1. Constitutional Law I Limits on the Judicial Power Aug. 25, 2004

2. Fall, 2004Con Law I - Manheim2 Types of Limits Interpretive Limits Statutory Limits Article III Limits (justiciability doctrines)

3. Fall, 2004Con Law I - Manheim3 Why is judicial power limited? Federalism Separation of Powers Republican theory Legitimacy of anti-majoritarian body Bickel: judicial review is a “deviant institution in American democracy.”

4. Fall, 2004Con Law I - Manheim4 Interpretive Limits Court is ultimate arbiter of const’l meaning How it interprets the vagaries of constitutional text is of paramount importance Basic functions of our constitution Structural – defines and limits gov’t power Substantive – confers and protects indiv. rights

5. Fall, 2004Con Law I - Manheim5 Theories of Interpretation Textualism (linguistic meaning; structure) Originalism (framers’ intent; historical context) Dynamic/Non-originalism (organic evolution) Non-Interpretivism ( external values; religion) Capital Punishment 8 th Amendment: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

6. Fall, 2004Con Law I - Manheim6 Theories of Interpretation Textualism Originalism Dynamic/Non-originalism Non-Interpretivism (external values; religion) 8 th Amendment: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Cruel: disposed to inflict pain or suffering; causing or conducive to injury, grief, or pain Unusual: not ordinarily encountered; superlative or extreme of its kind

7. Fall, 2004Con Law I - Manheim7 Theories of Interpretation Textualism Originalism (intent) Dynamic/Non-originalism Non-Interpretivism (external values; religion) 8 th Amendment: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Framers probably sought to prohibit barbaric methods of punishment

8. Fall, 2004Con Law I - Manheim8 Theories of Interpretation Textualism Originalism (history) Dynamic/Non-originalism Non-Interpretivism (external values; religion) 8 th Amendment: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

9. Fall, 2004Con Law I - Manheim9 Theories of Interpretation Textualism Originalism Dynamic/Non-originalism Non-Interpretivism (external values; religion) 8 th Amendment: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Cruel: any pain greater than necessary to accomplish death Unusual: prohibited in most states Public attitudes and evolving standards of decency

10. Fall, 2004Con Law I - Manheim10 Theories of Interpretation Textualism Originalism Dynamic/Non-originalism Non-Interpretivism ( external values; religion) Practices in other countries; social, scientific, economic, philosophical, religious, and personal values; natural rights

11. Fall, 2004Con Law I - Manheim11 United States v. Emerson (1999) 18 USC § 922(g)(8) “It shall be unlawful for any person … who is subject to a court order … to possess … any firearm or ammunition”

12. Fall, 2004Con Law I - Manheim12 Interpretive Theories of 2 nd Am. 1. Guarantees the rights of States to maintain armed militias (federalism) 2. Guarantees individuals the right to keep firearms (indiv. right) “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.” Further question: Should the right be an “absolute” or “qualified” one?

13. Fall, 2004Con Law I - Manheim13 Interpretive Theories of 2 nd Am. Textualism Methodology – examine syntax, word choice, punctuation, structure, logical consistency “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.” Purpose of opening (subordinate) clause:  Qualify independent clause (right to bear arms); or  Merely explain why the (individual) right was enacted

14. Fall, 2004Con Law I - Manheim14 Interpretive Theories of 2 nd Am. Textualism Methodology – examine syntax, word choice, punctuation, structure, logical consistency “Bear Arms”  primarily military connotation “The People”  State militias vs. individuals Compare other uses of “the People” “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.”

15. Fall, 2004Con Law I - Manheim15 Interpretive Theories of 2 nd Am. 1 st Amendment – “Congress shall make no law … abridging the right of the people peaceably to assemble” 9 th Amendment – “ The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” 10 th Amendment – “The powers not delegated to the US by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” “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.”

16. Fall, 2004Con Law I - Manheim16 Interpretive Theories of 2 nd Am. 1 st Amendment – “Congress shall make no law … abridging the right of the people peaceably to assemble” 9 th Amendment – “ The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” 10 th Amendment – “The powers not delegated to the US by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” “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.” “We the People of the United States... do ordain and establish the Constitution of the United States of America.

17. Fall, 2004Con Law I - Manheim17 Interpretive Theories of 2 nd Am. Textualism Methodology – examine syntax, word choice, punctuation, structure, logical consistency  Inclusion in Bill of Rights "the Bill of Rights is not a bill of states' rights" Except for 10 th Amendment And except for 2 nd 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.”

18. Fall, 2004Con Law I - Manheim18 Interpretive Theories of 2 nd Am. Originalism (historical context) Methodology – historical analysis English history – Bill of Rights (1689)  Apparently both collective and individual right Colonial history – same? “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.”

19. Fall, 2004Con Law I - Manheim19 Interpretive Theories of 2 nd Am. Originalism (framers’ intent) [who’s intent?] Methodology – drafting / ratification debates  Pennsylvania convention: “That the people have a right to bear arms for the defence of themselves and their own State, or the US, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them”  Vermont/Virginia proposals: "A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." “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.”

20. Fall, 2004Con Law I - Manheim20 Interpretive Theories of 2 nd Am. Originalism (framers’ intent) Methodology – drafting & ratification debates  Madison Proposal - " The right of the people to keep and bear arms shall not be infringed; a well-armed and well- regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms, shall be compelled to render miliary service in persoin."  The Federalist Papers talked only of collective right  5 th Congress (1797) never mentioned 2 nd amd. in debating if merchant ships had right to carry arms “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.”

