con law study guide complete)

8/3/2019 Con Law Study Guide Complete)

http://slidepdf.com/reader/full/con-law-study-guide-complete 1/32

1

Constitutional Law Review

Prof. Weiner

Judicial Review

Exam 3 Parts

1. Basic Doctrines of Constitutional Law

25-50 short answer questions (either you get it or not)

2. Application of Doctrine to Facts

Either Issue Spotter or targeted hypos (either you know it or not)

3. Policy Question

Can be one big one or couple of smaller ones. Synthesize what its all about.

Introduction

United States Constitution (USC) product of war of independence. Brought revolution of social and

political importance in north America. Textual expression of political theory. That theory has altered the

way people live across the globe. Product of a series of democratic compromises of politicians regarding

what the new republic should be. Product of the give and take of the men in 1787. Symbol of our nation.

Icon of civic religion. Culturally important. MOST OF ALL this document is the genetic code on basis of political life of our nation runs. Basic instructions for our common life. But genetic code is

meaningless unless its given expression. It needs to be given life. Its a short and spare document. Not

like a statute or treaty (UCC for example). Its meaningless unless the spare words are given meaning

as the words are tested against realties of political and social conflict that it encounters in the course

of social adjudication.

Article I § 8 see commerce clause regarding several states. Interstate commerce clause. But what is

commerce? Very ambiguous words. See Obamacare. See farmer growing crops above govt. instituted

threshold example. The answers are found in the decisions of SCOTUS cases. The court interprets the

spare language and gives it meaning. It has expressed the language in decisions.

Many of the fundamental certainties under Warren were questioned by the Rehnquist court.

SCOTUS really shapes constitutional interpretation. Judicial Review is the process courts decide if govt.

officials comply with USC. USC is also there to put constraints on our personal freedoms. But Judicial

Review is conducted by appointed officials. Not elected. Room for abuse? SCOTUS has typically been

aware that this is anti-democratic (counter majoritarian dilemma) and thus during Review they try to

mediate rather than aggravate.

Ratification of a written constitution (contra, e.g., England): significance?

The fact that the USC is written is key! Very important. Some countries dont have any written

constitution the UK as an example. By constitution the UK understands their structure of govt.differently than we do. A written constitution demands a theory interpretation ex. How do we know

what commerce means in Art. I Sec. 8. Demands interpretation. We think of USC as a fundamental law

that constrains govt. USC begins with We the people it proclaims from the start that ours is a

Republican form of govt. A republican form of govt. is where the people are sovereign. Their consent is

required to have the government exercise its powers legitimately.

England and the principle of parliamentary supremacy



3


Prof. Weiner

Judicial Review

2. Balances the relationship between the national govt. and the states. Creates the balance of

federalism. See 10th

Amendment any power not enumerated to the Federal Govt. is left to the states.

Why enumerate powers?

3. For the same reasons we have two levels of government (Federal and State) and three branches of

government (Executive, Legislative and Judicial) the powers of each branch are enumerated to clearly

define the roles, and limits of those roles of each branch in preventing an encroachment of power by

one vs. the other. We will see that the way the USC has laid this out is imperfect and requires

interpretation regarding its text starting with judicial review of Marbury .

Article VI, the Supremacy Clause: significance?

4. Fed govt is supreme where it applies see Art. VI supremacy clause. It can only act when the USC

gives it the authority to do so. This helps in establishing the power of the central government in

eliminating the bitter fights between the states with taxes, and interstate commerce. Also limited what

the states could legislate with respect to personal freedoms.

Why was the Bill of Rights at first thought by some to be unnecessary?5. Fed govt is there to guard individual rights. USC creates a floor for individual rights not ceiling.

Framers were worried to list all the rights because they were worried it could perceived as listing only

those rights individuals were guaranteed. But smaller states insisted on a Bill of Rights. 1791

enumerated. First 10 amendments commonly known as Bill of Rights

Article V, amendment process: significance?

6. Why have a constitution and not structure the protection of individual rights through a statute or

treaty? The reason is the ease of change is much more difficult with a constitution. Art 5 of USC goes

through the amendment process. Its not easy. This is to prevent a drift towards tyranny in a time of

crisis.

Which branch would be the final arbiter of constitutional meaning?

7. Who would be the USCs interpreter? This is NOT answered by the USC. This question gives rise to the

notion of JUDICIAL REVIEW (JR). Origins of JR are in Marbury v. Mad ison.

Federal constitution exists along with state constitutions. Significance? Federal constitution

provides a floor for rights, not a ceiling. Federal action presumptively invalid but state action

presumptively valid (see 10th Amendment, to be discussed later in course).

8. State constitutions are significant because they will often times allow for greater freedoms than the

ones guaranteed by the USC. They are also important to make certain the laws of a given state are not

encroaching on the individual rights guaranteed under the constitution remember the USC provides a

floor of individual rights, not a ceil ing. States can expand on these if they choose. Because federal

authority is enumerated and leaves a number of areas of law undetermined by the USC, the state

constitutions are there to fill in the gaps as they see fit so long as they do not violate any guarantees

under the USC. An example might be the powers granted to the state executive something that isnt

mentioned in the USC and is left for the states to decide. Or how local elections are to be held.

Weaknesses of Articles of Confederation Constitutional Convention

Origins and Theory of Judicial Review



4


Prof. Weiner

Judicial Review

Articles of Confederation - was first American constitution fully ratified in 1781 but acted more like

treaty than charter for new nation. No centralized govt. Localities had all power. No executive branch.

More like the UN. States would have to voluntarily follow rules. Often they didnt. Would issue ex post

facto laws and confiscate property. States would tax other states for imports. States w/ ports would

hold other hostage. No national currency made trade and repayment of debts from War of

Independence difficult. Decade later, judicial and legislative branches are formed. Then came

Philadelphia Convention in 1787 that framed USC.

USC distinguished central govt by listing its powers where it was supreme. All other powers

were reserved to states. Electoral College was also put in place to attract best and brightest. Thought

was that through public voting of representatives (who you hope have some intelligence) they would

appoint the best and brightest for president and senate.

1787 USC is submitted to states for ratification. Federalists support it. Anti-Federalists claim it

gave national govt. too much power. Wanted a bill of rights as well. Federalists said listing rights could

be dangerous (are those the only rights that exist?). Both sides agreed that powers given to Congress

and President should be determined by central govt. but Anti Fed thought those powers would be

broadened through interpretation. By 1788 nine states had ratified. By May of 1789 all states had

ratified. G. Washington then appointed NYs John Jay the first Chief Justice after his publication of TheFederalist essays. Much of the first congress was devoted to developing a Bill of Rights that the Anti

Fed wanted. Bill of Rights eventually established a floor for individual rights (passed later in 1791) and

eventually applied those rights to the states through the 14th

Amendment.

What do we know about our constitution?

1. People are sovereign

2. Republican form of govt.

3. Language is purposefully ambiguous

4. System of Federalism national govt and state govt.

Art. I CongressArt. II - Exec

Art. III - Judicial

Fed government can only act when the constitution gives it authority to act. When it acts, the fed govt is

supreme.

---------------------------------------------------------------------------------------------------------------------------------

Judicial Review

Marbury v. Mad ison Cl ass Notes:

Most important case in constitutional law. Marshall announces extraordinary power (the right to reviewlaws issued by Congress Judicial Act) by denying the court to exercise a smaller power (issuing a writ of

mandamus).

Main Idea Marbury v Mad ison establishes the principal of judicial review. Judicial Review is the

principal the federal courts (SCOTUS in particular) can declare acts of congress or actions of exec branch

void because they conflict with the meaning of the constitution. The fact that Marshall says that



5


Prof. Weiner

Judicial Review

Marbury is entitled to a remedy against the Sec. of State Madison, means that the judicial branch can

also review actions of the executive.

Delineation of Judicial Power in Art. III

SCOTUS is established by the constitution itself in Art. III. Lower courts are creatures of congress.

SCOTUS engages in constitutional AND statutory law interpretation. It is important to point out that our

constitutional interpretation is done by our court instead of the legislature or some other elected

orifice.

Fed court justices have life tenure and thus the pressure of politics is removed. This is the added benefit

of not having elected officials involved. They also (based on §1) cannot have their pay docked based on

their decisions. In addition, the justices are elected by the president and then approved by the senate.

This is to make sure that the candidate for justice is qualified. This is also how the fed courts are

appointed. Much less political than elections.

