Intro, Legal Interp. Tools, & Judicial Review Test Outline
- Structure of Const
- Ct resolve issues
- If political quest's, then not justiciable
- Quest's of insulation
- Entity of govt w/pwr / auth. 2 act
- Sep. of Pwr (S/P) issues
- Set by the Const
- Limit ct's ability 2 create / find rts not in Const.
- Approaches of Analysis
- Interpretist v. Non interpretivist approaches, etc.
Legal Interp. Tools
- Need Tools 4 Predictability & Practicality
- Doc of Sources (Internat. Approach)
- Means of est'ing candidate 4 a rule it's a rule & more
sources 4 support, better
- Meta Rules
- Rule about rules 2 how 2 id. rules
- Rule derived from the text is the rule
- Prob's b/c unreliable concl. in terms
- Neutral Princ's
- Princ's applied neutrally so follow even if dislike result
2 safeguard against polit. judging & limit naked pwr
- Formalism v. Realism
- Formalism: law predictable by text & indicia of intent
b/c apply law 2 facts & get ans.
- Leg. Realism: law unpredictable b/c other factors affect judges
- Textualism / Interpretivism
- Subst. Const. law legit only by ref. 2 the text
- Judge's discretion limited 2 the text
- Plain meaning rule: If Const. text dispositive & no interp.
req'ed no extrinsic ref.
- Open Text Const. then interp.
- But not tell where 2 look & still need 2 dec. what's clear
& unclear 4 interp.
- Originalism / Intent of the Framers (Part of
- Look 2 framers' intent 2 i.d. meaning of text if ambiguous
- Prob's b/c Const. can mean whatever they want & need 2
ref. 2 intent
- Custom when framers gov'ed, then high wt. b/c reflect framers'
views & govt. structure
- Legal Realism (LR)
- Analyze law as behav. scientist not as participants
- Other factors influence judges & law so focus not on words
but identity of judges (actors), polit. soc. context, conseq's
of dec's, etc.
- Human behav. unpredictable so law unpredictable
- Factual Indeterminacy where can gen. / narrow the facts 2
- Normative Indeterminacy where limit alt. tools & law
- Critical Legal Studies (CLS)
- Similar 2 LR b/c of indet'cy theories
- Basic Concept of Both LR & CLS
- Law not the only factor in jgmt
- However judges' discretion not unlimited so not compl'ly ignore
text / intent b/c of checks w/in the sys
Fed. Govt'al Acts
- Marbury v. Madison
- Rt. 2 Commission in the Case
- Textualist approach not dispositive
- Art. 2 §2: not about commission but req that Pres. nominate
& Sen. consent
- Act of 1789 §13: proced.
- Not Every Rt. Lends 2 Remedy / Enforceability
- Rts of K but no remedy like gambling debts b/c of pub. policy
- Polit. quest.'s R nonjusticiable so no nec. remedy
- Litigant Not Entitled 2 Remedy / Writ of Mandamus
- Writ of mandamus dir's pub. official 2 do something
- Nat. of the writ det's the entitlement not the identity of
- Imply S/P doc where fed. govt div'ed 2 3 branches by stating
if nondiscretionary & simply enforcing the statute, then justiciable
& no S/P prob. but if discretionary then nonjusticiable b/c
- Limited & Exhaustive Orig. Jxn of Sup. Ct. by Art
- Ambassadors, other pub. ministers & consuls, admiralty
& mariX jxn, US party
- Orig. jxn in ambassador b/c of for. rel. & similarly 4
admiralty b/c conflict of int. among states
- Can expand only by Amend. not by statutes
- Exceptions & Appellate Jxn: Art 3 §2
- Applicable only 2 appellate jxn
- Act of 1789 §13 UnConst.
- Marshall construed as expanding orig. jxn
- Can't expand orig. jxn of Art 3 b/c expressio unius
- Surplussage if interp'ed otherwise so elevate substance over
- Hence law repug. 2 Const. so void
- Law o.k. if interp. Const. only guiding not binding but Marshall
- Jud. Pwr 2 Rev.