21. Fall, 2004Con Law I - Manheim21 Interpretive Theories of 2 nd Am. Originalism (framers’ intent) Did "the people" include women, slaves? What did the framers mean by "arms"? “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.”

22. Fall, 2004Con Law I - Manheim22 Interpretive Theories of 2 nd Am. Non-Originalism & External Values Organic (evolving) constitution  Discover underlying principles: Does individual right to bear arms guard against gov’t tyranny today? Contemporary social considerations  Cost-benefit analysis (consequentialism) Whether right exists How strongly to protect it “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.” "there must be a limit to government regulation on lawful firearm possession"

23. Fall, 2004Con Law I - Manheim23 US v. Emerson, 270 F.3d 203 (2001) 5 th Circuit reverses (opinion)opinion The 2nd Amendment … protects individual Americans in their right to keep and bear arms whether or not they are a member of a militia. That “the 2nd Amendment does protect indi- vidual rights, does not mean that those rights may never be made subject to any limitations” We conclude the order supports the deprivation of defendant's 2nd Amendment rights. Certiorari denied (cert. petition)cert. petition

24. Fall, 2004Con Law I - Manheim24 Types of Limits Interpretive Limits Statutory Limits Article III Limits (justiciability doctrines)

25. Fall, 2004Con Law I - Manheim25 Statutory Limits on judicial power Does Congress have power to define federal court jurisdiction? If so, are there any limits on congress' exercise of that power? Court strippping

26. Fall, 2004Con Law I - Manheim26 Statutory Limits on judicial power Does Congress have power to define federal court jurisdiction? Supreme Court Original jurisdiction Appellate jurisdiction  Exceptions and Regulations clause " In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make. "

27. Fall, 2004Con Law I - Manheim27 Statutory Limits on judicial power Does Congress have power to define federal court jurisdiction? Lower Federal Courts Existence and jurisdiction "The judicial power … shall be vested in … such inferior courts as the Congress may from time to time ordain and establish."

28. Fall, 2004Con Law I - Manheim28 Statutory Limits on judicial power Does Congress have power to define federal court jurisdiction? If so, are there any limits on congress' exercise of that power?  Internal limits  External limits  Express restrictions Art. III, § 2, ¶ 3: "Trial shall be held in the State where Crimes shall have been committed" § 3: "No Person shall be convicted of Treason unless on the Testi- mony of two Witnesses … or on Confession in open Court"  Implied or structural restrictions (e.g., Separation of Powers) 7 th Amend: "In suits at common law, where the value in controversy shall exceed $20, the right of trial by jury shall be preserved." What if congress abolished the lower federal courts? Or the S.Ct’s appellate jurisdiction?

29. Fall, 2004Con Law I - Manheim29 Ex Parte McCardle (1868) Substantive Claim Military trial of civilians violated const'l rights Jurisictional route 1789 Act: federal courts could issue writs of habeas corpus for federal prisoners 1867 Act: federal courts could issue habeas corpus to both federal and state prisoners Cong'l amendment to Supreme Court jdx Repealed that part of 1867 Act authorizing appellate review by S.Ct.

30. Fall, 2004Con Law I - Manheim30 Opinion by Salmon Chase Why is jurisdiction (always) the first issue? Why doesn't Congress' motive matter? Might Congress have lawful or unlawful purposes?

31. Fall, 2004Con Law I - Manheim31 Ex Parte McCardle (1868) Can Congress exercise its lawful authority to keep the S.Ct. from performing an essential constitutional function; e.g., judicial review?

32. Fall, 2004Con Law I - Manheim32 Felker v. Turpin (1996) Repeal of S.Ct. jurisdiction to review Ct. of Appeals' decisions in 2 nd habeas cases (Anti- terrorism & Effective Death Penalty Act) No interference with S.Ct. authority since original jurisdiction remains Original jdx exists because State is a party

33. Fall, 2004Con Law I - Manheim33 U.S. v. Klein (1871) Seizure of rebel property Recovery upon proof that owner had not offered aid or comfort to the enemy President Johnson issued many pardons See Art. II, § 2, ¶ 2 – "The President … shall have Power to grant Reprieves and Pardons for Offences against the United States" Act of 1870 "Provided, That no pardon or amnesty granted by the President … shall be admissible in evidence on the part of any claimant … or considered by an appellate court … the Supreme Court shall have no further jurisdiction of the cause, and shall dismiss the same for want of jurisdiction."

34. Fall, 2004Con Law I - Manheim34 U.S. v. Klein (1871) Cong'l control over S.Ct. jdx Does it matter what purpose for withdrawal?  To force decisions in favor of United States  In cases sub judice - "prescribe a rule for the decision … in cases pending before us." Con congress control jdx by prescribing rules of evidence?  Inteference with core Art. III function Cong'l control over Presidential power Does Act of 1870 interfere with President's pardon power?

35. Fall, 2004Con Law I - Manheim35 Cong. control over Rules of Decision Congress' authority to make and change substantive law For future cases For pending cases  Robertson v. Seattle Audubon Society (1992)  Change in substantive law vs.  Directing the interpretation and application of that law congress must be able to do this, lest laws become static If congress were able to do this, it would be deciding the outcome of a pending case