Con Law

Fed 78 Duty of the Court

"The interpretation of the laws is the proper and peculiar province of the courts."

Heller; Scalia's Methodology

- First turns to text. • Basic methodology of Scalia's opinion involves disaggregating the second amendment language. • Operative v. Prefatory clause • Argues that we should interpret the text in a plain language sense, understood by the common voter (not lawyers). Connotation of voter - today's voter or 1789 voter? - Gives short-shrift to precedent. - Gives short-shrift to drafting history. Rejects significance of Madison draft containing a conscientious objector clause

Justice Iredell theory of role of natural law in constitutional interpretation? (Calder v. Bull 1798)

Anti-natural law. If Congress has authority, it can pass what it wants, regardless of natural justice. • If any act of Congress or of the legislature of a state, violates those constitutional provisions, it is unquestionably void. If on the other hand, the legislature of the Union, or the legislature of a state shall pass a law within the general scope of their constitutional power the court cannot pronounce it to be void, merely because it is, in their judgment, contrary to the principles of natural justice. The ideas of natural justice are regulated by no fixed standard. If the legislature pursues the authority delegated to them, their acts are valid.

Klein v. United States (1872) holding's perspective on Congress's power to limit judicial review?

Background: Congress passed statute that if a pardon is submitted to any court, the court shall treat it as conclusive evidence of disloyalty and dismiss the case for lack of jurisdiction. Jurisdictional limit on every federal court (unlike McCardle - just on SC). ♣ Court held unconstitutional because it invaded the president's reserved exclusive pardon powers, and invaded judiciary's powers. ♣ Court claimed that ordering federal judiciary to dismiss the case for want of jurisdiction was simply a means to an end (get Southern property back). Seem to be inquiring into motive, contrary to McCardle! ♣ Taking jurisdiction away from all federal courts inconsistent with Article 3, if you have a mandatory reading of "shall be vested."

Legal Realism (1937-?)

CHOOSE • If you apply the right deductive logic to the right sources, you can come to only one correct conclusion. • Rejects formalist notion that authoritative legal rules provide determinative outcome. • Shares secular national notion idea that there is only one correct conclusion. • Realists believe decisional process is not that outcome determinative; choice between competing alternatives. o If legal outcome was crystal clear, there would be no adversarial system. But there is because there is gray area and reasonable arguments on each side. • Legal anthropologists - you can have law without authoritarian sources, because of custom and social ordering. • Holmes: "The life of the law is experience and not logic." • Experience and practicality helps to decide cases, not dictates of logic from prior decisions or authoritative text. o Involves choosing one policy over another, or one plausible process over another • Judging law is a choice, and the process of making the choice should consider social policy effectiveness • Descriptive, not prescriptive enterprise. Exposes that there is not one right answer. • Interpreting law is making law, because next case will use yours as precedent. • From a democratic perspective, it may be concerning that judges are deciding law, rich with policy choices, because they are not elected. • Realism doesn't change judging, but simply changes rhetoric by highlighting certain problems in the democratic process that were previously submerged by refusing to acknowledge that judges are/were making law.

Ex Parte McCardle; Chases Interpretation of SC Jurisdiction

Cant change original. • Appellate jurisdiction is initially granted by Congress. Congress can limit appellate jurisdiction because of the "such exceptions and under such regulations" clause. He excludes the comma, meaning Congress can make either exceptions or regulations. With the comma, Congressional power is only over regulations, not exceptions (no exceptions clause).

Federalist 51 (Madison)

Checks on government & protection of people against tyranny of majority

McCulloch v. Maryland (1819)- Issue One: Does Congress have the power to incorporate a bank? Holding

Constitution allows Congress to carry out its powers with any means, so long as . . . "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution . . ."

Secular Natural Law (1776-1835)

Discover •Evolved out of canon law, which England ascribed to. Law is divine. • Doesn't deny deity, but suggests that law is separate, and derives its authority from some other source. • Western liberal thought derived from thinkers in this period (Locke, Rousseau, Hobbes, Montesquieu) • Natural rights appear in the Declaration of Independence and in some of the Constitution. o 9th Amendment is best statement of natural law - rights don't have to be given in a bill of rights, they are held antecedently in a social contract, and are retained unless they are taken away.

Federalist 78 (Hamilton)

Explain and Justify Judicial Review and Structure of Judiciary *Affirming JR in Judiciary (No Council of Revision)

McCulloch v. Maryland (1819) Background

Facts • Bank created in 1790 to help furnish loans to federal government and collect taxes. The bank was unpopular with the states. MD decided to go after it by imposing a tax on notes issued by any bank operating in MD that wasn't chartered by MD, which included only the National Bank. Bank refused to pay. MD sued the cashier to get the tax, in state courts. Ended up in SC. • Constitutionality of bank debated. Madison believed Congress had no constitutional authority to create it. Hamilton did, and drafted plan for the bank. Jefferson believed Congress had no authority, and argued that Constitution only allowed the means necessary to achieve enumerated powers, and if non-enumerated powers were given to Congress, it would swallow up all the delegated powers.

McCardle Case Background

Facts • McCardle imprisoned by military government imposed by Congress as part of Reconstruction. • He brought a habeas corpus action in federal circuit court, charging that the Reconstruction Acts under which he was imprisoned were unconstitutional. • Circuit court rejected his petition for habeas. He appealed to SC under an 1867 Habeas Act. • Habeas Act authorized grant of habeas by federal circuit courts, and appeal directly to the SC from lower court denials of habeas. The act extended habeas jurisdiction to deal with state detention as well as federal detention. Northerners didn't trust southern judges to uphold federal law. • Congress repealed portion that allowed appeal to SC after it had heard arguments, but before it handed down decision. Congress did so out of fear that SC would find the Reconstruction Acts unconstitutional. By limiting appellate jurisdiction, Congress purported to deprive SC of its right to decide McCardle and any other habeas case coming by appeal from circuit courts. • Extraordinary time of constitutional and political crises. President and Congress at loggerheads. Chief Justice of SC running for president. Impeachment of Andrew Johnson.

• Judicial review consistent with...

Framer's intent: Federalist 78, Council of Revision, "arising under" language, supremacy clause.

McCardle Case Holding & Rationale

Holding: SC upheld Congress' restriction of the Court's jurisdiction. Appellate jurisdiction of SC is conferred "with such exceptions, and under such regulations as Congress shall make." This is one of the exceptions. The act does not violate the Suspension Clause because McCardle could (at time) create an original petition for habeas in the SC itself. Congress has some power to control the boundaries of the Supreme Court's appellate jurisdiction. (Judicial restraint!) Rationale: The exception to appellate jurisdiction in the case before us is not an inference from the affirmation of other appellate jurisdiction.

