Nashville school of law

Constitutional Law
2012-2013
August 27, 2012

William C. Koch, Jr.

Supreme Court of Tennessee

Limits on Federal Judicial Power

[11]

Interpretative Limits
Congressional Limits
Justiciability Limits

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 Interpretative Limits

 The Constitution is written in broad, open-textured

language.
 According to Nowak & Rotunda:
 “There are probably as many ways of interpreting the
Constitution as there are ways to interpret the Bible.”

Interpretative Limits

 Each of these methods gives different emphasis to the

following factors:
 The plain language of the text
 The relevant history
 The intent of the framers
 Judicial precedents
 Intervening changes in circumstances
 Tradition
 Moral and social policy values

Formal Jurisprudence Based on Natural Law

 This method is characterized by beliefs that:

 The law existed apart from those who decreed it.
 Judges were seen as discovering law and then
applying it to the cases before them.
 Legislators were seen as bound by a higher law
beyond their control.
 The law was truly neutral because it did not favor
particular classes of persons.
 In the late nineteenth and early twentieth centuries,
lawyers and scholars began to discount the idea the law
could be separated from the persons who made it.

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Formal Jurisprudence Based on Natural Law

 In 1873, Oliver Wendell Holmes pointed out:

 Conflicts among various segments of society would
inevitably result in legal principles being developed
that favored one segment or another.
 In his dissents in Lochner v. New York (1905) and related
cases:
 He challenged his colleagues to demonstrate that
their formal jurisprudence involved something more
than the use of their judicial power to enforce their
personal viewes of the proper political, economic,
and social order of the country.

Sociological Jurisprudence

 Arose in the twentieth century in response to formal

jurisprudence.
 They focused on Justice Holmes’s second critique.
 They believed that
 Law could be derived from basic principles that were
discovered from moral philosophy, history, and
societal consensus that could be observed and
verified by judges.
 Judicial rulings involve judge-made, rather than
judge-discovered law.

Sociological Jurisprudence

 Judges should make law by adjusting legal principles

to changing social conditions.
 Court decisions should be evaluated in terms of the
values shared by a majority of the public and the
effect of the decision on social progress.

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 Legal Realist Jurisprudence

 This method responded to Holmes’s first critique of

formalism – that law inevitably reflected the divisions in
society.
 It advocated changing the focus from examining the
correct principles to examining the exercise of the power
of the individuals who made the law.
 They believed that
 There was no law that existed apart from the
government decision-makers.
 Persons in power exercised that power to benefit
themselves.

Legal Realist Jurisprudence

 Judges’ rulings reflected their individual views.

 The law was simply what governmental officials
decided to do in resolving disputes between
individuals or economic forces.
 These legal rules written by legislators and judges
were only expressions by persons in power as to how
they would exercise that power.
 Legislation was (1) a communication to judges as to
how the legislators wished private or social disputes
to be resolved and (2) notice to the citizens of that
fact.

Legal Realist Jurisprudence

 Written judicial decisions were (1) only the exercise of

power in individual cases and (2) notice of the
legislators and other persons in power of how judges
would resolve these disputes.
 There could be no right or wrong because there was no
set of normative principles that could be proved to be
true.
 The legal realists invited the courts to explain the worth
of their decisions in terms of which classes they
benefitted or harmed.
 Legal realists were criticized because they left society
with no set of values for evaluating judicial decisions.

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 Legal Realist Jurisprudence

 Legal realism had essentially passed from the scene by

the early 1960s because:
 The conditions that had called for it had disappeared
because there were simply too many cases and too
many variants of problems for judges to develop
unifying, neutral principles in the common-law
system.
 Common-law principles had been clarified and
narrowed through legislatively and administratively
established rules and the adoption of Restatements.

Neutral Principles or Process-Oriented

Jurisprudence
 First appeared in a casual footnote in an otherwise not
very important decision.
 In footnote 4 of United States v. Carolene Prods. Co., 304
U.S. 144, 152-53 n.4 (1938), the Court noted that an
active judicial role might be justified when the Court was
 Enforcing the textual guarantees of the Constitution,
 Defining and protecting rights in the political process,
and
 Protecting discrete and insular minorities.

Neutral Principles or Process-Oriented

Jurisprudence
 Under this method
 Judges should identify a neutral basis or principle
that is not dependent on the parties to the litigation.
 The correctness of judicial decisions can be evaluated
in terms of the institutional role of the Court in the
democratic process.
 Some have criticized this method as a return to
formalism because judges are being told to examine the
text of the Constitution to find that there are values
established therein that do not depend on the judge’s
personal political philosophy and which can be defended
under a claim of neutrality.

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 Interpretivist School and Originalism

 Interpretivist scholars and judges believe that the courts

should apply only the words of the Constitution as they
were understood by the persons who wrote them.
 It is an effort to place some limits on judicial review.
 There are several varieties:
 Original intentions originalism – The text of the
document and the original intentions of those who
framed it should be the judicial standard in giving
effect to the Constitution.

Interpretivist School and Originalism

 Understandings or intentions of the ratifiers -- The

focus in on the understanding of the voters who
ratified the provision rather than the persons who
wrote them.
 Original public meaning originalism – The core idea
of this revised theory is that the original meaning of
the Constitution is the original meaning of the
Constitutional text.
 Courts should not inject their personal political
philosophy into constitutional rulings.

Interpretivist School and Originalism

 Judges are not required to ignore the policies or history

behind the law or the costs and benefits of any particular
interpretation.
 The principal distinction between interpretativists and
non-interpretativists is that with non-interpretativists,
moral philosophy displaces the text and history and
renders them unimportant.