Counter Majoritarian Difficulty in our constitutional system we have politically unaccountable justices

deciding on the legality of the laws enacted or actions taken based on those laws that are enacted by

the reps elected by the people. We have to justify the political insulation we give our justices.

Judicial review (discussion in Article III?) Marbury v. Mad ison (1803): significance? A judicial

coup detát? Sources for Judicial Review Tex of document (lack of text under Art. I §8)

Nothing in Art. III gives SCOTUS explicit power for judicial review. But the constitution does explicitly

go through the enumerated powers of Congress in Art. I § 8. This absence heightens the counter

majoritarian difficulty but also gives credence as to why judicial review is appropriate because it is

NOT an enumerated power to Congress. Many see Marbury v. Mad ison a judicial coup de tat because

of this fact. This might be controversial but also offers safeguards against influence.

Why is the SCOTUS the best place for constitutional review?

SCOTUS is insulated no salary reduction based on decisions made, appointed by president and

approved by Senate (not elected by people), and cant be removed because of decisions. We are less

concerned about the court trampling the will of the people because they are insulated. They are above

politics and dont have to kowtow to the political will of a majority.

A draw back to Judicial review by SCOTUS is the Counter Majoritarian Difficulty when the unelected

SCOTUS can determine the meaning of government. Seems to subvert potentially the will of the

people. The judicial review provision taken up by the court adds to the counter majoritarian difficulty

because its not explicitly mentioned in the constitution. The constitutional questions also make the

people less engaged in the protection of their rights because the constitutional questions are answered

by judges, not political officials. Theres also a question as to the expertise of judges and their ability to

review the vast amounts of subject matter legislation can cover.

Marbury v. Mad ison Synopsis

Revolution of 1800 ushers in anti-federalists. It was thought that the Anti Fed. would do away with

much of what had been established thus far in the central govt. (central bank, currency, standing army,

navy and fed judiciary). In reality Anti Fed wanted to control and confine the Fed courts. Anti Feds were

made up mainly of agricultural land owners. Didnt want the govt telling them how to do business.



6


Prof. Weiner

Judicial Review

Adams feared that popular control could make the central govt. unstable and made all these

appointments to prevent it. Jefferson and the Dem Repubs repealed the 1801 Judicial Act that created

the circuit courts and also eliminated the 1802 term of the SCOTUS (so that they couldnt find the repeal

unconstitutional). Adams attempts to pack the courts with their guys days before they are voted out.

Marbury is appointed justice of peace to District of Columbia and is denied appointment. He

brings suit to SCOTUS because chief justice Marshall was secretary of state under Adams. Marshall is

also a leading member of the federalist party. But Marshall doesnt compel the appointment be made.

He doesnt because he understands the political context that he is operating in. If there is favoritism

seen it undermines the entire system. I also creates a very important precedent judicial review of

legislative power. This is the greater reason. The actions of executive are also up for review by SCOTUS if

its an administrative matter (and not political). Marshall establishes this by saying that Marbury is

entitled to a remedy except the remedy sought (writ of mandamus) is unconstitutional given the courts

original jurisdiction.

Marbury believes that the courts can issue a writ of mandamus through the Judiciary Act of

1789, sec. 13. But section 13 is not all that clear on whether the court can grant the writ in their

appellate jurisdiction. Marshall rejects that reading and argues that sec. 13 gives the court the ability to

issue writs of mandamus in their original jurisdiction granting the court greater power in its original jurisdiction (which is unconstitutional). Marshall must read sec. 13 (an act of Congress) against the USC.

Nowhere in the USC does it allow the expanding SCOTUS original jurisdiction by Congress. The ability for

Congress to alter the courts appellate jurisdiction is clear under Art. III, sec. 2 we have the

Exceptions, and under such Regulations as the Congress shall make. But can Congress alter the courts

original jurisdiction? Marshall says no. There cant be superfluous language in a written

constitution according to Marshall. Thus sec. 13 is unconstitutional (based on the way Marshall reads

it).

Judicial Exclusivity in Constitutional Interpretation

Can the SCOTUS interpretation of the USC be questioned? If no, why can a president pardon a criminal?

The President can also instruct the DOJ not to persecute possession of marijuana. What is the bindingscope of judicial review? The issue is to what degree can the elected branches of Fed and state govts.

disagree with the court on constitutional interpretation?

Significance of Article V for thinking about scope of judicial review

Cooper v. Aaron (1958) pg 19

Governor Faubus of Ark. Looks to enjoin school integration after Brown v. Board of Ed. was decided to

avoid chaos, bedlam and turmoil. Stated Arkansas was not a party to Brown decision and thus wasnt

bound by it. SCOTUS under Warren affirmed circuit to grant injunction.

Holding: USC is the supreme law of the land. If you want to change it, go about doing it according to

USC Art. V. Otherwise, Art. VI of the USC states that the USC binds the states to its rule when the issue

arises under the USC. If a governor could ignore the requirements of the USC the USC itself is

worthless.

Review of State Court Judgments

Martin v. Hunters Lessee pg 23

Denny Martin had received land from the estate of Lord Fairfax that was seized by the Govt. of Virginia.

Virginia govt. had delivered title to Virginians including Hunter. When Martin attempted to claim his



7


Prof. Weiner

Judicial Review

land, Hunter tried to have him removed (action of ejectment). Martin said his title was good based on

the Jay Treaty (settling property claims between GB and American) and the Treaty of Paris of 1783

recognizing Americas independence. Martin prevails at trial but the VA Supreme Court reverses stating

that Martin (an alien) could not receive title to VA property. The VA Act of Compromise which

supposedly had Martin surrender his land to the state was construed differently by SCOTUS thus

allowing aliens to take title of VA property and they remanded the Martin case with instructions for

judgment in favor of Martin.

VA Supreme Court Argument;

1. The VA court recognized the supremacy clause of the USC but SCOTUS had no power at that

time to review VA state decisions regarding federal questions because Congress had not created

lower federal courts for subject matter removal from state jurisdiction and thus a patchwork

of decisions was intended by Congress.

2. VA was sovereign just as the USA was and that the two courts come from separately sovereign

bodies.

Justice Story speaking for SCOTUS stated;

1. ALL CASES arising under the USC are to be under the review of SCOTUS. Otherwise, it wouldread some cases if it meant to exclude the state courts decisions that involve fed. questions.

Art. III, §2 of USC

2. If Congress chose not to create the district courts then by the VA Supreme Courts

interpretation, SCOTUS appellate power (based on Art. III) would have no meaning at the

time the USC was written since there were no lower courts at that time.

3. Art. VI clearly states that the constitution is the supreme law of the land and that states shall

be bound to it if their laws stand in conflict. The SCOTUS power is not based on original

jurisdiction but on appellate jurisdiction. The USC does dictate certain things that the states

must abide by (Art. I, § 10). It is not that the USA and the states are separately and equally

sovereign. The US Congress does have the power to Strip power from state legislatures and

ALL states are under control of the USC. [the lower courts] Are expressly bound to obedienceby the letter of the constitution. Art. VI USC

4. Ultimate decision must rest somewhere and wherever it rests it is susceptible to abuse so the

argument that the SCOTUS is somehow going to be corrupted is a flawed argument.

5. Uniformity of decision is why SCOTUS being the final decider is important. Avoids a patchwork

of decisions riddled with inconsistency.

6. Federal judges have lifetime appointments unlike state judges who are elected and thus

subject to political influence. Thus federal judges are more adept at interpreting USC

consistently.

7. Finally, this was already deliberated at the Philadelphia Convention when framing the USC. For

VA to do this now is deplorable.

Rule of Law. The United States Constitution (Constitution) and the laws of the United States made in

pursuance thereof shall be the supreme law of the land and the judges in every state shall be bound

thereby.

Note: Biggest issue was that the case wasnt really about Fed Law an alien owning state land is more a

state law question.

The Adequate and Independent State Grounds Doctrine pg 29



8


Prof. Weiner

Judicial Review

SCOTUS cannot give advisory opinions because it erodes its authority and wastes the SCOTUSs time.