Formalism/Positivism (1835-1937)

INTERPRET • Rejection of notion that law exists externally to human choice and decision making. • Erie v. Tompkins best example. Overruled Swift v. Tyson, and Justice Story, who believed that federal courts are just as good if not better at discovering the (federal) common law, and they aren't bound by state common law. • Brandeis: "Law is not a brooding omnipresence in the sky." Erie. • Law derives from authoritative declaration. • Notion that "judges must not make law" comes from formalist philosophy - judges interpret law, not make it. This ignores judge-made tradition of common law. • Legal formalists use rational process interpreting law from prime sources, like statutes, constitutions and cases, and use deductive approaches. • 9th Amendment makes no sense to a formalist - how can there be rights if nobody granted them? • Rights don't exist per se, but they are protected by a document, through a grant of power (from people?) • Precedent is very important. Documents and analyzing text more important to formalist.

McCulloch v. Maryland (1819) Issues

Issue One: Does Congress have the power to incorporate a bank? Issue Two: Is Maryland's tax on the bank a valid exercise of state taxing power? (Vertical review)

McCardle Case Issue

Issue: Whether (as McCardle argued) Congress' repeal of the appellate jurisdiction of the Supreme Court's habeas power was a suspension of the writ of habeas corpus.

Jefferson upset by early sections (where there are individual rights involved, and a duty, judiciary can review executive). He thinks...

Jefferson thinks that constitutionality of actions of each branch can be determined for themselves.

Justice Chase theory of role of natural law in constitutional interpretation? (Calder v. Bull 1798)

Justice Chase: Pro-natural law. To assume that Congress has power to create law contrary to general principles, if that right is not expressly restrained, is heresy • Men decide what the law is, because they chose to bind themselves by the social compact. • There are certain vital principles in our free republican governments, which will determine and overrule an apparent and flagrant abuse of legislative power. • An act of legislature contrary to the great first principles in the social compact cannot be considered a rightful exercise of legislative authority. • It is against all reason and justice for a people to entrust a legislature with powers contrary to their general interest, and the general principles of law and reason forbid them. • Court can look to the nature, purpose and structure of the social compact, not just the document! This doesn't make sense today because Constitutional issues can only arise if they are in the document.

Did the Constitution vest all judicial power of the US in some form by giving either original or appellate jurisdiction? How much is Article 3 jurisdiction mandatory or discretionary? Justice Story Interp

Justice Story interpreted Article 3 to be mandatory. It requires that the whole judicial power of the US should be at all times vested, either in original or appellate form, in some courts created under its authority. At any time, some federal court must have the power to decide any case to which the federal judicial power extends. (DEFINITION OF MANDATORY: Congress can't limit appellate jurisdiction such that no federal court can hear a case over which it has constitutional power). • Story argues that "shall" (shall be vested) = must. • Nobody ever doubts that shall = must in Articles 1 and 2 • Thus, SC must be able to hear all cases arising under federal law. • State court jurisdiction is determined by state, not federal law. o This was correct only prior to the adoption of the Constitution. o If Congress enacts a statute, and they don't want to give federal claim created to a federal court, then it must go to state court. o But, can Congress say the claims MUST go to state court? This is question of supremacy. o State court jurisdiction is determined by state, not federal law. o Story assumes that there is no federal power to affect state jurisdiction. • Conclusion: Since the SC must be able to hear all cases arising under Constitution, and that must be done via appellate jurisdiction, those cases have to be heard somewhere first. Because Congress controls jurisdiction of the state courts (and can exclude federal claims from being heard in federal courts) and the states control their own jurisdiction, Congress must create lower federal courts to ensure that the cases are heard there first. But, why must Congress do this, if according to Martin, SC can review the decisions of a state court? Even if Congress forbids a federal claim from being brought in federal court, it could still be appealed to Supreme Court. Is it because it couldn't be removed to a federal court? Or does it have something to do with the state's determining their own jurisdiction? It must vest them with all of the judicial power of the US so that the SC can exercise all its constitutional duties under Article 3, §2. • Reasoning is logical, but conclusion is false.

The federalist

Madison, Hamilton, Jay

Source of constitutional decision-making

Original Meaning Interpretation o understanding of Framers. But which Framer's understanding? Ratifiers' understanding? Which one? What if provision is vague? Constitutional Text Interpretation o easy cases (29-year-old can't be President, but tough ones, like applying 1st amendment) Tradition and Precedent o constitutional law operates as a form of common law, developing over time but constrained by past. o Prevailing morality or social consensus o Conceptions of justice and general/first principles

Judiciary Act of 1789 Section 25

Section 25 allows Supreme Court to hear only some issues in a case arising under a federal treaty. You could only appeal to Supreme Court if the state court decided against the federal claim.

McCulloch v. Maryland (1819)-Issue Two: Is Maryland's tax on the bank a valid exercise of state taxing power? (Vertical review) Holding

States have no power, by taxation or otherwise, to retard, impede, burden or in any manner control, the operations of the constitutional laws enacted by Congress.

Judiciary Act of 1789 Section 25 constitutional today?

Today, SC can only hear case if there is a federal question in the plaintiff's pleading. Independent and adequate state grounds?

Calder v. Bull (1798)- Issue

What is the appropriate role of natural law in constitutional interpretation?

Checks on Judicial Review?

[1] Appointment of Judges [2] Amendment of Constitution to overrule verdict

2nd Amendment Acting as a Limit

amendment is not in the Bill of Rights. Begins with "Congress shall make no law." This doesn't limit states in any way.

Fed 78 Controls on judiciary:

good behavior tenure and legislative review of judicial decisions

• Contemporary right and left

have switched premises - Federalists' views opposed to current Federalist Society, whereas, modern liberal thought more associated with altruism espoused by Anti-Federalists.

• Marshall's principal arguments rely not on text, but..

instead on its structure and on the consequences of a conclusion that judicial review was unavailable. o Structure: If Founders had intended to leave it to the legislature to apportion jurisdiction between superior and inferior courts, it would have been useless to have proceeded further than to say such. But, they did proceed further in Article 3, §2. (i.e. Supreme Court gets X, nothing said about lower court) o Consequences: If courts must close their eyes to Constitution, and see only law, this directly controverts the will of the Founders in the text of the Constitution. It would subvert foundation of all written constitutions, by declaring that the legislature can do what is expressly forbidden, giving them omnipotence, while Founders clearly wanted powers to be limited.

• Most straightforward way for people to respond to a Supreme Court decision with which they disagree.

o Amending process can begin only if 2/3 of both Houses propose an amendment or if the legislatures of 2/3 of the states call for a constitutional convention. o No amendment can be adopted until it is ratified by ¾ of the states. o SC has been overturned by constitutional amendment five times. • extraordinary consensus. This is not an adequate check if you believe in majoritarianism! Madisonian republicanism is fine with extraordinary majorities though.

McCardle Chief Justice Chase Opinion

o Chief Justice Chase adopts the last interpretation and misquotes the Exceptions Clause (Article III, Section 2, Clause 2) o Congress can make either exceptions or regulations regarding appellate jurisdiction.(without comma) o Chase is probably wrong as to originalist history, but this opinion still has precedent authority.

