Constitutional Law I
Limits on the Judicial Power
Jan. 13, 2005
Types of Limits
Interpretive Limits
Statutory Limits
Article III Limits (justiciability doctrines)
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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.”
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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
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Theories of Interpretation
Textualism (linguistic meaning; structure)
Originalism (framers’ intent; histor. context)
Dynamic/Non-originalism (organic evolution)
Non-Interpretivism (external values; religion)
Capital Punishment
8th Amendment: “Excessive bail shall not be
required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.”
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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”
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Interpretive Theories of 2nd Am.
“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.”
1. Guarantees the rights of States to
maintain armed militias (federalism)
2. Guarantees individuals the right to keep
firearms (indivual right)
Further question: Should the right
be an “absolute” or “qualified” one?
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Interpretive Theories of 2nd Am.
“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.”
Textualism


Methodology – examine syntax, word choice,
punctuation, structure, logical consistency
Purpose of opening (subordinate) clause:
Qualify independent clause (right to bear arms); or
Merely explain why the (individual) right was
enacted
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Interpretive Theories of 2nd Am.
“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.”
Textualism


Methodology – examine syntax, word choice,
punctuation, structure, logical consistency
“Bear Arms”
primarily military connotation

“The People”
State militias vs. individuals

Con Law I - Manheim
Compare other uses of “the People”
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Interpretive Theories of 2nd Am.
“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.”
1st Amendment – “Congress shall make no law …
abridging the right of the people peaceably to assemble”
9th Amendment – “The enumeration in the
Constitution of certain rights shall not be construed to deny
or disparage others retained by the people.”
10th 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.”
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Interpretive Theories of 2nd Am.
“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.”
1st Amendment – “Congress shall make no law …
abridging the right of the people peaceably to assemble”
“We the People of the United States ... do
9th Amendment
–
“
The enumeration in the
ordain
and
establish
the
Constitution
of
Constitution of certain rights shall not be construed to deny
the United
States
of America.
or disparage
others
retained
by the people.”
10th 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.”
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Interpretive Theories of 2nd Am.
“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.”
Textualism

Methodology – examine syntax, word choice,
punctuation, structure, logical consistency
 Inclusion in Bill of Rights



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"the Bill of Rights is not a bill of states' rights"
Except for 10th Amendment
And except for 2nd Amendment ?
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Interpretive Theories of 2nd Am.
“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.”
Originalism (historical context)


Methodology – historical analysis
English history – Bill of Rights (1689)
 Apparently both collective and individual right

Colonial history – same?
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Interpretive Theories of 2nd Am.
“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.”
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."
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Interpretive Theories of 2nd Am.
“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.”
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 wellregulated 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
 5th Congress (1797) never mentioned 2nd amd. in
debating if merchant ships had right to carry arms
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Interpretive Theories of 2nd Am.
“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.”
Originalism (framers’ intent)


Did "the people" include women, slaves?
What did the framers mean by "arms"?
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Interpretive Theories of 2nd Am.
“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.”
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)
"there must be a
 Whether right exists
limit to government
 How strongly to protect it
regulation on lawful
firearm possession"
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US v. Emerson, 270 F.3d 203 (2001)
5th Circuit reverses (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 individual 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)
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Types of Limits
Interpretive Limits
Statutory Limits
Article III Limits (justiciability doctrines)
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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
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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."
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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."
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Art. III,
¶ 3: "Trial shall
be
Statutory Limits
on§ 2,
judicial
power
held in the State where Crimes
shall have
been committed"
Does Congress have
power
to define
§ 3: "Noth Person shall be convicted
federal court jurisdiction?
7 Amend: "In suits at
of Treason unless on the Testicommon law, where the
mony
of
two Witnesses
… or on
If so, are there any limits
on
congress'
value in controversy shall
in open Court"
exercise of that Confession
power?
exceed $20, the right of trial
What
if congress
the
by jury
shall beabolished
preserved."
 Internal limits
 External limits
lower federal courts? Or the
S.Ct’s appellate jurisdiction?
 Express restrictions
 Implied or structural restrictions (e.g., Separation
of Powers)
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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.
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Opinion by Salmon Chase
Why is jurisdiction (always) the first issue?
Why doesn't Congress' motive matter?

Might Congress have lawful or unlawful
purposes?
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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?
Ex parte Yerger (1868)
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Felker v. Turpin (1996)
Repeal of S.Ct. jurisdiction to review Ct. of
Appeals' decisions in 2nd 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
What if Congress removed SCt. appellate jdx in
federal habeas cases? (no original jdx)
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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 Ct shall have no further jurisdiction of the
cause, and shall dismiss same for want of jurisdiction."
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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?
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Cong. control over Rules of Decision
Congress' authority to make and change
congress must
substantive law


be able to do
this, lest laws
become static
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
If congress were able to do
this, it would be deciding the
outcome of a pending case
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