They want to make an impact i.e. SCOTUS decisions must be binding. Either state court gets it wrong

or write. They cannot change the opinion of the state court if the ruling is the same. If theres an

adequate and independent state law that is not in direct conflict with fed law, and the case is ruled on

based on those precedents, the SCOTUS will not review

Michigan v. Long (1983) pg 30 (Adequate and Independent State Grounds Doctrine) MI had

convicted Long of possession of marijuana after police searched his car on a routine traffic stop. At trial

he was convicted. On appeal SC MI reversed. Michigan appealed to SCOTUS. Justice OConner Plain

Statement Rule - If the states constitution closely mimics the USC but affords the individual more

freedoms than the USC, and the State court decides the issue based on their own law (not USC

version), SCOTUS is not to review. BUT if State court chooses to base holding on USC, SCOTUS has the

right to review. SCOTUS does not have jurisdiction over the case if the state ground is (1) adequate to

support the judgment, and (2) independent of federal law. Michigans constitution closely mimicked

the USC regarding illegal search and seizure (Art. I, §11 of USC) and decision was based on their

constitution. Thus it should be left to the MI state courts to decide based on Adequate and

Independent State Grounds.

Question: If MIs law had violated their own constitution, and the state court stated as such, there

would be no reason for SCOTUS review but if the state court agreed, that decision and state law could

be reviewed by SCOTUS based on the Fed. Constitution. The USC provides a minimum floor for

individual liberties. States are free to allow greater liberties than what is stated in the USC but not

less.

BUT even when state constitutions are written in the same wording as the USC, the state courts can

interpret them differently.

Hypo state SC NJ strikes down law that bans gay marriage. SC NJ opinion says that challenge is broughtciting the state and USC equal protection clauses. The opinion says they base their decision solely on the

NJ constitution. Should the SCOTUS review? No. As long as the law is independent of the language

reflected in the Federal law. If its verbatim they probably could review it.

Bush v. Gore (2000) pg 32

Bush wins vote in FL. Margin is slight. FL law requires recount when that close. On recount Bush wins but

margin is less. FL awards their electoral votes to Bush. Gore sues Bush in state court requesting a

manual recount. Allows manual recount of votes but without giving exact rules with respect to how

votes should be counted (voter intent, hanging chad). Bush petitions SCOTUS to stay recount. Court

grants certiori. Finds that Equal Protection Clause of USC is violated by manual recount void of rules

governing it. Some people who voted will have their votes counted differently than someone in another

part of the state. State legislature should have created the re-count laws. Not for the SC FL to decide.

SCOTUS cites Art. II, sec. 1. The USC nationalizes the FL legislatures election law. Art. II says the states

legislature is to determine the election law for each state. By this deference in the USC to the state

legislature, the SCOTUS believes they can review a state court decision regarding election law to make

sure that decision defers to the state legislature. Majority was in search of finality first. The dissent says

state legislatures would create laws in the context of STATE judicial review.



10


Prof. Weiner

Judicial Review

Art. I, Sec.9, Cl. I & 4 taxes on importation of people into the states by Fed govt.

Art. V (no state can have its representation changed in the senate w/o its consent)

Appointment

Appointing justices to the federal courts is another way to limit the scope of JR (it can also expand it

depending on who is nominated). Sometimes presidents will nominate a justice who will alter existing

law in their favor. Art. II requires that the presidents nomination be confirmed or rejected by the senate

before being appointed. This is a safeguard for allowing the president to appoint whomever without any

controls in place by the opposing party. Depends on presidents tenure as well (see Roosevelt).

Impeachment Art. II allows impeachment of civil officers (this would include any justices) for

conviction of things like bribery, treason and other high crimes and misdemeanors. The term high

crimes and misdemeanors is not fully defined however. Some say it is whatever the majority of House

consider to be a high crime at the time in history. Others say it needs to be an indictable offense.

Impeaching a president is a much different process than a justice who has a lifetime appointment. Also

impeachment cannot be initiated based on a judges political ideology.

Congressional Power to Establish Federal Courts and Determine Federal Appellate Jurisdiction

Art. III assigns judicial power to the SCOTUS and the lower courts but Congress can create lower federal

courts AND eliminate them as well as give and take away jurisdictional power aside from what is said in

Art. III § 2 that all cases under the federal judicial power can come under appellate review by the

SCOTUS (aside from those cases of original jurisdiction). The scope of federal judicial power is limited to

federal question (arising under the USC) or a diversity action (two people from dif. states). Its

jurisdiction is broken down into original and appellate. SCOTUS Appellate jurisdiction is based on Art. III

with such exceptions, and under such regulations as the Congress shall make.

Ex P arte McC ar d le (1869) pg 55

Congress removes appellate jurisdiction for SCOTUS on Reconstruction Acts regarding writ of habeascorpus in the midst of SCOTUS hearing the case on appeal showing an example of Congressional power

to limit appellate jurisdiction of the Court. After the Civil War, Congress imposed military government on

many former Confederate States through Reconstruction Acts which placed McCardle in military

custody for publishing libelous newspaper articles. McCardle filed habeas corpus writ claiming that

Congress lacked authority to establish military government. The circuit court denied McCardles habeas

corpus writ but SCOTUS granted certiorari. After arguments Congress repealed SCOTUS appellate

jurisdiction on any habeas cases regarding Reconstruction Acts both past or present.

Issues

Does Congress have the power to make exceptions to the Supreme Courts appellate jurisdiction in

cases in which it has already granted jurisdiction?

Holding and Rule (Chase)

Yes. The Constitution gives the Supreme Court appellate jurisdiction, but it gives Congress the express

power to make exceptions to that appellate jurisdiction. See Art. III Sec. 2. Provides an important check

on a counter majoritarian institution.When a legislative act is repealed, it is as if it had never existed

except in transactions past and closed. Thus, no judgment can be rendered in a suit after repeal of the

act under which it was brought.Dismissed for lack of jurisdiction.



11


Prof. Weiner

Judicial Review

Dissent the case was postponed and the court waited for legislative interposition. This is not proper.

(What about right to speedy trial?)

Notes

In this case, Congress withdrew the right to hear habeas corpus cases only when the Court got a case

under the Act of 1867 on appeal from a lower court. The Supreme Court would still have been able to

hear an original petition for habeas corpus filed in the Supreme Court. SeeMartin v. Hunters Lessee

where SCOTUS held that it has appellate jurisdiction to review decisions of state courts involving issues

of federal law.

Congressional Limits on Changing SCOTUS Jurisdiction pg 58-59

External Limits:

Internal limits are those implicit to Art. III. External limits are those that fall outside of Art. III - Like

Equal Protection Guarantee or Due Process Guarantee, both of 14th Amend.. These areas of

jurisdiction cannot be limited by Congress. They are External Limits because they fall outside of Art. III.

External Limits come into play when dealing with limits of liberty on classes of citizens (women, blacks,atheists). But what about jurisdictional limits on categories of cases? See abortion debate. Fed Cir.

courts are to follow SCOTUS precedents. State courts are to strike down state laws that are

unconstitutional under Supremacy Clause. But what if Congress limited appeal jurisdiction of SCOTUS on

state decisions regarding abortion (see internal limits and rule by decision). Even more confusing,

what if two states interpret the application of a federal principle (due process for example) differently

and SCOTUS appeals jurisdiction has been removed? What internal limits can be placed within Art. III

by Congress? Does it depend on the original function of SCOTUS by the founders? The opinions on what

that function was is divided. What if Congress eliminated jurisdiction of all lower federal courts. Can this

happen?

Internal Limits:According to Art. III §2 Congress can strip SCOTUS of its appellate jurisdiction. It can control the

jurisdiction of the lower courts as well. But there are limits specifically dealing with separation of

powers issues there cannot be an encroachment on judicial power by Congress. Thus, It is likely that

the SCOTUS would not allow congress to strip the fed courts of jurisdiction entirely over a class of

matters. Congress CANNOT, under the guise of a jurisdiction stripping statute, usurp the judicial

power by creating what the court calls a rule of decision for a class of cases. i.e forcing the court to

decide in a certain way.

Mandatory Federal Jurisdiction Position: Judicial power is vested in the SCOTUS according to Art. III but

what about the power of the lower courts? Is Congress compelled to create lower courts granting them

the same appellate jurisdiction that appears in Art. III? Precedent will show that there are no Internal

Limits in Art. III to provide limits in jurisdiction for lower fed courts. Some believed that constitutional

issues of a certain type should be litigated at the state level (with SCOTUS appellate jurisdiction).

