Con Law I

Textual Argument

Constitutional interpretation based on the literal meaning of the text

Structural Argument

Constitutional interpretation based on the structure and purpose of the constitution

Prudential Argument

Constitutional interpretation based on practical considerations

Doctrinal Argument

Constitutional interpretation based on precedent

Ethical Argument

Constitutional interpretation based on the ethos of the American people

Historical Argument

Constitutional interpretation based on historical context and intent of the framers

Marshall’s view on original jurisdiction (Marbury)

Art 3 §2 of Constitution sets a floor and a ceiling. The constitution explicitly mentions areas where the Court has original jurisdiction (the expression of one thing suggests the exclusion of others). If a case does not fall into one of the enumerated categories, that does not mean Court does not have appellate jurisdiction

Two visions of judicial authority

Departmentalism and judicial supremacy

Departmentalism

the judicial function requires the Court to interpret the Constitution co-equally along with the other two branches of federal government

Judicial supremacy

the judicial function necessarily implies that the Supreme Court is the supreme interpreter of the Constitution

Pros for judicial supremacy

1. judicial supremacy ensures that there is one, final governing voice on contentious issues

2. aligns with the views of those who have low opinion of elected officials

Cons for judicial supremacy

1. counter-majoritarian difficulty

2. judges are an unrepresentative segment of the polity

3. departmentalism accords well with a constitutional structure defined by co-equal branches

4. departmentalism’s provision for multiple voices on constitutional issues is a pragmatically good thing

5. judges can get it wrong in dramatically bad ways

counter majoritarian difficulty

court is unelected and has lifelong appointments

Martin v Hunter’s Lessee holding

appellate power of SCOTUS extends to cases pending in the state courts, so §25 of the judiciary act which provides for such federal jurisdiction is constitutional

Justice Story’s argument in Martin

A structural argument combining the Supremacy Clause and Art III which leads to the conclusion: if the case involves federal law, SCOTUS can have appellate jurisdiction. This ensures uniformity in the development and law that defendants are afforded their protections under the federal constitution, since plaintiffs choose where to file (state vs federal court)

McCulloch v Maryland

Court decides that the Constitution encompasses implied powers for Congress flowing from its enumerated powers in Art I. Marshall further argues that the government should be allowed to employ any convenient means for the execution of these enumerated tasks. Here, a core purpose of the federal government is defense, and a national bank is a convenient means to pay soldiers. Thus, Congress establishing the bank is constitutional. The Court also finds that Maryland may not tax the bank because the few (a state) cannot tax the whole (the federal government)

What is Marshall’s constitutional interpretative method in this case? (my opinion)

Broad reading of original intent:

• better on democratic grounds because you get broad congressional powers without violating democratic or rule of law principles

• the explicit restrictions in art 1 only make sense if we assume that congress possesses implied constitutional powers

• general conclusion

  • the constitution allows for congress to have incidental and implied powers flowing from its enumerated powers

  • Marshall says that the federal government’s means cannot be limited to only those means that are absolutely necessary to the achievement of its tasks

    • federal government should be allowed to employ any convenient means for the execution of these enumerated tasks

• necessary means convenient

  • thus, congress may constitutionally create the bank as a convenient means of serving the national defense

Specific original intent in McCulloch (not my argument)

If we wanted to stay faithful to original intent, we should only respect what the framers specifically intended, and not what they may have intended by implication

Ways for elected branches to influence the judiciary

1. constitutional amendments

2. appointments

3. impeachments

4. social influence

5. jurisdiction stripping

Ex Parte McCardle

McCardle published articles in a newspaper in Mississippi opposed to reconstruction. He was arrested for inciting insurrection, among other things. He appeals to SCOTUS invoking habeas corpus under an act from 1867.  This case gains a lot of attention, so Congress enacted a statute repealing the 1867 act because if this case went before the Supreme Court, they would then be allowed to rule on the constitutionality of everything Congress was doing in the South as part of reconstruction (military rule). Essentially, Congress statutorily removed the Court’s appellate jurisdiction.