Rationale for Vertical Review

o If Constitution meant to limit appellate jurisdiction to federal cases, then the jurisdiction of federal cases (in all cases enumerated) would be excluded from state courts. How else could jurisdiction extend to all cases arising under the constitution, laws and treaties of the U.S., or to all other enumerated cases? Because, if these cases could be heard in state courts (which they can), and no appellate jurisdiction existed for them, then the appellate power would extend to some, not all cases. o If state courts could exercise concurrent jurisdiction over all or some of the other classes of cases in the constitution without control, then as to such cases, the appellate jurisdiction of the U.S. might have no real existence, contrary to the manifest intent of the Constitution (resulting in disparate results in state and federal court over same law). This would shorten the jurisdiction of federal courts more than has ever been contemplated. o State judges have to decide according to supreme federal law. Given that the Supremacy Clause binds judges to the supreme law of the land, it is obvious that state judges are meant to decide according to the Constitution, laws and treaties of the U.S., not merely the laws of their state. Otherwise disparate results, and public mischief would ensue - state court could deny Constitution because SC has no appellate jurisdiction. o Thus, the constitution meant to provide for cases within the scope of the judicial power of the U.S., which are pending before state tribunals. o Constitution foresaw that state courts would take federal question cases. The judicial power must extend to these cases, by the very terms of the Constitution (Supremacy Clause). And it has to extend by appellate jurisdiction, because state courts have rightful original jurisdiction.

• Consistency of judicial review with legal realism

o If judges choose law, then it could be dangerous to democracy. If they are forced to make decisions, and decisions affect all of society. What would Madison think about allowing people to vote on judges' decisions? Tyranny of majority. Jefferson would want people to vote (under this philosophy).

• Consistency of judicial review with secular natural law

o If judges discover law - then not really dangerous to give them judicial review. Madison (10) and Hamilton (78) thought that giving unelected judges the right to overturn people's representatives makes for a fairer democracy. They didn't have concern about counter-majoritarian difficulty we have today.

• Consistency of judicial review with formalism/positivism

o If judges interpret law, and they don't consider themselves the authoritative figures creating it (though they are), then judicial review is dangerous to democracy. But, if you accept their logic - that they are interpreting, not making, then it's not dangerous (to them). o Neo-formalists don't write as if they are making a choice, but they are; don't always follow precedent.

Attitudes of the Federalist and Anti-Federalist about revisions of the Constitution?

o Jefferson: Constitution should be rewritten every generation; past isn't wiser than present; dead have no rights. Frequent revision will lead to greater citizen participation. o Madison: strong presumption against amending; Constitution is wise and broad with room to accommodate change. It is mistake to constitutionalize any particular set of values. Frequent amendment is danger to Constitution. Revising Constitution will lead to violent struggle between the parties interested in reviving and those interested in reforming the antecedent state of property. While Jefferson thought a little rebellion now and then was good, Madison believed stability was Constitution's greatest virtue. Madison wanted law and politics to be separate (Fed. 78) - if frequent Constitutional amendments permitted, distinction would be lessened.

Secular Natural Law Precedent

o Not binding because precursory, but because it is evidence of what the secular natural law IS. Precedent confirms a general principle, as opposed to articulating it. o Marbury begins with general principles; doesn't site precedent at all.

Modern Attitudes about Amendments?

o Pro-amendment: Supreme Court interprets Constitution flexibly, so the people should be allowed to amend flexibly. Change necessary to counteract judicial interpretation. o Careful amendment: Constitution should be carefully amended only to solve serious structural defects, or include groups previously excluded. Ex. Balanced budget amendment should be disfavored if it imposes controversial economic doctrine on Constitution.

• For original jurisdiction there are two Constitutional requirements:

o Req. 1: Article 3, §2, ¶ 1; only applicable category is "between a state and foreign state." o Req. 2: Article 3, §2, ¶ 2; "cases in which a state shall be a party."

• To what extent is the Supreme Court subject to informal mechanisms of control?

o Some of Court's most controversial opinions did not contradict widespread social opinion o Court perceives itself as having limited political capital, and tends to budget its expenditure in the number and kinds of controversial decisions it renders. o But, Court may also shape national consensus. On occasion, Court has been willing to insist on a course of action notwithstanding considerable public disagreement (i.e. school prayer, school desegregation, and abortion).

McCulloch v. Maryland (1819)- Issue One: Does Congress have the power to incorporate a bank? Marylands Argument

o State compact theory (power comes from states, not from people, as in social compact theory). o Thus, must look to specifically enumerated grants of power, to determine if Congress has power. o If grant is not specifically enumerated, and power derives from states, then states any un-enumerated power. Argument derives from general principles, not text. Reinforced in the 10th amendment. o Necessary and proper clause includes only that which is absolutely necessary. "Necessary" is a limitation on Congress' power.

what extent Congress can limit power of judicial review through Appellate Jurisdiction? Plenary?

o Text of Constitution makes it seem plenary. No limit on Congress! ♣ Is this power a check on court's judicial review, discouraging it to stray too from public will. o Separation of powers argument - Congress can't destroy the essential function of the SC in the constitutional plan. Structure of Constitution suggests that framers intended Court to perform important function in separation of powers scheme. o Unsure exactly to what extent Congress can limit power, but it can't deprive Court of its purpose. o What would Marbury say? ♣ Unlimited Congressional power to make exceptions is inconsistent with supremacy of federal Constitution as against the states and Congress. Would lead to evils Hamilton described in support of judicial review. ♣ But, those who believe SC can only decide constitutional cases because of its jurisdiction, and not it supremacy, wouldn't have problem.

Secular Natural Law Beliefs

o You have rights originating from social contract; rights not given by government. o Law is not made or interpreted, it is discovered. o Role of judges is to discover the law (akin to science). ♣ Thus, there is only one right answer, and opinions will be written as such. ♣ No exploring of different interpretations - Marshall didn't explain his choice of interpretations of Section 13 and Article 3. ♣ To discover, you look to basic axioms of government (political philosophy) and contemporaneous writing (Federalist) and general principles (i.e. as in IHR law, some transcendent human right that governs you even if you haven't subscribed to it; documents stem from rights, not vice versa. o Legitimacy of the law depends on conformity to and protection of natural law. A good decision conforms to the standard (like IHR; thinking relates to general principles and inalienable rights, like life, liberty and property).

Three sources of constitutional doctrine:

text, reinforcement (improvement of democratic processes) and natural law/rights

Importance of SC today? Uniformity or Supremacy?

uniformity is most important. SC jurisdiction is discretionary.

Judiciary Act of 1789

• (Judiciary Act of 1789 probably closer to the NJ plan than Framers had wanted, because lower federal courts were established, but those courts didn't get any FQ jurisdiction - only diversity. Thus, most important federal questions were first heard in state court, and if they got to SC, they were on appeal. Federalists thought this wrong, and Justice Story lobbied Congress to restore general federal question jurisdiction).