U .S. vs. Klein (1872) pg 63

Klein was administrator of Wilsons estate. In 1863 Congress passed a law that allowed compensation to

be given for property damaged by the Union army during the civil war. Klein applies for compensation

for property damage. Wilson was previously given amnesty and pardon by Pres. Johnson and Klein



13


Prof. Weiner

Judicial Review

Essentially, justiciability in American law seeks to address whether a court possesses the ability to

provide adequate resolution of the dispute; where a court feels it cannot offer such a final

determination, the matter is not justiciable.

Rationale Against Advisory Opinions:

Separation of Powers advisory opinion means its not final. Cant have court in that role

otherwise what decisions are final that they have? Undermines them.

Policy limits - Tendency to misapply law to too broad a category of issues because there isnt a

real conflict to narrow the scope of the decision which isnt a decision at all.

Appropriate Question = justiciable

Inappropriate Question = nonjusticiable

Declaratory Judgments:

These are not advisory decisions. They are binding even if they can be overturned on appeal. 28 USC

§2201 (Declaratory Judgment Act 1934) fed courts can grant declaratory judgment in cases wheretheres an actual federal question or controversy so long as its touching the legal relations of parties

having substantial adverse interests both seeking specific relief. see Aetna Life v. H aworth

Standing to Sue:

Court can only hear case if litigant has proper standing. Must have sufficient stake in controversy to

assert claim. This is done to make sure the one bringing the claim has suffered a real loss, not a random

bystander being opportunistic. You cant sue taxi cab company if the cab runs over your neighbor. This

is not in the constitution but is a doctrine devised by the court in their prudent discretion.

Organizational Standing pg 96:

standing rules apply to organizations (unincorporated associations) so long as;1. People they claim to represent have standing to sue on their own

2. Interests being sued for are applicable to orgs purpose

3. The claim or the relief does NOT require individuals to participate in suit

Ripeness and Mootness pg 96

Courts will not decide issues that arent ripe or are moot

Ripeness violation must be certain (concrete and particularized). Similar to advisory opinion doctrine

of the court avoid abstract controversies. Issue is fit for judicial decision. Plaintiff must have;

1. suffered harm, or

2. be faced with a specific present harm, or

3. be under the threat of specific future harm.

See Lair d v. T atum (1972) Army surveillance of plaintiff caused chilling effect on free speech but

court didnt see as ripe because plaintiff admitted to fear of future punitive action no actual damages

had occurred.

Mootness Need not be decided because events have eliminated plaintiffs stake in controversy .

Mootness is directly related to standing set in a specific time frame. The requisite personal interest

that must exist at the commencement of the litigation (standing) must continue throughout its



14


Prof. Weiner

Judicial Review

existence (Mootness). Ex. Ex P arte Yerger (1869) where MS newspaper editor is imprisoned by

military court over unpaid taxes. Yergers attorneys attempt to have him released under habeas corpus

writ. The imprisonment and military court were all related to Reconstruction Acts. Court releases Yerger

to MS officials for trial in civil court and simultaneously dismiss his appeal. Issue was now moot since he

was released BUT Reconstruction Acts were never adjudicated. Similar outcome to Gitmo cases.

Controversy between parties has clearly ceased to be definite and concrete and no longer touches the

legal relations of parties having adverse legal interests. Mootness is a constitutional requirement

however some say it may no longer be the case because there are exceptions to the rule.

Exception to Mootness: When an issue is capable of repetition yet evades review. Has two

requirements.

1) the life of controversy is too short to be fully litigated prior to termination;

2) theres a reasonable expectation that plaintiff will again be subjected to the same problem.

#2 has been broadened to class actions where the class representative may not face the same issue in

the future but similar class members will. See Roe v. W ad e TX abortion law is challenged by TX woman

but by the time the case was before the SCOTUS she had had her baby. The court said that because

gestation was faster than the time to fully litigate, the usual Mootness of the issue would not apply toRoe in this case because other prego women would likely go through the same thing.

Constitutional Core of Standingy Injury Not Personal (remote, fluctuating)

V alley Forge Christi an College v. Americ ans U nited for Separ ation of Church and St ate (1982) pg 69

Respondent (Americans United) sues as taxpayers against Dept. of Health, Education and Welfare (HEW)

disposing of public surplus property to Valley Forge Christian College (petitioner) they trained students

for Christian service. Respondent claims this violates separation of church and state under 1st

Amendment. HEW gave Valley Forge a closed down hospital claiming that the price was reflective of the

100% public benefit. Lower court in favor of Americans United. SCOTUS grants review.

Issue: Does American United have standing as a taxpayer to bring suit?

Rule of Law: Taxpayer standing is appropriate when the plaintiff challenges an enactment under the

taxing and spending clause and the enactment exceeds specific constitutional limitations on taxing and

spending.

Holding: Reversed. Americans United lacks standing as taxpayers since their claimed injury of a

greater tax burden due to alleged unconstitutional action was remote, fluctuating and insufficiently

personal to constitute injury in fact.

Reasoning: Art. III requires the court review cases and controversies only. Means plaintiff must have

standing. To have standing, plaintiff must have

1. Actual suffered an injury, is suffering or is doomed to suffer an injury (particularized injury).

2. Injury is traceable to defendant actions (causation)

3. Must be a remedy available (redressability)



16


Prof. Weiner

Judicial Review

What about cause of injury? Fairly traceable? Direct cause-in-fact like torts? Would not have

occurred but for defendants actions? Or is it ok to say substantial likelihood that injury wouldnt

have occurred if not for defendant action.

Allen v. Wright Family of black children sue IRS for granting tax exempt status on racially divisive

private schools in Memphis. Plaintiff claimed injury was due to bad public schools in Memphis BUT

court said the bad public schools were not directly caused by IRS thus no cause of injury.

W arth v. Sel d in - Plaintiffs were various organizations that claimed that a local zoning ordinance

excluded persons of low and moderate income from living in a certain community. Defendants

responded by claiming that Plaintiffs lacked standing to bring suit. Court ruled none of the plaintiffs

provided evidence sufficient to show that but for the citys zoning rules, their respective injuries

would not have occurred (no causation). Further, any redress of potential injury was too vague and

not sufficiently concrete to meet the applicable standing requirements.

Congress and Standing: Congress can legislate standing through the wording of legislation. By saying for

example any American citizen you are specifying what the requirements are with respect to an aspectof standing covering a broad base. This casts a wide net and the court has said when grievances effect so

many concretely in an even way, legislation is the better place to remedy it. But when injury results the

courts do respond even when the injury is to masses.

y Causation of Injury (injury was directly related to actions by EPA regardless of impact)

Massachusetts v. E PA (2007) pg 82

MA is claiming injury to its coastal shores through rising sea levels due to greenhouse gasses. They

blame EPA who renounces its responsibility, under the Clean Air Act, to regulate new car emissions of 4

green house gasses including carbon-dioxide. Petitioner challenges MA refusal to regulate gasses based

on §202(a)(1) of Act.

Rule: Plaintiff has standing if it demonstrates concrete injury that is both fairly traceable to the

defendant AND redressable by judicial relief.

Analysis: MA proceeds as a quasi-sovereign entity and is entitled to special solicitude. MAs interest

in its vindication of its citizens takes place in a federal system and in this instance MA has surrendered

some of its sovereignty in entering this federal system for adjudication. Therefore they should receive a

quasi sovereign status. There are different standards of justiciability for such plaintiffs. Particularized

injury to MA is to its coastline and this can be traced directly, although in small part, to EPAs inaction.

Small effects on the injury by inaction satisfy the injury-in-fact and direct causation requirements

of standing. The redress of injury can be remedied by the court by requiring EPA to regulate new

vehicles for greenhouse gases even if that outcome is delayed and limited (because the regulation

would only pertain to newcars). Reversed and remanded.

Dissent: Under normal standing analysis, MAs injury fails the concrete and particularized injury

necessary. The coastlines deterioration as it related to greenhouse gases is tenuous and speculative.

Injuries are not particular enough (cant be to general humanity). Redressability is also weak in that if

EPA is required to govern these gases the impact is negligible due to other countries non compliance.



17


Prof. Weiner

Judicial Review

Finally this kind of redress should be left to the political branches of government. Relaxing the standing

requirements introduces a dangerous precedent.

MA requests parens patriae standing theres a quasi-sovereign interest in addition to interest

of particular private parties. This means that at least one of MAs citizens must satisfy the requirements

of Art. III (case or controversy) as well as it represents the interests of the citizens of MA.