- Const. text most imp. but not always dispositive
- Can arg. Jud. got auth. b/c of oath but so does Pres. &
- Arising under cases arg. but jxnal pwr not same as invalidating
- Big Issues
- Sup Ct's jxn 2 grant the request / mandamus
- Final arbiter of the meaning of Const.
- Application of Textualism
- Article 3 §2: grants Sup. Ct. jxn 2 resolve cases arising
under the Const. but grant of jxn not same as being final arbiter
so can interp. either way
- Article 6, Sup. Clause: Const. trumps other laws but not say
Sup. Ct. final arbiter
- Prob's w/Textualism
- No hierarchy of sup. among treaties, statutes, & Const.
in the text
- No explicit grant of final arbiter 2 Sup. Ct.
- Application of Orig.
- Pre-Phil.:Coke in Dr. Bonham's Case where C/L superior 2 Parliament
v. trad. Eng. judges not strike down statutes 4 intent of framers
- Phil: Luther Martin @ Convention of jud. rev. but
- Not know what context he stated of people oppose/support /
who hear him
- Verification prob. b/c no official minutes, secret mtng, &
Madison notes & diary discrepancy
- Dec. who the real framers R b/c states ratified so consid.
- Post-Phil: Papers & Case
- Fed. papers read widely but Madison, Hamilton, & Jay had
specif. views so prob. of intent
- Eakin v. Raub PA Case of 1825 not accepted Marbury Case
- Framers' Axns
- Jefferson not present @ conventions so his intent may B dif.
- Act of 1789 §13
- Lots of people from Phil. Convention drafted the act so invalidating
seems 2 odds esp'ly when Marshall wasn't @ the Convention
- Application of Leg. Realism (See lec. 5 &
- Real Actors: Thomas Jefferson & John Marshall, Dem &
Fed. so ideological dispute
- Philosopher of masses, decentralized govt & 4 states but
lived like aristocrat
- Believer of 1st Amend.
- Influenced Wash. 2 est. trad. of Pres. recog'ing for. govt
w/o Sen. consent
- Feared Marshall
- Ideological elitist but lived like a slob
- Hero from XYZ affair
- Valley Forge influenced him 4 philos. of strong fed. govt
- Intro'ed writing single opinions, debated well, & greatest
influence in Sup. Ct.
- Regarded Jefferson as coward
- Soc. & Polit. Background
- Peaceful transfer 2 another party & Fed. dec'ed 2 survive
by appt'ing into Jud.
- Pinkney impeached & 1802 Sup Ct term abolished so Fed.
saw impeachment of Sup Ct as real threat
- Sen not coop'ed w/Marbury & est'ed precedence so had proof
prob. of est'ing as recipients of Pres. appt'ments but Marshall's
bro called in so o.k.
- Atty Gen Levi Lincoln est'ed pleading 5th Amend.
- Conseq's of Dec.
- Seemed as if only 2 choices that petitioners had no rt. /
had rt. so Jeff. must deliv. but Jeff. would disobey so either
way Jeff. wins
- Marshall soln of lec. Jeff., est. Jud. superiority, &
polit. win by doing it so can't B ans'ed / overturned: est. statute
giving orig. jxn invalid b/c repug. 2 Const. & Sup Ct's job
2 declare what's repug. although Pres. should've deliv'ed
- Factual Indeterminacy
- No explicit holding of the case but started w/pertinent facts
& textualism & ended w/Sup Ct as final arbiter & contextualism
so infer 4 possible holdings
- Narrowest that Cong. Act expanding Sup Ct's orig. jxn unConst.
- Statute in Cong. Act in violation of Const. void & Sup
Ct can say so
- Any govt act violating Const. invalid
- Broadest that any act of any govt incl'ing exec, leg., jud.,
& state violating Const. is invalid
- Cooper v. Aaron
- Ark. arg'ed Brown Case in dif. state so not binding on Ark.
leg. & govt by reinterp'ing Marbury
- Marbury & Fed Jud Sup.
- Reaff'ed Marbury & fed jud supreme
- Arg's that leg'or also took oath 2 uphold Const.