Classical Republican/Anti-Federalists

• (civic virtue) - derived from Greek democratic traditions • Basic model is New England town meeting o Democracy = small, local, direct participation o If democracy is small, actors will be friends/neighbors with community, and will act out of civic virtue. • Education is critical - the more educated you are, the more likely you understand what the common good is. • Majority rule important

Madisonian Federalists

• (self-interest) - created by Madison and Federalist, reflected late 19th century political and economic thinking • Rejection of civic virtue in favor of political self-interest; therefore government must be controlled. • Believed small democracies will have fewer interest groups, and smaller interests will be locked out by tyranny of majority. • Intellectual similarity to Adam Smith's, The Wealth of Nations, written within a year of Madison's Federalist 10 o Representative democracy - whims that affect a crowd won't affect a more educated representative speaking for that crowd. Congressman is a check on people, not their mouthpiece. o Large democracy with no permanent majority - more democratic because there are multiple interests, so there will have to be bargaining, and nobody can get permanently locked out. o Separation of powers and divided government - checks and balances; not efficient but must put check on government actors' self-interest

Articles of Confederation, 1781-1789

• American independence disrupted English government and economics (slave trade). Articles of Confederation were first attempt to replace it. • Single branch of government - "United States in Congress Assembled." Continental Congress predated Articles. • No permanent judiciary • No permanent executive - presiding officers of the Continental Congress, but not executive • Legislative power of Congress o Only non-controversial powers granted to central government o They had sole and exclusive power to make war and peace, enter into treaties, coin money, establish postal system, send and receive ambassadors. o Indian affairs clause of Article IX [Predecessor to Commerce Clause] • Operation of Congress o Equality of state voting (9/13 needed for legislation, unanimity for amendments) so it didn't make a difference how many representatives you had in Continental Congress - one vote per state!

Constitutional Convention

• Annapolis Convention called for Constitutional Convention in Philadelphia in summer of 1787. • Madison immediately proposes plan to make sure it is a "runaway convention" and overturns the Articles, instead of amends them. Constitution adopted by a process not sanctioned by prior Constitution! • They met in secret, because if they fail, they were guilty of treason/overthrowing U.S. government

Judicial Impeachment

• Art. 3, § 1: Justices hold their offices during good behavior. They may be removed on impeachment for, and conviction of treason, bribery, or other high crimes and misdemeanors. • No Justice ever impeached since Justice Chase. Justice Douglas came close for personal marital scandal and liberal politics in his book, and in Playboy in which he expressed sympathy for rebellious groups in 1960s. • Impeachment has not been used as a means of obtaining political control over the Supreme Court, perhaps because of independent judiciary's prestige, acceptance of Marbury v. Madison, legal doubts about wisdom and legality for using impeachment for political purpose. • Not a check on judicial review.

McCulloch v. Maryland (1819)-Issue Two: Is Maryland's tax on the bank a valid exercise of state taxing power? (Vertical review) Rationale

• Article 1, § 10 forbids states to tax imports and exports. This is because such taxation would be incompatible with spirit of Constitution. Implied limitation that it cannot tax anything else. • MD can't tax Fed Bank because it represents all the people, so MD's taxation is without representation. • Federal supremacy argument: power to tax is power to destroy. Supremacy Clause prevents states from acting in ways that will destroy a federal institution. • Virtual representation - there is a reality to the virtual representation of interests.

Is the size of the SC set in the constitution?

• Article 3 requires SC but says nothing about how it is to be composed. o FDR and Johnson messed with the size of the Court.

Martin v. Hunter's Lessee (1816) Story; Judicial review of state decisions

• Article 3 requires that the whole judicial power of the US should be at all times vested, either in original or appellate form, in some courts created under its authority. At any time, some federal court must have the power to decide any case to which the federal judicial power extends. (i.e. removal or vertical review). • Story's Reasoning o Appellate jurisdiction is not inconsistent with state sovereignty. Many constitutional clauses limit state sovereignty, and if SC has horizontal review of co-equal branches, it surely has vertical review. o Appellate right will not impair independence of state judges. They don't possess independence of the U.S. or Constitution anyway. They shouldn't have absolute force. o Revising power will not cause abuse. Bad to argue against power due to possibility of its abuse. o Public mischief will result from limiting the appellate power of the U.S. to only federal cases. State judges might have state prejudices, so removal is important for fairness. Constitution designed for the common and equal benefit of all the people. Judicial power is not to be exercised solely for benefit of plaintiffs. Diversity jurisdiction is important for Ds. o There should be uniformity of decisions throughout the US on constitutional subjects.

Prior to Heller how was the 2nd Amendment interpreted?

• At no point prior to Heller had a court ever found an individual right to keep and bear arms, or a right to keep and bear arms divorced from the "well regulated militia" clause. Court had never adopted right to keep and bear arms for self-defense purpose.

What historical event did Scalia reference for the 2nd Amendment individual right justification?

• Based on Heller opinions, at some point in our history, the 2nd Amendment was looked at to make political arguments with respect to an individual right to be armed for self-defense. o This arises a bit in pre-civil war case law (Nunn v. State). Scalia willing to use as precedent a case patently incorrectly decided to make his point. o Becomes more widespread post-civil war. Black militias evolved, and informal militias emerged in the South, commonly called KKK, which was armed. Southerners interested in de-arming freed slaves. • This led to Congress defending blacks by looking to the 2nd Amendment. Self-defense right likely emerges for first time in reference to the KKK in the post-civil war south.

Examples of Congress Attacking judicial power through statute?

• Boumediene and McCardle.

Committee of Detail

• Charge was to report a Constitution conformed to the proceedings of the Committee of the Whole • Broad statements adopted by Convention particularized by Committee of Detail o Added cases "arising under this Constitution" to Article 3 (is this for judicial review?) o Added "both as to law and fact" describing appellate jurisdiction of the Supreme Court o Rejected proposal to permit Congress to control scope of appellate jurisdiction of the Supreme Court • Couldn't agree on how to elect the President

Historical Background of Marbury v. Madison

• Chief Justice John Marshall enters court determined to enlarge power of judiciary because of 1800 election in which Jefferson won, and Federalists were separated out of Congress and Presidency. • Federalists (Marshall) wanted to stay in power by packing judiciary. o Congress passed Midnight Judges Act, D.C. Justice of Peace legislation. Congress enacted new judgeships and Senate confirmed. o Marshall was Secretary of State. Marbury's commission not delivered by time Jefferson enters. o Jefferson comes into office upset with court-packing, and orders his Secretary of State (James Madison - playing on other team!) to not deliver the commission, and not to seat Marbury. So upset they delay Court's term for a year. • Marbury files for writ of mandamus directly with Supreme Court. Not possible today.

United States v. Heller (2008) Language Used to Justify 2nd Amendment Individual Right

• Clause after second comma purports, based on its phrasing, to state only one, not two rights. "The right" is singular. Right is collective ("of the people"). Singular right of some collective to keep and bear arms - and if "bear arms" is in fact about being in the militia, then the "keep arms" would be tied into the "bearing arms" part. Proponents of opposite view never quote the entirety of the amendment.

