SC power.

Art. III bars Congress from telling a court how to apply preexisting law to a particular circumstance but Congress may amend a law and make the amendment retroactively applicable in pending cases.
Congress passes a new law it cannot change our previous decision and it can even pass a new law that affects a pending case. Congress cannot override a decision made on constitution. Congress can make the change effective on pending decisions but cannot attempt under an existing law influence the courts decision

Congress can change a decision of a court, its change in the law can impact pending cases

Cannot attempt to change a rule of decision under an existing law.

3. JUSTICIABILITY LIMITS - series of judicially created doctrines that limit the type of matters that federal courts can decide. Only binding in federal courts, not state courts.

Article III §2: Authority of federal courts to hear certain cases - limits on federal judicial power - justiciability doctrine

Mandate doctrines: some are laid out in the constitution such as standing which congress cannot override.
o Discretionary doctrines: based on prudent judicial administration & can be overridden by congress since they are not constitutional requirements such as political question. we should not decided on this matters because there are other branches better situated (congress can overturn them)
Do not confuse "constitutional avoidance principle" (prudential in nature, adopted by the court using its considered judgment about when is appropriate for a court to weigh in on an issue - SC should avoid ruling on constitutional issues, and resolve cases before them on other grounds, only decide constitutional issue as a last resort) with justiciability requirements

Avoidance principle - discretionary - keep them away from justiciability requirement.
▪ AP aids and facilitates the judiciable issues - may be discussed together
Justiciability doctrine lays out the requisites that must be met for any federal court, at any level, to hear a case -
standing, mootness, prohibition of advisory opinion, ripeness and political question
Prerequisites to bring a constitutional claim under federal court:
a. PROHIBITION OF ADVISORY OPINIONS (justiciability issue)
Arises from Art. III language - federal court cannot issue advisory opinion
Requirements

Actual dispute between litigants with real party interest with adverse positions o

CONSTITUTIONAL LAW OUTLINE
There has to be a significant likelihood that the SC decision in favor of one party or the other will result in some change or have some effect.
i. Opinion of the justices→ conflict between France and UK, US adopted a position of neutrality.
Secretary of state asked the SC a list of questions in regards to US neutral position and the effect certain acts of gov. will have on the nations peace - the SC cannot issue advisory opinion for cases, it is not the judges job to advise another branch on actions or controversies;
such job would be extra-judicially duty.
ii. Hayburn's case→ congress passed a law permitting war veterans to file pension claims at US
Circuit Courts and courts were to decide the disability benefit and payment. Justices found this unconstitutional as the duty of making recommendation regarding pensions was not judicial in nature and would violate separation of powers.

Plaut v. Spendthrift farm, Inc → Congress passes statute that allows the reopening of cases that are res judicata
(dismissed under court prior ruling).

Two type of unconstitutional prohibitions of Congress has intended to pass (pg. 43)
o Klein: court refused to give effect to a statute that prescribes rule of decision to the judiciary regarding cases pending.
o Hayburn case: If the executive can ignore what we decided, then we should not even be decided in the first place. Congress cannot vest review of the decisions of Art. III courts in the executive branch.
This case creates a third prohibition of congress - cannot dig up cases from the grave. Congress cannot write a statute to instruct or effect advisory opinions - constitutional statute and cannot be changed by congress.
Art. III establishes a judicial branch with duty to say what the law is, subject to review only by the SC. Congress has violated the separation of powers by retroactively (law that makes punishable an act done prior the passing of the law) commanding the federal courts to reopen final judgment.

Nashville v Wallace → company sought declaratory judgment (court order which determines the rights of the parties without ordering anything to be done or awarding damages) that a tax was unconstitutional burden on interstate commerce - because matter would have been justiciable for a request for an injunction , the suit was capable of federal court adjudication; constitution does not require that a case should present only traditional forms of procedure,
invoking only traditional remedies. So long as a controversy involves real controversy it can be heard/decided.

b. STANDING - WHO? - does π have enough on stake in the case to bring it. Is this the right person?
Standing is the determination of whether a specific person is the proper party to bring a matter to the court for adjudication.

I. Constitutional standing requirements: π must allege

o o

INJURY- he has suffered or imminently will suffer an cognizable injury or threat to a cognizable injury
CAUSATION - link relatively direct between the action and the injury of π (injury is fairly traceable to Δ
conduct)
REDRESSABILITY - is the remedy that π seeking one that would prevent or cure the injury that π is complaining about.

Parts are discretionary and others are mandated by the constitution such as the injury and causation
Allen v. Wright → IRS under its code created a policy that requires schools applying for a tax-exempt status prove that the school is in fact not racially discriminatory. Parents of black public school children filed a class action alleging the IRS is not fulfilling its obligation to deny tax-exempt status to racially discriminatory private schools. Π claim a direct injury from the fact of the challenged Government conduct and injury to their children's opportunity to receive a desegregated education due to the IRS grant of tax exemptions to racially discriminatory schools. Such contributions facilitate the raising

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