McCardle today

would likely not be upheld, but it is still technically good law. separation of powers demand judicial independence from congressional meddling and preventing federal courts from hearing certain constitutional claims which would be unconstitutional

Dahl’s argument

the supreme court is democratic because of (1) the recurring ability for presidents to appoint new justices and (2) the court lacks the capacity to fend off the interests of a dominant governing coalition for any extended period of time and thus, the court falls in line with political majorities, making it democratic

Critiques of Dahl’s argument

influence of hold-over justices, Dahl fails to address the Court’s statutory interpretations in assessing the actions of the justices, influence of social and cultural forces on judges and judicial behavior, stealth justices who surprise after they are appointed to the court

what is standing?

a bar you must clear to bring a case in federal court

three elements of standing that are judicially self imposed limits on the exercise of federal jurisdiction

1. no third party standing

2. no generalized grievances

3. the plaintiff’s injury must be within the zone of interests protected by the law invoked

feature of judicially imposed standing requirements

they are prudential and may be revised or adjusted by Congress and may on occasion be rejected by the courts if the reasons for doing so are strong enough

three elements of standing that flow from art iii requirement that the federal courts adjudicate cases or controversies

1. there has to be personal injury in fact which is concrete, palpable, and imminent

2. the injury has to be fairly traceable to the challenged action (causation)

3. the injury is likely to be redressed by the judicial remedy requested

feature of art iii cases or controversies requirements for standing

constitutional requirements that are not subject to congressional revision

Bickel’s theory of passive virtues

the court should duck issues via the passive virtues when they are deeply divisive and no consensus of values exists in broader society. basically, allow the legislative and executive to handle these issues

Benefits of judicial ducking

protects the courts legitimacy and makes it easier for deeply divisive issues to be appropriately resolved in the most democratic forum (the legislature)

how does one duck an issue?

utilizing passive virtues (set of judicial or legal techniques that allow a court to not decide a case like standing) and the political questions doctrine

Cons of utilizing passive virtues

1. undercut the ideal of judicial protection of minority rights

2. if you view the judiciary as the overseer of the other branches, then it seems perverse

3. if you are strongly committed to the rule of law and triumph of legal principle, it again seems perverse

Mass v EPA

Massachusetts sued the EPA because it was not regulating greenhouse gases, which was the cause of loss of MA’s coastal land. This case brings up the issue of standing. Standing requires injury in fact, causation, and redressability.

Is there standing in Mass v EPA? (my opinion)

No standing for Massachusetts; disagree with Stevens public choice theory argument/agree with Roberts

Stevens public choice theory argument in Mass v EPA

predicts the need for judicial intervention on this issue because climate change regulations will likely not be produced through the legislative process. concentrated costs/benefits are highly visible relative to distributed costs/benefits and because of this, political engagement by groups subject to concentrated costs/benefits will be greater. further, because of this, public choice theory predicts that classic public interest legislation (distributed costs/benefits) and public interest legislation over opposition (concentrated costs/distributed benefits) will be underproduced and classic pork barrel legislation (concentrated benefits/distributed costs) will be overproduced

Roberts opinion in Mass v EPA

there are two problems with the injury in fact prong of standing in this case: (1) the injury is not particularized; (2) imminence. there is also an issue of redressability and causation

Brennan’s 6 part criteria for political questions from Baker v Carr (in my own words)

1. already delegated to a different branch

2. no legal standards to resolve the issue

3. requires a policy decision

4. overstepping into other branches domain

5. relying completely on a political decision to make the decision

6. OR the possibility that other branches will make a decision on the issue that is different from the Court’s

Baker v Carr

Tennessee citizens alleged malapportionment in the way seats in the General Assembly was organized. The issue here is whether this is a political question, and therefore can the Court hear the case?

Frankfurter’s definition of a political question in Baker v Carr

looking to concerns about getting the Court entangled in politics and federalism questions (prudential and doctrinal argument)

Brennan’s argument in Baker v Carr

Focuses on separation of powers; only when the Court feels it is intruding upon one of the other branches of the national government is there a political question (could argue it is more of a structural and ethical argument)

Bush v Gore

Florida had to recount its votes for president because of issues with the machines counting votes. Counties were using the intent of the voters standard, which can be argued to not be a uniform standard. Florida has its own deadline for certification, and the Florida Supreme Court allows the recounting to continue until the deadline. SCOTUS steps in, as this over a month after the election and Florida is going to be the determining state in this election. Bush says recount should stop, which would mean he wins the election. Gore says recount should continue because the intent of the voter standard is uniform enough to meet the Equal Protection concern.

Bush v Gore per curium opinion

the florida “intent of the voter” standard is not uniform. thus, this is a violation of equal protection and the recount should stop. bush wins the election

Critiques of per curium opinion in Bush v Gore

1. the arguments go against past precedent and past political practice (makes conservative judges appear even more biased than the liberal justices)

2. it intends to limit this newly articulated equal protection principle to just this case (issue because the court is supposed to decide cases based on general principles that have applicability beyond the present case and it is blatant judicial hypocrisy because pro-federalism justices are rejecting federalism here)