Marbury and Counter-Majoritarian Difficulty

• Constitution just sets up rules of the game, but doesn't resolve political debates. a perceived problem with judicial review of legislative or popularly created laws; problem with the judicial branch's ability to overrule laws that reflect the will of the majority.

Major Events of the Constitutional Convention

• Debate begins with the VA Plan, presented by Randolph and drafted by Madison o VA Plan rejects theory of articles (sovereignty flows from states to central government) for theory that Congress owes powers to the people, not states. Thus, Congress represents people, not States, so Constitution must be adopted by the people (thereby jettisoning Articles of Amendment), not the states. o VA Plan subject of the Committee of the Whole, and floor debate for first 40% of Constitution. o It is the focus, until it is about to be approved, then NJ Plan enters. Small states concerned that they would lose political authority, so they propose counter attack in the NJ (Paterson) Plan, but they lose. • Goes to Committee of Detail (5 member drafting committee); supposed to take principles of VA Plan and turn into a document, which looks startlingly like the Constitution. Then Convention debates. • Then, Committee of Style (proofreading). Transmit to Continental Congress to transmit to the states, for the purpose of having conventions assembled to ratify the document.

AofC Ratification & Debate

• Debate between Federalists and Anti-Federalists (Classical Republicanism v. Madisonian Republicanism) • Emergence of The federalist (Madison, Hamilton, Jay) supporting NY's ratification of Constitution • Anti-Federalists concerned about large, expensive tyrannical government; lack of bill of rights; excessive jurisdiction is unnecessary, expensive and duplicative; denial of civil jury trial; threat of property confiscated from Great Britain and given to VA.

NJ Paterson Plan

• Expressly voted down by Convention when the VA Plan was approved by three separate votes • Major provisions o Amend articles o Add legislative powers of taxation and regulation of interstate commerce o Power to coerce the states (calling out army) o No lower federal courts; only Supreme Court, with limited appellate jurisdiction o Proposed a Supremacy Clause to bind state judges to enforce the Constitution (this makes it!)

CHEROKEE NATION V. GEORGIA (1831)

• Facts: Cherokee entered into treaty with U.S. that Indians would have their own sovereignty. But GA started invading their land and passing laws to suppress the Indians. Indians sought an injunction in SC against GA. • Issue: Whether the Cherokee nation is a foreign state, enumerated in Article 3, §2 for purposes of jurisdiction? • Holding: No. An Indian nation is not a foreign state in the sense of the Constitution, and cannot maintain an action in the courts of the U.S. • Appears this is a claim arising under a treaty. No original - just appellate - jurisdiction for treaty. • For original jurisdiction there are two Constitutional requirements: o Req. 1: Article 3, §2, ¶ 1; only applicable category is "between a state and foreign state." o Req. 2: Article 3, §2, ¶ 2; "cases in which a state shall be a party." o So, to get original jurisdiction, it must be between GA and foreign nation. • Next source of jurisdiction is the treaty, and that can only be appellate jurisdiction. They are claiming original. • So, only hope for Cherokee is if they are a foreign state. • GA doesn't show up, because it believes it has sovereign immunity under 11th Amendment. Court rejects, saying that GA can unquestionably be sued in this court, and that 11th Amendment doesn't stand for a broad principle of state sovereign immunity, but only that which it says ("The judicial power of the US shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by citizens or subjects of any foreign state.") • Rationale: o First, Marshall confirms that Cherokee Nation is a sovereign nation, he is irking President and Congress. o But, are they a foreign nation? ♣ Marshall looks to Commerce Clause. Foreign state and Indian nation are enumerated separately, so they don't seem to be the same. (Original intent!) Not foreign nation. o They are a domestic dependent nation. ♣ They are internal geographically. (Domestic) ♣ Political relations are different because of their dependence (if US invaded, they are too) and the restraint imposed on their citizens. • But . . . "if it be true that the Cherokees have rights, this isn't where they should be enforced." Statement of a limited judicial role. • Could they have sued in state court?

Martin v. Hunter's Lessee (1816) Case

• Facts: Dispute over land ownership in VA. During Revolution, property of British loyalists was confiscated. Northern neck of VA owned by Lord Fairfax. VA never adopted procedures for confiscation, so it wasn't clear when it occurred, if at all. Debate over Lord Fairfax's real estate was strong question debated in Convention. Anti-Federalists feared that if Convention was ratified, the federal government would validate Fairfax's title, instead of validate the confiscation. 1783 Treaty of Paris protected British subjects against further confiscation of their land, but wasn't retroactive, so if VA confiscation occurred after 1783, land was Fairfax's, but if before, land was VA's. (Fairfax had sold land to surveyors, including Chief Justice John Marshall, who recused himself because of property interest). When confiscation occurred was a matter of state law, turning on construction of unclear statutes and other VA legislative acts. • Procedural Posture: VA Court of Appeals rules that confiscation completed under VA law prior to 1783. Supreme Court, in Fairfax's Devisee v. Hunter's Lessee (1813) rules it took place after 1783, and was illegal because it violated the Treaty of Paris, and a treaty is the supreme law of the land. • Issue: Whether SC has appellate jurisdiction over constitutional decisions of state courts. • Holding: SC has appellate jurisdiction over cases pending in the state courts, and over constitutionality of a decision by the state's highest court. Section 25 of the Judiciary Act, which authorizes the exercise of this jurisdiction in the specified cases, by a writ of error, is supported by the Constitution.

Life Tenure

• Goal is to promote judicial independence Some states impose age ceiling and require retirement at 65-70

Heller; Scalia's Methodology looking at precedent

• He does not look extensively to the prior precedents. He gives it short shrift by basically saying that Stevens is just wrong about it. He doesn't admit there are prior precedents about what he is saying, just argues that the can distinguish those cases from what he's cited. Precedent doesn't seem important to this particular justice. • He minimizes effect of precedent, but doesn't overturn them. Shows that Court is concerned to do so. If you Shepardize 2nd Amendment, there are still arguments to be made in either direction, which makes Constitutional law fairly incoherent, and makes analysis of Constitutional law important (and contextualizing case in history).

Ex Parte McCardle (1869) To what extent can Congress curtail the jurisdiction of the SC, or of the lower federal courts?

• In Article 3, the only direct grant of jurisdiction to any particular court is to the SC. It shall have original jurisdiction in cases involving ambassadors, ministers and consuls, and cases in which state is party. • Article 3, § 2, ¶ 2, cl. 2 also suggests that Congress can place certain limits on both SC's appellate jurisdiction and on the jurisdiction of the lower federal courts ("in all other cases before mentioned" of which "inferior courts" is one). • Most of SC's jurisdiction is granted constitutionally, not by statute. Lower federal courts are created by statute, and their jurisdiction is dependent on statute that created them. But, even if lower federal courts jurisdiction is created by statute, Congress can't give power not defined in Constitution. What is vested in the federal judiciary (Article 3, § 1) places an outer limit on what Congress can vest in the lower federal courts. o The judicial power is vested for all federal courts in Article 3, §1. What Congress can give to them is still governed by Article 3. Summary: o Congress can't add to SC's original jurisdiction. (Marbury holding - no writ of mandamus) o Congress can't take away any part of SC's original jurisdiction, because Constitution granted it. o Congress can give lower federal courts concurrent jurisdiction over SC's original jurisdiction topics.