- But can't say Sup Ct. wrong so leg. b/c Const. intended 2
- Print dec's so bind on more than just the parties
- Pres. can't disobey law 4 rsns of unConst. b/c had opp. 2
State Govt'al Acts
- State Interposition
- Doc. & Background
- Belief by Madison & Jeff. who thought that state govts
can interpose btwn fed & indiv's
- KY & Virg. Resolutions drafted 4 this purpose
- Civil War resolved the issue & states can't interpose
- Fed. Supremacy
- Fed trumps state if contradiction b/c of Sup. Clause
- Martin v. Hunter's Lessee (Martin got land by
Eng. lord & Hunter by Virg. Act)
- Virg's Arg's: Judge Roane
- Quest. of state law b/c of prop. so no fed. law
- US Sup Ct's appellate jxn over state ct by Jud Act 1789 §25
unConst. b/c Sup Ct can't B last resort of state law
- Inhere state sov.
- Fed pwr may B abused 2 abolish state cts
- Sup Ct Response: Justice Story
- Gov'ed by fed law not state so Jay Treaty trumps Virg. statute
b/c fed. sup.
- Jud Act 1789 §25 Const.
- Lwr fed cts R creatures of Cong. but if Cong. didn't est.
them, then Const. says appellate jxn must extend over state cts
by Sup Cts
- State sov. inconsistent w/Const. b/c Const. has lots of limitations
on state sov.
- Pwr may B abused no arg. against its existence
- Can't rest Const. interp. in indiv. state b/c need uniformity
- Can't escape fed. rev. by calling it state quest
- Adeq. & Indep. State Grounds
- Doc. that State Not Subj. 2 Fed. Rev.
- If adeq. & indep. state grounds 4 a dec. in state ct.
then not subj. 2 rev. by fed
- State dec. rests solely on state law w/o any fed. quest.
- Michigan v. Long
- Two Prong Test (O'Connor)
- Explicitly state indep. state grounds
- Not rely on fed. cases
- Rsns 4 Test
- Michigan relied on fed. cases so if Sup Ct doesn't correct,
then might stand 4 something it's not
- Rsns 4 Using Fed Cases by States
- State B/R's similar 2 Fed B/R in evolution of state B/R's
- But state may have more expansive B/R's like abortion
- Exception Clause: Cong'al Pwr 2 Narrow Sup Ct's
Jxn (Art 3 §2)
- Structure Not Permit Cong. 2 Destroy Another
Branch (Charles Black)
- Cong. can't abolish Sup Ct's appellate jxn / cut into Sup
- Although must draw lines, Const. not say where
- Internal Limitation
- Limited by Const. & B/R 2 apply consistently
- US v. Klein & Ex Parte Garland, Ct said Cong. can't impose
what cert. facts mean / view accepting Pres. pardon as disloyalty
b/c Pres. pwr 2 pardon excl. (Art 2)
- Cong. can't escape applications inherent in Const. by calling
appellate jxn as exception
- External Limitation
- Const not grant lwr fed cts so Cong. can abolish all so can
- Movement 2 limit jxns in 1980's fizzled out b/c of political
- Common Theme of Exception Clause Cases
- Cong. try 2 restrain ct from dec'ing cases b/c Cong. can abolish
lwr cts altogether
- Ex Parte McCardle (US govt held him so sought
writ of habea corpus)
- Reconstruction Acts
- McCardle arg'ed 5,6, & 1 amend. rts violated by them but
Cong. repealed statute of appellate jxn so Sup Ct can't strike
Reconstruction Acts down
- Avoid Striking Reconstruction Acts Down
- Rsn'ed that Cong. limited jxn by Exception Clause / S/P Doc.
- Not choose 1 over other
- Pract'ly, didn't want 2 B impeached
- Ex Parte Yerger
- McCardle Not Exception Clause Case
- No jxn'al auth. contested in McCardle & Cong. victory
Justiciability: Political Quest. Doc
- Concept that ct. use 2 justify not hearing cert. cases
- Hard 2 id & dif. manifestations b/c dep. on which judges
- Sources & Concepts of Polit. Quest. Doc.
