Con Law-Bruff-Spring 2006-89

Con Law-Bruff-Spring 2006-89 - CONSTITUTIONAL LAW OUTLINE...

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CONSTITUTIONAL LAW OUTLINE I. THE FEDERAL JUDICIAL POWER A. Authority for judicial review 1. Marbury v. Madison i. creates authority for judicial review of executive action a. invididual rights/government duties (mandamus appropriate) vs. areas of executive discretion (political remedy only) ii. Art. III is ceiling of fed ct jurisdiction a. federal courts cannot gain jurisdiction by consent of congress b. need BOTH Constitutional and statutory authority iii. authority for judicial review of legislative action iv. BUT establishes all this power while declaring unconstitutional a statute that expands the Court’s powers (so it looks like less of a power grab) 2. Martin v. Hunter’s Lessee i. establishes authority for judicial review of state court decisions ii. review is essential to ensure uniformity of interpretation of federal law B. Limits on Judicial Power 1. Interpretive i. problem: judicial review is anti-democratic ii. originalism: text should be interpreted as the framers intended a. vs. non-originalism: meaning should change over time b. how much does tradition matter? c. Scalia: asks how average person on the street would have interpreted the words when they were written iii. weight of precedent (stare decisis) iv. weight of modern issues (i.e. gun deaths when interpreting 2nd amendment) v. three interpretations of 2nd amendment ( US v. Emerson p. 14) a. does not apply to individuals ( Silviera v. Lockyer p. 19) b. limited individual right that can only be exercised by members of a functioning, organized state militia (see US v. Miller ) c. applies to individuals 2. Congressional (congress passes a bill to prevent federal courts from interpreting or hearing challenges to a particular act) (Art III only gives SCOTUS appellate jurisdiction with such exceptions as Congress shall make) i. what does Art. III mean when subjects jurisdiction to such exceptions and regulations as Congress shall make? a. Ex Parte McCardle (1868) (p. 25) court refuses to grant writ of habeas corpus because no jurisdiction b. maybe feared impeachment if didn’t do what congress wanted? c. the Court never ruled on constitutionality of reconstruction ii. what about separation of powers? a. US v. Klein : statute authorizes that individuals whose property was seized during the civil war could be compensated if they had
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not aided the enemy, supreme court held that a presidential pardon fulfilled that requirement; congress adopted statute providing that a pardon was proof of participation in the rebellion and required that the court dismiss the case b. court rules that pardon includes amnesty and the statute is a violation of separation of powers c. this applies only when Congress directs findings or results under an old law, not when Congress changes the law ( Robertson v. Seattle Audubon Society
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Con Law-Bruff-Spring 2006-89 - CONSTITUTIONAL LAW OUTLINE...

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