"We must never forget that it is a constitution we are expounding." Meaning?

• In interpreting constitutions, we must look at them differently than statutes, etc. • If a statute needs interpretation, it is easy to amend if it is wrong, but this isn't true of Constitution. • In Constitution, you must draft through skeletal outline of objectives, not exhaustive treatment, as in statutes. • Thus, strict constructivism is not the best way to approach the document. (There would be no air force!)

Holes in Scalias Conclusion of the 2nd Amendment?

• Is the right absolute? Is it defined by decision? Is Court clear as to what test applies in 2nd Amendment cases? • No. Scalia acknowledges that there are weapons not appropriate (i.e. WMDs). But he doesn't give a clear test. • But if we do have an individual right to keep and bear arms for self-defense, is that right good only as against the federal government, or does it also apply to the states? • D.C. is governed by the federal government directly. So, this case holds nothing as to keeping and bearing arms as against state and local governments. o Unless you overturn Presser's statement that the 2nd Amendment doesn't apply to the states, Heller applies only to D.C. and federal government's gun regulations. • Thus, he leaves to another day the state and local authority in this area (McDonald v. Chicago - this term, at lower level, held unanimously that Heller didn't apply to states). • Certain irony: Scalia opposed to the incorporation doctrine, through which BofR is applied to the states through the 14th Amendment. If he holds true to this, he should vote that 2nd Amendment does not apply to the states.

Implications of Chases Interpretation of Appellate Jurisdiction?

• Judicial review is a subject of appellate jurisdiction. This is critical because every time Congress passed a statute, it could tack on "No Article 3 court shall have authority to interpret this statute" thereby removing judicial review simply by removing jurisdiction of the court, and thus, Court's entire constitutional role as check on people's elected representatives. According to Chase in McCardle, this is permissible!

Judicial Appointment Process

• Justices appointed by President, subject to advice and consent of the Senate. • Senate's power to advise and consent can affect composition of the Court in two ways: (1) may lead President to avoid highly controversial appointees, (2) Senate may refuse to confirm presidential appointees for reasons of incompetence, venality or ideology. o Particularly in periods in which president lacks support, influence of senatorial confirmation assumed far-reaching importance. 20% of presidential nominations have been dealt with negatively by Senate. • Is this aggressive role of the Senate desirable? o Ex. Judge Robert Bork - intense controversy over his writings on judicial activism (disliked) and 1st Am. Nomination defeated by largest margin of any Supreme Court nominee in history. Possible to think nation rejected Bork's views, but also possible to think that his defeat was result of an intense, misleading lobbying effort ("Borking" - all-out, personal campaign against public figure).

Marbury v. Madison Issues One, Two, and Three Part A - Incidental & 3

• Main Issue: Which branch of the government shall have the final say in interpreting the Constitution? • Issue One: Does Marbury have a right (in property sense) to the commission he demands? Yes. o Delivery is not required to vest the right to the commission. Appointment was fully effective with the presidential nomination and senatorial confirmation, and signing and sealing of commission. Decision that delivery is required for validity could have ended this, but he decides to press Jefferson. • Issue Two: Does Madison's failure to deliver (violation of right) require laws to afford him a remedy? Yes. o Jefferson (and Madison, even though he disagrees) argues that each branch of government must decide lawfulness of its own actions. Court's power is limited because the decision of whether to recognize Marbury rests with the president, and this is a non-reviewable issue. o Marshall: We are a government of laws, and not of men. If you have a right, you must have a remedy. o Jefferson/Madison: The remedy must be in the executive branch, not the judiciary. o Marshall: Executive orders can be reviewed by the judiciary, insofar as they affect the vested rights (granted by appointment confirmation) and there is a duty to grant them. ♣ Discretionary acts not reviewable; executive action, compelled by law, involving violation of right and duty are reviewable! ♣ Duty with no violation of right is not reviewable - must be standing! • Issue Three, Part A: Is the writ correct? Yes. o Writ of mandamus directed at a public official to direct them to perform a duty. Delicate situation - Court won't review discretionary acts of executive, only cases involving legal duties with individual rights. Issue Three - the Game Changer • Issue: Whether the particular remedy sought by Marbury - a writ of mandamus - directly to the Supreme Court, could be granted. Is it an original writ of mandamus, as construed by this Court? (Jurisdiction question - usually first, but not here). • Jurisdiction is based on Section 13 of the Judiciary Act of 1789. • Article 3, §2, ¶2: But, writ of mandamus falls under appellate jurisdiction. But Marshall doesn't consider this argument, and simply concludes that Section 13 grants jurisdiction because he reads in isolation, rather than in context. Had he, there would be no jurisdiction and outcome would be the same (dismissal), but he has a larger agenda. Today he would have to defend why he chose one interpretation over the other. • Judiciary Act, as Marshall interpreted it, conflicted with the Constitution.

McCulloch v. Maryland (1819)- Marshall's Interpretation

• Marshall relies on structure and relationships of Constitution, not just text. Structural interpretation allows interpretation based on policy and is more flexible than strict grammatical interpretation • Marshall also interprets using perceptions of consequences for government based on a contrary, strict interpretation of necessary and proper clause.

Problems with Articles of Confederation

• No separation of powers • No power over states o States had trial authority over admiralty cases, but appeals go to Continental Congress, who reversed, but states did not comply, because Congress had no executive, army or money • No power over economy o Insecurity of property: Shay's rebellion highlighted difference between debtor and creditor classes o Trade routes ran to Great Britain - no market for U.S. goods and it was still in debt o Congress had no power over foreign or interstate commerce o No independent taxing power. Dependent on state levies, but they didn't comply.

Heller; Scalia's Methodology looking at text

• Operative v. Prefatory clause o Allows him to not look at prefatory clause in light of the operative clause! o Allows him to assert that there are two rights: "keep arms" and "bear arms" o Thus, it is easier to create an individual right to have arms for self-defense, if you separate "keep" from "bear" because "bear arms" is the phrase that connotes a connection to being in the military. o Argues idiomatic meaning of "bear arms" in just one context: "bear arms against X" • Argues that we should interpret the text in a plain language sense, understood by the common voter (not lawyers). Connotation of voter - today's voter or 1789 voter? o Consider: Amending process can begin only if 2/3 of both Houses propose an amendment or if the legislatures of 2/3 of the states call for a constitutional convention. No amendment can be adopted until it is ratified by legislatures of ¾ of the states. President has no part in this process. o So why would we interpret the Amendment in light of the 1791 voter? He is not looking to an understanding circa 1791. He wasn't looking at any civil war precedents, if he held true to originalist interpretation. He looks to voters because he knows he is making a change in the law, and he knows voters understand 2nd Amendment in terms of NRA. Interprets Constitution as understood by voters.