Georgi a v. Tennessee Copper (1907) involved wholesale destruction of forests in GA because of

TN pollutants. Individual land owners suffered and had justiciable cause of action. This case had nothing

to do with standing. Yet majority uses TN Copper as justification suggesting that because MA has quasi-

sovereign interest based on parens patriae it is bequeathed with standing.

y Lack of Standing (tax payer status usually fails standing test, injury not particularized)

Arizona Christi an School Tuition v. Winn (2011) pg 2 of Supplement

States allows school tuition tax credits to its citizens. STOs are tax credits based on donation made by

tax payers to private schools. Many of the schools are parochial (some however are secular). Plaintiffs

seek relief due to divergence of tax revenues to institutions that exclude students based on religion

violating the Establishment Clause of the 1st Amendment USC. Plaintiffs standing is due to its status as

tax payer of AZ. Courts have only limited exception allowing taxpayers standing in adjudicativematters those are established in Fl ast v. Cohen (1968) when fed. govt. looked to use tax revs to

support religious schools. This violated the establishment and free exercise clauses of the 1st

amendment. But this case dealt with expenditure. The case at bar deals with tax deduction. Majority

says the two are dissimilar.

Majority states that tax expenditure in Fl ast is direct injury to tax payer whereas the STO in AZ

are individual donations to schools of the individuals choice. The issue comes down to the number of

buffers between the cause and effect.

Dissent sees the clear cause and effect relationship. The govt. spending on religious

institutions with tax payer money is a clear violation. The govt. allowing an individual not to pay taxes

if they donate their own money to a religious school has a similar effect but is done through different

channels.

See also Fl ast v. Cohen (1968) - Challenge to congressional spending on religious groups (violating

establishment clause) based on tax payer status Standing was justified on the basis that injury was

caused explicitly by being a US taxpayer (spending can only be done under Taxing power of Congress)

and that the spending violates a rights provision in the constitution (freedom of religion/non

establishment clause).The plaintiffs however arent injured in the normal sense they are injured by

virtue of being tax payers. The court had said previously that claiming an injury because of taxpayer

status is not particularized enough.

Contrast With . . .

Hein v. Freed om From Religion Foundation (2007) action as tax payers brought against Office of Faith

Based Initiatives for giving tax payer dollars to faith based groups (they also gave to community groups).

In Hein we have the same type of suit in Fl ast but a different outcome. The court does not extend the

taxpayer standing to issues with the executive branch (Office of Faith Based Initiatives). If they want to

file a suit against the office they must find an individual plaintiff . Youll have to argue that the white

house has forced a disproportionate amount of money from office to religious groups violating the

establishment clause - finding an individual however is next to impossible. So by virtue of the Hein

Doctrine the Office of Faith Based Initiatives is insulated from constitutional review.



18


Prof. Weiner

Judicial Review

------------------------------------------------------------------------------------------------------------------------------

Political Question DoctrinePolitical Questions:

Those issues that should be decided by the other political branches of government that should not bedecided by the court. This is both a constitutional and prudential doctrine. Courts can act only through

legal forums. Political fallout is a mere by-product. The Political Question doctrine divides politics from

law. Gets political discourse out of law.

Two Primary Principles:

Textual (Separation of Powers in the USC) As a constitutional matter, the court will not decide issues

that are committed to other branches of government by the constitution.

Prudential Concerns - Various self imposed policies not found in the constitution that deal with

concerns where the court feels its unwise to adjudicate not necessarily for constitutional reasons. The

biggest being that a lack of judicial standards or precedent for resolving an issue makes the issue a non

justiciable political question.

In determining a political question the Court is asking whether constitutional provisions lend

themselves to interpretation as guarantees of enforceable rights.

SeeMarbury v.Madisons J. Marshall stating that courts only have the ability to act within legal forms

whatever political consequences they produce is a mere by-product of their resolutions. You need

parties who are adversarial and looking for different outcomes

y Representative Democracy a Matter of Equal Protection and is Justiciable

Bak er v. C arr (1962) pg 99

Injunction sought against further elections in TN until reapportionment of state legislature is conducted

based on most recent federal census. 1901 TN constitution states that legislature is supposed to bebased on population of areas within the state but the legislature had never been reapportioned.

Plaintiffs claim this violated the equal protection clause (communities of blacks were not represented).

Plaintiffs claim no redress available in TN state legislature because of the lack of apportionment. Trial

court denied a hearing stating it was a political question that was non justiciable - based this on

Colegroove v. Green where validity of IL congressional districts were questioned because of population.

Court stated that Congress maintained ultimate authority to represent states (Art. IV, §4).

Holding / Rule: Federal courts have jurisdiction to hear a constitutional challenge to a legislative

apportionment. Political right does not equal political question. Political question has nothing to do

with matters touching state governmental organization as in the case at bar.

Analysis:

1 of 6 Factors that must be present to make an issue non justiciable

1. Commitment to another branch of govt. constitutional commitment to one of the other 2

branches of government (not the state governments)

2. Lack of respect for other branches impossible to reach decision without showing lack of

respect to other branches

3. Lack of standards - lack of judicially discoverable standards to resolve the issue



20


Prof. Weiner

Judicial Review

Strands of the Doctrine The 6 standards of non- justiciability

Lack of judicially discoverable and manageable standards is generally interwoven into the first text of

the constitution strand. The 3,4,5 & 6 strands all have to do with possibility of avoiding high costs.

These political questions are usually a hybrid with the other strands. See Goldwater v. Carter regarding

the costs associated with foreign affairs if the court could decide the validity of a Presidents abrogation

of a treaty amount of uncertainty could be disastrous.

y Nonjusticiable Issues (Text of USC shows decision for another branch of govt)

Ni x on v. U nited St ates (1993) pg 106

Plaintiff (Walter Nixon) is a federal judge who was impeached. He challenges the process of

impeachment conducted by the Senate (according to Senate Rule XI) saying it was unconstitutional

because they didnt adequately try him based on Art. I, § 3 ,cl. 6 because it was a limited body of the

senate that participated and not all in the senate heard the evidence. He said try should mean that the

full senate participates and hears evidence. Not just judiciary committee.

Rule: An action is nonjusticiable when the text of the constitution shows a commitment to anotherbranch of government regarding the particular issue OR a lack of judicial standards for resolving the

issue.

Analysis: Structural Reasons Why this is Non Justiciable

1. Impeachments are left to the senates authority based on Art. I §3 senates sole authority.

The rules that spell out the limits of the senators participating (under oath, 2/3 majority in each

house, that the house charges and the senate adjudicates)

2. Checks and balances by the framers to allow this to be justiciable would allow judiciary to

oversee the process of their own being impeached conflict of interest.

Decision: Affirmed nonjusticiable issue

Concurrence Sole power of senate is not to prevent judiciary from interfering but to prevent the

House of Reps from interfering. Secondly, try intuitively means to try the case in a judicial sense and

does in fact represent a judicially manageable standard. Doesnt matter because constitution shows a

clear commitment to another branch and they followed the intent of the framers in their trying.

Non-Justiciable Political Question Issues

Impeachment See Nixon v. U.S. constitutions text indicates this issue is to be resolved by another

branch of government (congress).

Amendment to Constitution See Colman v.Miller (1939) Only congress could determine if a state

had ratified a constitutional amendment. Lack of judicially manageable standards.

Guarantee of Republican form of government see Luther v. Borden (1849) court didnt have criteria

specifying what type of republican government was necessary. Lack of standards.

War Powers Disputes See War Powers Resolution of 1973 after Vietnam. No judicially manageable

standards.



21


Prof. Weiner

Judicial Review

Powell v. McCormac k (1969) - Powell was elected to Congress but was found to have engaged in

deceptive and possibly illegal actions surrounding his service as chairman of Education and Labor

Committee. After reelection to Congress, he was asked to step down and not be sworn in. Powell sued,

alleging the House did not have the constitutional authority to deny his seat when he met the

qualifications set forth for Representatives in Article I of the USC. The Defendants- Speaker of the House

John McCormack, argued that the House has broad powers under Article I to determine the

qualifications of its membership. Court ruled in favor of Powell stating qualifications of House of Reps

was set forth in the Constitution and to hold otherwise would nullify the framers decision to require 2/3

vote for expulsion. Issue is justiciable.

Note the fact that there were judicially manageable standards laid out in the USC made the claim have

merit. Nixons case clearly had the authority going to the Senate under the USC. Thus nonjusticiable.