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 Value-Oriented Jurisprudence

 Adherents of this method demand that the courts

promote their view of social good by requiring all
branches of government to comply with principles of
moral philosophy which these persons believe are
reflected in the Constitution and in society’s current
consensus on fundamental values.
 These scholars and judges mark a return to formal
jurisprudence. They are not legal realists because they
believe in law apart form the exercise of political power.
 However, they lack a single accepted, logical structure
that uses agreed principles to answer questions not
answered by the text of the Constitution.

District of Columbia v. Heller,

554 U.S. 570 (2008) [13]

District of Columbia v. Heller

 The search for the meaning of the Second Amendment is

guided by the principle that the Constitution was written
to be understood by the voters. [14]
 Divides the Amendment into the “prefatory clause” and
the “operative clause,” and then focuses on the
“operative clause.”
 “Bear arms” guarantees the individual right to possess
and carry weapons in the case of confrontation. [16]
 The inherent right of self-defense has been central to the
Second Amendment right. [21]
 The right is not unlimited. [20]

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 District of Columbia v. Heller

 The District’s ban on handgun possession in the home

violates the Second Amendment, as does the prohibition
against rendering any lawful firearm in the home
operable for the purpose of immediate self-defense. [49]
 Justice Stevens dissenting:
 The conclusion that the Second Amendment protects
an individual right does tell us anything about the
scope of that right. [22]
 Neither the text of the Amendment nor the
arguments advanced by its proponents evidence the
slightest interest in limiting any legislature’s authority
to regulate private civilian uses of firearms. [23]

District of Columbia v. Heller

 Respect for the well-settled views of earlier courts

and the rule of law itself would prevent most jurists
from endorsing such a dramatic upheaval in the law.
[23]
 The Second Amendment’s concern was the
allocation of military power between the states and
the federal government. [25]
 The majority has made a conscious choice to change
the law. [26]

District of Columbia v. Heller

 Justice Breyer dissenting:

 The majority’s conclusion is wrong for two reasons
1. The Second Amendment protects militia-related
not self-defense related interests. [27]
2. The protection the Amendment provides is not
absolute. [27]
 How will a court determine whether a particular
firearm regulation is consistent with the Second
Amendment?

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 District of Columbia v. Heller

 Where a law significantly implicates competing

constitutionally protected interests in complex ways,
the Court generally asks whether the statute burdens
the protected interest in a way or to an extent that it
is out of proportion to the statute’s effects on other
important governmental interests. [28-29]
 The District’s statute properly seeks to further the
sort of life-preserving and public-safety interests that
the Court has called compelling.
 Samuel Adams who lived in Boston doubtless knew
that Massachusetts law prohibited Bostonians from
keeping loaded guns in the house. [33]

McDonald v. City of Chicago,

561 U.S. ___, 130 S. Ct. 3020 (2010) [Supp. 113]

Otis McDonald

McDonald v. City of Chicago

 Rights that are “fundamental to the Nation’s scheme of

ordered liberty” or that are “deeply rooted in this
Nation’s history and tradition” are applied to the states
through the Due Process Clause of the Fourteenth
Amendment.
 The Court recognized in Heller that the right to self-
defense was one such “fundament” and “deeply rooted”
right.

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 Limits on Federal Judicial Power

Congressional Limits [34]

Congressional Limits

Article III, § 2, cl. 2 states:

In all other Cases before mentioned, the

supreme Court shall have appellate jurisdiction,
both as to Law and Fact, with such Exceptions
and under such Regulation as the Congress
shall make.

Congressional Limits

Article III, § 2, cl. 2 states:

In all other Cases before mentioned, the

supreme Court shall have appellate jurisdiction,
both as to Law and Fact, with such Exceptions
and under such Regulation as the Congress
shall make.

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 Congressional Limits

 What does the “exceptions” and “regulation” language

mean?

 After 200 years, there is still no consensus regarding

what Article III, § 2 means.

 One side insists that the clause provides Congress with

broad power to remove cases from the Court’s
jurisdiction.

 The other side argues that Congress cannot use its power
in a manner that violates the separation of powers
doctrine.

Ex Parte McCardle,
74 U.S. (7 Wall.) 506 (1868) [35]

Ex Parte McCardle

 The appellate jurisdiction of the Court is not derived

from acts of Congress but from the Constitution, with
such exceptions as Congress shall make. [36]
 Congress had the power to repeal the habeas corpus act
because it had enacted it.
 The courts cannot proceed without jurisdiction. [37]
 But the 1868 Act does not repeal all of the Court’s
appellate jurisdiction, simply the appeals from the circuit
courts under the 1867 law that permitted federal courts
to grant habeas corpus relief. [37]

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 Ex Parte Yerger,
75 U.S. (8 Wall.) 85 (1869) [37]

Ex Parte Yerger

 The Court had jurisdiction to hear the case under the

Judiciary Act of 1789 which had not been repealed by
the 1868 Act that had been addressed in Ex Parte
McCardle.

Separation of Powers as a Limit on

Congress’s Authority [37]

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 United States v. Klein,
80 U.S. (13 Wall.) 128 (1872) [37]

United States v. Klein

 This is not an exercise of the acknowledged power of

Congress to make exceptions and prescribe regulations
to the appellate power. [39]
 The 1870 statute is unconstitutional because Congress
attempted to prescribe how a court should decide an
issue and because it had the effect of denying a
presidential pardon. [39]

Robertson v. Seattle Audubon Society,

503 U.S. 492 (1992) [39]

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 Robertson v. Seattle Audubon Society

 Congress had changed the law itself, rather than

directing findings or results under the old law. [40]
 United States v. Klein applies when Congress directs the
judiciary to make a decision under existing law.

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