Heller; Justice Breyer's Dissent

• Paradigm of a realist opinion (focus on data and facts) • History o Relies on the history of colonial gun regulations o Existence of self-defense rights in PA and VT Declaration of Rights; known and rejected by framers o John Adams' support for right of citizens to keep their own arms for self-defense while, he knew that Boston had a law outlawing loaded weapons in houses. Clearly, right to have arms for self-defense did not preclude reasonable regulation of guns in the framers minds. Even if there is an individual right of self-defense, it is not inconsistent with regulation of guns. • Concern about the standard and manageability by the judiciary (very practical concern!) • Respective competencies of legislatures and courts in managing policy disputes - it really ought to be left to legislative decision making • Extensive focus on crime and gun injury data (i.e. experience), to analyze the constitutional question o For a neo-Formalist like Scalia, data is not important because it is a legal question. But for a realist, you can't interpret a legal question without trying to figure out how rule you adopt will impact society.

Terry-Carpenter v. Las Vegas Paiute Tribal Council

• Plaintiffs: We don't have separation of powers in our Constitution. There is only a legislative branch. We created the Tribal Court, so we can fire it, and it can't exercise judicial review. They argue that separation of powers is essential to judicial review. • Court: Judicial review comes from the fact that the Constitution is law, and that the court is sworn to enforce it. It can't ignore the Constitution. Separation of powers not necessary for judicial review, though it is helpful. o Doesn't guarantee attitudinal independence, which can exist with or without. Structural independence can only exist with separation of powers. o dangerous to adopt judicially independent approach - legislature may use judiciary only as it wants to • Structure of government might help with producing independence. Is it true that structural independence will always produce attitudinal independence? o Not likely that judge will take hard line in reviewing executive power if he was appointed by executive. Structural independence can help with attitudinal independence. Tribal court judges have day jobs, which helps with attitudinal independence.

Virginia Plan Randolph and drafted by Madison

• Popular sovereignty - Rejected state sovereignty in favor of popular sovereignty ("We the people") • Separation of powers with four branches: executive, judicial, legislative and Council of Revision o Council of Revision would have united executive and judicial to check acts of Congress. Congress would have authority to veto any act of a state legislature. (Stems from Madison check/balance system.) • Council of Revision o Unites judiciary and president against Congress. o Concern that this would give judiciary a double negative on Congress (veto in Council of Revision, and judicial review in hearing cases). o (This proves that judicial review was discussed at the Convention!) • Representation - Debate between small and large states resolved with Connecticut Compromise. Theory of popular representation in both houses (two houses, popularly elected, apportioned based on population) prevailed, rejecting entire theory of Articles. But, document wouldn't be adopted if they didn't compromise on the apportionment issue, the modern Senate idea arose. • Scope of legislative power o All powers under Articles of Confederation o Authority to legislate in all cases in which the separate states are incompetent, or in which the harmony of the U.S. may be interrupted by the exercise of individual legislation. ♣ When a state couldn't fully address a problem because it affected other states, national legislature would have authority. Congress approved a version of this. A listing of the powers of Congress in Article 1, section 8 supposed to be a theory of this. • Scope of federal judiciary, scope of jurisdiction and lower courts o VA Plan proposed constitutionally mandated set of lower courts o Convention voted down having constitutionally mandated lower federal courts. o Madisonian Compromise: no constitutionally created courts, but authorized Congress to do it. o Article 3, § 1: "Federal judiciary under the Constitution is composed of a Supreme court, and such inferior federal courts as the Congress may from time to time ordain and establish." • Called for taxing authority

McCulloch v. Maryland (1819)- Issue One: Does Congress have the power to incorporate a bank? Rationale

• Power of federal government does not derive from states. That is theory of Articles. The government of the Union is emphatically, and truly, a government of the people - it emanates from them; its powers are granted by them, and are to be exercised directly on them, and for their benefits. • 10th Amendment doesn't confirm state compact theory. o Interpretive methodology/originalist history: Madison omitted word "expressly" from original text, because it hamstringed the powers of the federal government in the Articles. Thus, omission was deliberate and meant to confer broader powers than what was enumerated. o It is uncertain to whether states or people retained power - it says "or." It's possible the people didn't deposit power with the states. This is the reason the state conventions were required (vs. ratification by state legislatures). They give assent of the people, as opposed to assent of the states. • We accept that Congress is a government of limited enumerated powers. o Limited federal jurisdiction explains why state courts are of general jurisdiction, and likewise, limited federal legislative power explains why state legislatures are of general power. o But, were we to accept MD's argument, then federal government would have very limited power over criminal law. So, there must be some other explanation! • But, federal government has implicit/implied, but not inherent legislative power. o Inherent: part of your sovereignty; don't need someone to say it o Implied: comes from granted powers, because implied power is so related to the explicitly enumerated one, that to carry out enumerated, you need it. • Constitution doesn't explicitly give Congress authority to create a corporation, but it does give implicitly. o It does explicitly allow Congress to tax and borrow, and it needs a bank to do these things. Bank is a means to accomplish constitutionally granted ends. o Criminal code is implied power to achieve explicit commerce clause ends. • Necessary and proper clause is not an absolute limitation. o It is in Article 1, §8, which is a section on grant of powers, not limitation. o Necessary ≠ "essential." Might mean "convenient" and is not modified by "absolutely" as elsewhere. o If it meant necessary, Congress would have no power to select the means to perform duties. • There must simply be a rational relationship between the means and the ends. o Degree of efficiency left to Congress - only needs to be 1% to be ok by Court. o Articulation of judicial self-restraint. • Three-Part Test: "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution . . ." o 1: To be legitimate, end has to be within scope of the Constitution. o 2: Means are appropriate if plainly adapted to the Constitutional end. o 3: If it consists with the letter and spirit of the Constitution, it can't be prohibited. • Hypo: Congress bans interstate shipment of newspapers. o 1: End regulating interstate commerce is enumerated in Constitution. o 2: Prohibiting shipment is a means plainly adapted to regulating instate commerce (Constitutional end). ♣ We hold rights against the government. They are prohibitions on exercise of powers otherwise granted. Framers rejected BofR because if Constitution correctly construed, unnecessary. o 3: But doesn't consist with the letter and spirit of the Constitution (1st amendment), so is prohibited. • Question of motive and intent . . . o Seems not to matter! So long as Congress is aiming for legitimate objective, Court is okay with it. o But later, Marshall says, "Should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to government, it would be duty of court to declare unconstitutional." o Court is absolutely inconsistent. Should motive be added to Marshall's test?

Records of AofC

• Proposed that they burn records of the Convention so there wouldn't be evidence. Records had only the motion and the votes, not the details of the debates. They decided not to because it might help to have the records in interpreting Constitution. Evidence that Framers meant to look beyond text! • Gave documents to George Washington. He could release them only if it entered into force. He later consulted them over a treaty and got into trouble for violating agreement. They were finally published in 1818, and were first evidence of what happened in Philadelphia. Madison's notes not published until after his death in 1842.