Gol d w ater v. C arter (1979) Can the POTUS withdraw from a treaty unilaterally? Court says this was a

non justiciable issue because although the constitution says the Senate can ratify a treaty, it is silent on

who may abrogate a treaty. Lack of standards prevents the courts ability from adjudicating. Also

political fallout from a court going against the decision made by president could rattle our allies

presidents word not good???

Hypo - So if a judge is faced with a suit regarding troops sent to Afghanistan without Congress declaring

war, can it be heard? Answer is no. It is a political question. The congress would have the ability to de-

fund the war. If they didnt, the citizens could vote in people who would. So why bring the suit? To bring

it to the forefront of political discourse.

Bush v. Gore (2000) pg 116

FL SC order to manual recount votes without standards was seen as a violation of the FL legislatures

intent of their own legislation mainly not having the final vote completed in a timely fashion based on

federal requirements.

Dissent No evidence that counting of over votes would add legal votes, nor evidence that there was

counting of ballots but not under votes in select counties. The lack of uniform standards in the

recounting is an issue but this should have been remanded to the FLSC for clarification. That it wasnt is

unprecedented.

Question was this a nonjusticiable issue? My thoughts no. USC grants the power of the state

legislatures to determine how the vote is tabulated. That is not another branch of the federal govt.

Given that the act of electing POTUS is a USC provision, the review of whether the state had followed

the USC was a justiciable question but the result was a violation of federalism.

11th Amendment Judicial Limits and State Sovereign Immunity - pg 122

Takes away jurisdiction that was given to federal courts by Art. III. All cases in law and equity. . .

between a state and citizens of another state. . . No state can be sued in either federal or state court

for monetary damages (as opposed to injunctive relief) whether by citizens of another state (clearly in

11th amendment) but also by citizens of the same state (through judicial interpretation) and this pertains

to a state or federal cause of action. A state can still be sued for injunctive relief and this doesnt apply

to cities or towns just states. This gives extraordinary protection to the states. Allows states to ignore

or even circumvent federal law without the risk of a monetary damage reward. BUT there are

exceptions. . .



22


Prof. Weiner

Judicial Review

Exceptions to 11th Amendment

1. A state can be sued when in violation of the 14th amendment (due process or equal

protection) cl .5 allows Congress to enforce these provisions. Any law created by a state in

violation of the equal protection clause for example, would allow suit for monetary damages.

Same for wrongful incarceration (due process violation).

2. A state sovereignty is abrogated when the federal govt. sues the state.

3. Sovereignty can be abrogated if the state chooses to allow it. Why would a state ever allow

itself to be sued for monetary damages? Because the Federal govt pays the state for that

purpose. The fed govt offers the cash for other purposes but as a condition the fed will specify

that the state must agree to be sued under a particular violation. Called Grants of Conditional

Spending.

The 11th

amendment was designed to prevent law suits at the federal level against states based on in

personam jurisdiction, however in recent cases in rem jurisdiction has been allowed to circumvent the11

thamendments sovereign wall applied to the states.

Bankruptcy and In Rem

T N Student Assistance Cor p. v Hood (2004) fed bankruptcy court heard adversary proceeding of

individual against state that held his student loan. Remedy sought was discharge of the loan.

Central VA Community College v. Katz (2006) states acquiesce in a subordination of whatever

sovereignty they had when ratifying the Bankruptcy Clause Congress can change this but has chosen to

treat states as other creditors in bankruptcy cases.

The Officer Suit FictionSee Ex P arte Young (1908) - 11th

amendment does not apply immunity of suit to the individual officer

when they are acting wrongly in an official capacity representing the state. Dichotomy is that immunity

still applies if equitable relief is sought where the state would have to pay for past wrongs.

If a plaintiff wants damages from the state even for constitutional violations the federal courts are

not available unless theres a waiver by the state or abrogation by congress. But a plaintiff can obtain a

federal injunction to stop unconstitutional behavior so long as it is a specific state official that is

enjoined.

Methods of Constitutional Interpretation (pgs 39-47)

Interpretivists vs. Noninterpretivists (aka Originalism vs. Non-Originalism)

Noninterpretivists says we should not attempt to figure out what the text of the constitution means. The

constitution should be a reflection of what our present sense of fundamental justice. Courts should not

be limited to just the words of the document. They should employ external sources in adjudicating

constitutional issues. Interpretivists insist that the only proper form of judicial review is through the

strict reading of the text in the constitution.



23


Prof. Weiner

Judicial Review

Issues with Noninterpretivism How can judicial review be conducted w/o guidance from a written

document? Isnt this wholly authoritarian to allow a judge to impose his moral values in adjudication at

will? But how then do we interpret what the true meaning of the constitution is?

6 Methods of Interpreting Constitution

1) Textual Method what does the constitution say not based on critical thought of meaning but

more generally what is said.

2) Historical Argument two schools. Determining original intent and establishing original meaning of

text.

a) Original Intent some say this allows non elected life appointees to remake the constitution to

reflect their personal preference.

b) Original Meaning focus on original meaning of text itself because intent of framers difficult to

ascertain.

c) Vectors of History placing the documents meaning in historical context and extrapolating how

those historical issues relate to modern day issues. Dynamic way of viewing constitution not

like orig

3) Structural Arguments particular principle or result is implicit within the structures of the branchesof govt.Marshalls argument is that the structure of the constitution is so so that a federal judiciary

can determine constitutional law.

4) Doctrinal Arguments stare decisis is at its weakest regarding constitutional law because it is so

difficult to change a constitutional law decision made by the court previously virtue in legal

stability.

5) Prudential Arguments advancing particular doctrines according to the practical wisdom of using

the courts in a particular way. Judicial review regarding a presidents impeachment as an example

such a review could be catastrophic and destabilizing. Many arguments regarding the separation of

powers are prudential.

6) Cultural Arguments non textual, cultural norms of what is normal, moral, fair. Can be powerful

when used in conjunction with constitutional arguments.

Constitutional Interpretation vs. Constitutional Implementation

Implementation is a political calculation.

Uneven Nature of Judicial Review Tiered Review and the Unequal Status of Constitutional Claims.

Generally 3 levels. Minimal, strict and intermediate.

Rational Basis Scrutiny default level. Court starts assuming govt. action is valid. Challenger has

burden of proving the state action is not rationally related to a legitimate govt. objective.

Strict Scrutiny Govt. action is presumptively invalid. Generally deals with suspect classification (based

on skin color). Govt. has burden of proof to show action is necessary to accomplish compelling govt.

objective. Very difficult standard to meet. Successfully used by using race to end racial segregation. This

also applies to ameliorative laws to help reverse consequences of previous discrimination as well.

Intermediate govt. action has some taint of presumptive invalidity but not enough to invoke strict

scrutiny. Govt. still has burden of proof to show the govt. action is required to accomplish substantial

Govt. purpose. Inherently subjective.



24


Prof. Weiner

Judicial Review

The Right to Keep and Bear Arms (pgs 1193-1213)

Two Schools of Thought much academic interpretation but very little judicial.

1) Right to bear arms in military capacity.

2) Right for individual to keep and bear arms

In DC v. Heller the court announces a constitutionally operative rule but does nothing with respect to

constitutional decision making to determine if a regulation concerning firearms is unconstitutional.

District of Columbi a v. Heller (2008) pg 1193 d ecision regar d ing DCs ban on hand guns in the home.

Facts

Handgun possession is banned under District of Columbia (D) law. The law prohibits the

registration of handguns and makes it a crime to carry an unregistered firearm. Furthermore all lawfully

owned firearms must be kept unloaded and dissembled or bound by a trigger lock unless they are being

used for lawful recreational activities or located in a place of business.Dick Heller (P) is a special police officer in the District of Columbia. The District refused Hellers

application to register a handgun he wished to keep in his home. Heller filed this lawsuit in the Federal

District Court for the District of Columbia on Second Amendment grounds. Heller sought an injunction

against enforcement of the bar on handgun registration, the licensing requirement prohibiting the

carrying of a firearm in the home without a license, and the trigger-lock requirement insofar as it

prohibits the use of functional firearms within the home.

The District Court dismissed Hellers complaint. The Court of Appeals for the District of Columbia

Circuit reversed and directed the District Court to enter summary judgment in favor of the District of

Columbia. The Court of Appeals construed Hellers complaint as seeking the right to render a firearm

operable and carry it in his home only when necessary for self defense, and held that the total ban on

handguns violated the individual right to possess firearms under the Second Amendment. The SupremeCourt granted certiorari.