- Const. Preclusion / Mandate: Art 3
- Implied in Art 3 that Ct can't dec. polit. quests such as
impeachment clause involving S/P / plenary pwrs
- Prudential Strand
- Not in Const. but not want 2 hear cases b/c imprudent 2 hear
- Origin in Marbury Dicta
- S/P Doc Breached if Dec. Polit. Quest
- Cert. polit. quest. assigned by Const. 2 other branched so
Ct's can't substitute their jgmt
- Stand. is that other branch's dec's R discretionary so judges
can't substitute but if nondiscretionary, that's carrying out
adm. fn's so subj. 2 rev.
- Baker v. Carr (1962: apportionment case w/urban
v. rural controversy; Ff'er & Harlan)
- Stand. w/6 Factors 4 Det'ing Nonjusticiability
- Const. commitment 2 another branch
- Lack of jud'ly discernable & manageable stand's
- Nonjud. discretion if dec.
- Lack of respect 4 other branches if dec. (Vietnam War)
- Unusual need 2 adhere 2 polit. dec.
- Potential embarrassment (for. policy)
- Nonjusticiability as Poor Soln of Political Process Breakdown
- Prob. w/polit. process so not solve prob. by not jud'ly intervening
- Process breakdown gen'ly justification 4 jud. resolution
- Rsns 4 Nonjusticiability
- Mathematical quamire not unConst'al (Ff'er) which has some
- Jud. restraint b/c want people 2 dec. by pub. conscience (Ff'er)
but sys. is malfn'ing so need another sys
- Dec'ing would undermine pub. confidence & leg. of jud.
(Harlan) but not 2 dec. is 2 dec. (avoiding Vietnam War dec's)
- Luther v. Borden
- Rt 2 Rep. Govt
- Not know how 2 flesh that out
- Powell v. McCormack (House Rep. did bad things
but Sup Ct said can't excl)
- Justiciable Issue Here
- Const. text not confer either House 2 go beyond reqt
- But text says each house judge qulification of own members
& this dec. embarrassing so not always adhere 2 6 factors
- Goldwater v. Carter (Carter's recog. of China
& Cong. silence)
- Polit. Quest.
- Four said it was & implied Ct shouldn't intervene when
disputes btwn branches
- Powell's Concurrence
- Case not ripe 4 resolution b/c Cong. said nothing & Goldwater
didn't get maj.
- Brennan's Dissent
- Jud. discretion 2 phrase the antecedent quest. as narrow /
broad so polit. quest. by formulating quest's that way
- Rehnquist's Summary of 6 Criteria into 3
- Cong'al Limitation in Designating Justiciable Cases
- Prudential v. Const'al Limit
- Cong. can only tell Ct. 2 dec. cases when prudential but can't
tell Ct. 2 dec. cases if Const. limits Ct.
- Factors 2 Consid. 4 Justiciability
- Polit. Quest. Inversely Rel'ed on Views of Jud. Activism
- If like jud. activism then dislike polit. quest. but if like
jud. restraint then like polit. quest.
- Judges v. Elected Officials
- Dec. on which quest's 2 B dec'ed by elected people / judges
- Arg. Against Nonjusticiability
- Not 2 Dec. Is 2 Dec.
- Jud. law making & judges affect policy making process
by not being involved
- Reflector v. Creator of Cultural Norm of Judges
- Although say not dec. b/c judges not elected so reflect culture,
Ct has dec'ed cases like Brown v. Board of Ed. on morally high
- LR's Position that No Basis 4 Polit. Quest. Doc.
- Not follow Const. preclusion strand
- Baker's 6 criteria 2 vague & real rsn not given (Larry
v. Reagon ex.)
- Hence, all discretionary & no textual basis
- Prof. Glennon's Concl.
- Princ. rsn 2 not have polit. quest. is structural rsn of giving
stability 2 sys & gov'al actors will know the rules
- Favor striking statutes down except 4 minority rt. & Const.
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