Issue: What rights are protected by the Second Amendment?

Holding and Rule (Scalia): The Second Amendment 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.

Text of the Second Amendment

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.

Constitutional Construction

The prefatory clause A well regulated Militia, being necessary to the security of a free State

merely announces a purpose. It does not limit or expand the scope of the operative clause the right of

the people to keep and bear Arms, shall not be infringed. The operative clauses text and history

demonstrate that it connotes an individual right to keep and bear arms.

The militia consisted of all males capable of acting together for the common defense. The

Antifederalists feared that the Federal Government would disarm the people in order to disable citizen



25


Prof. Weiner

Judicial Review

militias, thereby enabling a politicized standing army or a select militia to rule. The Antifederalists

therefore sought to preserve the citizens militia by denying Congress the power to abridge the right of

individuals to keep and bear arms.

This interpretation is confirmed by analogous arms-bearing rights adopted in state constitutions

immediately preceding and following the Second Amendment. Furthermore, the drafting history reveals

three proposals that unequivocally referred to an individual right to bear arms. Interpretation of the

Second Amendment by scholars, courts, and legislators from ratification through the late 19th century

also supports the Courts interpretation.

No precedent forecloses this interpretation. United States v. Miller l imits the type of weapons to

which the right applies to those in common use for lawful purposes, but does not limit the right to keep

and bear arms to militia purposes.

The Second Amendment right is not a right to keep and carry any weapon in any manner and for

any purpose. The Court has upheld gun control legislation including prohibitions on concealed weapons

and possession of firearms by felons and the mentally ill, laws forbidding the carrying of firearms in

sensitive places such as schools and government buildings, and laws imposing conditions and

qualifications on the commercial sale of arms. The historical tradition of prohibiting the carrying of

dangerous and unusual weapons supports the holding in United States v. Miller that the sorts of weapons protected are those in common use at the time.

The handgun ban and the trigger-lock requirement (as applied to self -defense) violate the

Second Amendment. The total ban on handgun possession in the home amounts to a prohibition on an

entire class of arms that Americans overwhelmingly choose for the lawful purpose of self -defense. This

prohibition would fail constitutional muster under any standard of scrutiny. Similarly, the requirement

that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for

citizens to use arms for the core lawful purpose of self -defense and is therefore unconstitutional.

The Court assumes that a l icense will satisfy Hellers prayer for relief and therefore does not address the

constitutionality of the licensing requirement. Assuming Heller is not otherwise disqualified from

exercising Second Amendment rights, the District of Columbia must permit him to register his handgun

and must issue him a license to carry it in the home.

My Notes:

Operative Clause in 2nd

Amendment is Right of the People. Preforatory Clause simply states a

purpose (well regulated Militia being necessary to the security of a free state). Right of the people has

only been used in two other places within the constitution. 1st

Amendments assembly and petition

clause and the 4th

amendments search and seizure clause. 9th

amendment uses similar terminology.

When the people is used it has been interpreted to reference the individual, not a subset or group.

Definition of arms at the time the amendment was written references anything used for an

individuals defense.

To agree with dissent you would effectively eliminate the use of guns in hunting. Not what the

framers intended given the widespread hunting that was practiced throughout the country at the time.

The right to keep and bear arms does not guarantee one the right to keep and bear ANY kind of

arms they choose just as the right to free speech doesnt guarantee the right for anyone to yell fire in

a crowded theater.

The prefatory and operative clauses mesh if you understand the history that the framers were

living in. England had established tyranny by eliminating the right to bear arms and it was only though

the English Bill of Rights that this was eventually reversed.

Disposition



26


Prof. Weiner

Judicial Review

Affirmed.

Dissent (Stevens)

The Second Amendment was adopted to protect the right of the people to maintain a well

regulated militia. It was a response to the concern that the power of Congress to disarm the state

militias and create a national standing army posed an intolerable threat to state sovereignty. Neither the

text of the Second Amendment nor the arguments advanced by its proponents evidence the slightest

interest by the Framers in limiting any legislatures authority to regulate private civilian uses of firearms.

There is no indication that the Framers intended to enshrine the common law right of self -defense in the

Constitution. The view in Miller that the Second Amendment protects the right to keep and bear arms

for certain military purposes, but does not curtail the Legislatures power to regulate the nonmilitary use

and ownership of weapons, is both the most natural reading of the Amendments text and the

interpretation most faithful to the history of its adoption. The majority fails to identify any new evidence

supporting the view that the Amendment was intended to limit the power of Congress to regulate

civilian uses of weapons.

Dissent (Breyer)The Second Amendment protects militia-related interests, not self -defense-related interests.

Furthermore, the Amendment permits government to regulate the interests that it serves. Colonial

history itself offers important examples of the kinds of gun regulation that citizens would then have

thought compatible with the right to keep and bear arms, including substantial regulation of firearms in

urban areas, and regulations that imposed limitations on the use of firearms for the protection of the

home.

Adoption of a true strict scrutiny standard for evaluating gun control regulations would be

impossible and I would adopt an interest-balancing inquiry. In applying this kind of standard the Court

normally defers to a legislatures empirical judgment in matters where a legislature is likely to have

greater expertise and greater institutional fact finding capacity.

-------------------------------------------------------------------------------------------------------------

Summary of Summaries

Class Notes 9.12.11 - Review Thus Far

Judicial power. Origins of judicial review. Started with Marbury v. Madison. Enunciated judicial review

over other two branches of govt. Marshall consistent with principles as federalist expanded powers of

young national court. Marbury v. Madison rests with the understanding as the constitution as law.

After tracing origins of judicial review we see expansion of judicial review over judgments by state

supreme courts. See Martins v Hunters lessee. Re-articulated supremacy clause by stating § 25 of

judicial act 1789 was unconstitutional. We see federalism at work here. Scope of fed judicial power.

Then we see supreme and federal courts that have crafted doctrines that are very protective of

autonomy of the states and the vibrancy of an independent state jurisprudence. See this in MI vs. Long.

We also saw an outlier case in Bush v. Gore where contrary to adequate and ____ state grounds

doctrine, because of fed interest in electing a president (via state legislature) the SCOTUS was allowed to

interpret state law as to whether FL supreme court was interpreting it correctly.



27


Prof. Weiner

Judicial Review

We also see in Bush v Gore that legislatures dont exist de novo they are created by state constitutions

and the state legislature never imagined creating state law without some level of state judicial review.

We also see how constitution insulates the judiciary from political influence / popular will. But this

causes an issue creating the counter majoritarian rule. The response is that in order to reach the

ultimate goal of insulation, this is the only way it can be accomplished. There are ways however that our

dempcratic system can control the judiciary. Amendment process. We can alter the meaning of the

constitution contrary to the interpretation of the court. Congress can also alter the appellate jurisdiction

to SCOTUS. Exceptions clause. Art. III sec. 2. And lower fed courts sec. 1. There are limits however

that are external to Art. III. Looking at the amendments you cant strip someone of their equal standing

based on 14th

amendment. equal protection. Congress also cant assume the role of a judicial decision

maker. They cant change jurisdiction to get a specific result see Klein case.

In contrast to ex parte McCardel in Klein congress takes jurisdiction away from court in attempting to

get the court to decide the case in a specific way. Its clear that congress can change the underlying

substantive law that underlines the case. Congress can also alter the jurisdiction of the court as well.Congress however cant alter the SCOTUS or lower fed courts in ways that overstep its legislative role.

Hypo Bush v. Gore. Congress says SCOTUS cant hear any case regarding state court decision regarding

election laws. Is this constitutional? Look at the test of constitution and look at precedent of previous

decisions. Also look at policy implications of the decision.

Art. III sec 2 Exceptions clause makes it ok. Authority is plenary total.

Class Notes

Any doctrine of justiciability based in the constitution CAN NOT be waived. It is mandatory.

Doctrine of justiciablity is the who, what and when

Why not make it mandatory for constitutional review prior to implementing the law?

1. A case or controversy has specific facts. A hypothetical is not something that will contain such

real world facts and these are what give constitutional complexities to cases and controversies.

2. You draw on the SCOTUS resources that drain them from effectively adjudicating actual cases.

Also creates a backlog allowing any bill to be reviewed.

3. You want someone who is effected directly (injured) so that the best arguments are presented.

A hypo thats presented will not have the requisite facts and also the implications and fervor

that would create the best arguments.

And this is why the court cannot offer ANY advisory opinions. Must be a case or controversy (Art. III)

Other nations contemplate the word case as a possible hypo not a live dispute. They do look at

theoretical issues. Mass. does this as well according to their constitution. The reason these jurisdictions

are able to do this is because they have historically not had the level of counter majoritarian concerns

the SCOTUS has had.



28


Prof. Weiner

Judicial Review

A case under federal law MUST be a dispute between adverse litigants and that theres a likelihood

that the decision will provide one litigant with some form of relief.

Mootness

Once the controversy ends theres no reason to hear the case. Except..when the case is capable of

repetition yet evading review.

Ripeness

What if a speech is about to be given and the school policy is that hes not suppose to mention his own

religion. The rule is challenged by a student. By the time it reaches the judge the school changes the

doctrine. Does the court hear it? No because the event hasnt occurred isnt ripe.

Class Notes 9.14.11 sep of powers principal can be violated when there isnt a standing doctrine in

place. In requiring a plaintiff to have suffered an injury in fact and to show causation and redressability is

to keep the fed courts in their proper role in society and to prevent the court from acting like a

legislative body. We also dont want our courts adjudicating abstract controversies no advisoryopinions. We dont want the court to adjudicate scenarios that are hypothetical. We need to know how

the law operates in the ground in real life. It also gives the adjudicative process to play out over time

and to unearth arguments that werent there in the beginning. See 4th

cir dismissal of the Obamacare

lawsuit by VA Attorney gen. because of lack of standing. Doctrine of standing has gotten a lot more strict

in recent years. Big thing with constitutional conservatives. When you think of constitutional liberals

think of the warren court in brown v. board of ed. Where courts played a very strong and assertive role

in restructuring American civil life. If you look at pg 91 US v. SCRAP you see a constitutional liberal

notion of the proper role of courts. Courts are eager to reach out and adjudicate cases that are at the

grey edge of the cases and controversies requirement (injury suffered tenuous at best). That at once

allows vindication of the rights of the plaintiffs and at the same time enhances the role of the court

(although SCRAP was brought during Burger court there were many warren court left overs).Contrast that with Lujan where the role of federal courts is questioned because of counter-

majoritarian grounds. A key tenant of constitutional conservatism is to heighten or make stricter your

standards for standing. The heightened standard for standard that we see in Lujan fall heavily against

public interest litigants. The public interest litigants that seek to impact large structures of issues find

themselves shut out of the fed courthouse in the eyes of constitutional conservatives because of the

strict standing requirements. This strict standing also effects standing across the board. Both liberal and

conservative. Is this a threat to the role of courts? Or is it an appropriate limit on the counter

majoritarian institution?

The emphasis is that a stricter standing doctrine that is represented from Fl ast to Hein can insulate

entire categories of constitutional violations from federal court review.

Class Notes 9.14.11 in Luj an we see administrative law regarding Endangered Species Act this usually

is something that Congress passes that is pretty loosely worded and allows for the secretary (in this case

the interior) to interpret how they should go about enforcing the law. In this case how should they

protect endangered species. Prior to Regans secretary, any financing of activities that could harm the

environment / endangered species in even foreign nations would require consultation with the

secretary of interior. Now under Regan, overseas actions taken effecting endangered species do not

involve the secretary of interior. This is what the plaintiff is suing over. The case is not about the



29


Prof. Weiner

Judicial Review

substance of the demand but rather whether the Defenders of Wildlife have standing. Another example

of a public organization, you need to have an individual claiming injury in order to have standing.

Ecosystem nexus theory is similar to taxpayer standing meaning anyone within the ecosystem can

have standing against the secretary of interior, as anyone with taxpayer standing can sue the president

or congress. Citizen suit provisions of ESA should give standing to the plaintiffs. Congress has given

citizens a procedural way to do this. But does this release them from going through the requirements of

standing? You still need to fulfill the steps. Art. III provisions of case or controversy cant be waived. So

why does Congress pass such laws? Possibly to bring about debate on the subject? Really its to give a

pathway to citizens on how they actually can get standing through this public advocacy groups.

Legislation must also be written well. Very often the case its not.

Class Notes 9.14.11 case that looks at Flast. Funding religious schools.

Class Notes 9.14.11

Justiciability doctrines that are crafted by the court itself to limit its authority. Art. III has intrinsic limits

cases and controversies as an example. There are also prudential arguments as to what a court shouldbe doing mootness and ripeness. Justiciability doctrine cant be waived. If the plaintiff doesnt have

standing he cant be given a hearing in federal court. Period.

Standing and political question are both limits that the court places on itself. Standing represents the

who of the federal adjudication what kind of plaintiff can bring a case in fed. Court. Standing has

both constitutional and prudential foundations. cases and controversies

Requirements of Standing:

Plaintiff must have:

1) An injury in fact

a)

The injury must be actual or imminent; andb) The injury must be concrete and particularized (specific to the plaintiff)

2) The actions of the defendant that the plaintiff complains of must have caused the injury

3) The court must be able to redress the problem - redressability

Class Notes 9.19.11

Important distinctions Colegroves complaint dealt with the dilution of strength in an areas voting

pool. Same as Baker v. Carr . In Gomillion v. Lightfoot the court saw that the apportionment was put in

place to exclude black voters and thus merited review and a decision for plaintiffs. The court tries to

draw a line of distinction between limiting the pool and preventing a group from voting. But isnt the

effect the same?

Class Notes 9.21.11

Several theories of juris prudence. See Chart. (Prof. likes to discuss these by way of Abstract Mode.)

Theres nothing in the constitution that tells its readers how it should be interpreted. But we know that

the constitution does require interpretation. Art. II §2 allows the president to appoint ambassadors. But

it doesnt say how they can be fired.



30


Prof. Weiner

Judicial Review

Art. I §8 allows Congress to regulate commerce between states. Taxes between the states. But theres

nothing that speaks specifically to this issue. 14th

Amendment equal protection regarding state law.

Does it mean that the federal law can prejudice against individuals or groups? Or what does cruel and

unusual punishment mean? Nothing specific in the constitution.

As you read the chart keep in mind

None of the approaches are mandated by the constitution

None are required by any law

Each approach is linked with a particular view of the counter majoritarian difficulty.

Two great camps of constitutional interpretation are Originalism and Non-Originalism. Or Interpretivism

and Non-Interpretivism.

In Originalism judges look to protect framers original text, original intent, original meaning, or original

understanding of the document. These are considered interpretivists because they are interpreting the

text itself. They stay within the confines of the document.

Non-Originalism judges are willing to protect values that are not stated or implied or part of the framers

original intent.

The divide is really about the proper way constitutional meaning should evolve over time. How it should

change.

Question: But isnt technology determinative of this as well? Is it a question of being ahead or behind

the curve? Or how one doctrine is just slower to move than the other. Fetus being able to live outside

the womb in 1st

trimester through med technology.

Originalists believe that Art. 5 Amendment process is the sole way constitutional meaning can evolve.

Non-originalists believe that Art. 5 can but also through the process of interpretation can interpret

constitutional meaning can interpret the document over time to protect values of modern day society.

Orginalism is by and large is associated with judicial conservatives / federalist society. By no means a

conservative constitutional doctrine. Theres also liberal originalism.

Originalism limits what the court can review and limits judicial power. Its seen as desirable by its

advocates because of how it deals with counter majoritarian concern.

Benefits of originalism constitution is often unclear. Framers intent is also often not clear. Difficult to

know how framers would have wanted to apply a law or doctrine to a modern day issue. Ex. Does the 2nd

amendment apply differently to someone owning a sniper rifle in todays society because of the concern

of terrorism?

Democracy is a lot more than majority rule. Representative democracy at its core a political

unaccountable judicial branch. To believe its just majority rule is to misunderstand democracy itself.



32


Prof. Weiner

Judicial Review

The modes of constitutional interpretation will dictate how the SCOTUS role will be in adjudication ie

judicial review. The originalist has much less freedom in interpreting. It also means less of the

individuals interpretation can be imparted to a decision. This seems to be better suited to combating

the counter majoritarian dilemma.

Non originalists are more comfortable with judicial review of constitutional meaning and judicial power.

There are much less interpretive restraints. Means the USC can change over time within the adjudication

process beyond the 5th

amendment process.

con law study guide complete)

Documents