Post-Realist Jurisprudential Theories

• Reactions to realism. They want to substitute a prescriptive outcome-determinative test to fix problems created b y the descriptivism of realism. • They say they are realistic, in sense that they are practical, but each has a prescriptive agenda about how we should decide cases. • Neo-formalism (conservatives on Supreme Court) (liberals likely realists) • Feminist jurisprudence: goal is to eliminate hierarchy • Critical race theory: goal is to eliminate race as a formalizing principle. • Law and economics: goal is economic efficiency • Critical studies: goal is to deconstruct law to reconstruct on Marxism • Law and society: goal is to use informed social science research, to inform choices on which law is based.

Heller; Scalia's Methodology looking at drafting history

• Rejects significance of Madison draft containing a conscientious objector clause. o Existence of CO clause would seem to suggest militia interpretation of 2nd Amendment. This is exactly what Stevens argues. o Scalia argues that looking to earlier versions of the Constitution is not valid in interpreting it. o Scalia's is a plain language approach. Plain language approaches usually assume that the clause is unambiguous. But, by very count of the justices, it is evident that the Amendment is at least ambiguous. When you make a plain language argument in the face of disagreement about meaning - you are either arrogantly asserting that yours is right and theirs is wrong, or you are somehow claiming that the language has some special meaning divorced from its history. The latter is what Scalia is claiming, because he refuses to look beyond that history. o His is an originalist textual approach, refusing to look at the originalist historical approaches that would inform the text by the drafting history. It is one thing to do that when you don't have a drafting history (before 1842), but another to do when you do have a drafting history (as he does in this case!) o If he is not prepared to look at originalist history, is he prepared to interpret the Constitution by looking at post-adoption history? He does look at this. He appears to make that choice because the post-adoption history supports his argument more strongly than the language of the document, and the drafting history of the document. Even Scalia's plain language interpretation involves choices. Every other amendment, Scalia argues, should be interpreted as it was understood at the time of adoption. It is peculiarly odd to have post-adoption history used by Scalia, because he usually won't use it.

Significance of Original Intent (of Constitution)

• Secular natural law scholars don't find understanding of the Constitution important. Formalists do. Realists are somewhere in the middle. • Early practical problems with sources - they weren't all available or published until 1842. For first 30 years, until 1818, nobody knew anything other than what was in Federalist papers. • Sources don't appear until the Formalist period. • Sources are not well-published until 20th century, so for the first century, there is little focus on original understanding as a means of interpreting. • Neo-formalists hung up on whether looking at the text or supporting records is important. Scalia only looks at text, but clear evidence framers wanted records to be interpreted (because they chose not to burn them).

Heller; Justice John Paul Stevens' Dissent

• Sources o Language - "bear arms" means serve as a soldier o Adoption history ♣ Focus on Madison's inclusion of CO exemption in initial draft • Marginalizes the significance of post-adoption history

But, even if Article 3 is not mandatory, Section 25 is still unconstitutional.

• Story doesn't buy VA's argument that Constitution only works on people, not on the states in their corporate capacities, because of Article 1, §10 limits on states. • States are biased, so Ds should be able to remove to federal court. • Supreme Court review has two basic purposes. o There must be uniformity of federal law among the states. Having a single SC sit astride all lower federal and state courts provides uniformity in interpretation of the law. o There must be federal supremacy. • Section 25 ensures only supremacy of federal law, but not uniformity. Because, if VA and NY interpret a treaty differently, both cases can't be appealed to the SC, because SC can only hear federal question not upheld.

Marshall's perspective on Judiciary role

• The judiciary role: "it is emphatically the province and duty to say what the law is." (Federalist 78) o Marshall might be trying to soften Federalist 78 ("proper and peculiar") - he doesn't say only the judiciary has the duty, but that they must when put in this position. Marshall (and Jefferson) wants all three branches to consider constitutionality of their acts, but Hamilton wants only Court. o Here, Court considering a statute that dealt with the Court, so it was deciding constitutionality of a judicial branch issue, in agreement with Jefferson and Marshall's belief. • Judges' Oath of Office o Marshall (and other government actors) sworn to uphold the Constitution, as well as the laws. o Oath doesn't say that Constitution is prime, but he is saying he wouldn't be true to his oath.

How does Marshall justify saying that Constitution Trumps Statute? He argues that . . .

• The people have adopted an intergenerational Constitution, with fundamental primacy. (Federalist 78) o If Constitution has primacy, to be enforced against other branches of government, there should not be periodic legislative selection of judges, because he would defer to legislature, rather than Constitution. o Marbury is not the first case of judicial review, but it is the best defense. (Federalist 10 Judicial Review) o Marshall believes that power of Constitution comes from the people (Locke's popular sovereignty defense). Written constitutions are designed by the people as an intergenerational check against power-hungry legislature. Madison okay with dead people ruling, Jefferson not. • Supremacy Clause o "Constitution and laws of the United States, made in pursuance thereof, shall be the supreme law of the land." A law in violation of the Constitution is not made in pursuance thereof, so it is not supreme. o ". . . the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding."

VA Appellate Ct decision

• VA Court of Appeals declared Section 25 unconstitutional and ignored SC's Fairfax's Devisee decision. VA argues that the Supreme Court has no authority to review decisions of the highest courts of the states. o VA argues that Constitution acts directly on the people, so it can't act on the state in its corporate capacity. SC can't review its decisions. Further, state judgments are final - you can remove before judgment is reached, but after, Supreme Court can't review. State court judges are just as capable, and are closer to the people so their judgment ought to be preferred, particularly on questions of state law. o Thus, Section 25 is unconstitutional, and SC has no power to review decisions of state courts.

Martin v. Hunter's Lessee (1816) Claims for and Against Judicial Review

• VA argues that one sovereign cannot control another. Other devices, besides appellate jurisdiction, are available to minimize risk of disharmony and to bring about uniformity. • SC argues for (judicial review) appellate jurisdiction of state court decisions because disparate interpretations of the Constitution because it would reduce uniformity. SC may also want review of vertical questions because of fear that states are hostile to federal rights (perhaps state judges are insufficiently independent of the forces against which constitutional guarantees are supposed to run).

Martin v. Hunter's Lessee (1816) -Section 25 of the Judiciary Act Issues with SC hearing case

• When Supreme Court in Devisee reversed VA Court of Appeals, they were reviewing both a question of federal and state law. They assumed they had authority to review both federal and state law. • But, was there jurisdiction to review the federal claim? o It seems so. It arose under a treaty, thus Article 3 affords judicial power. o But, according to Article 3, §2, ¶ 1, cl.2, Supreme Court's appellate jurisdiction (treaty is in that category) is subject to "such exceptions and under such regulations as the Congress shall make." o Congress created Section 25 of the Judiciary Act as a regulation on such appellate jurisdiction . . . o Section 25 allows Supreme Court to hear only some issues in a case arising under a federal treaty. You could only appeal to Supreme Court if the state court decided against the federal claim. o Here, there was only a federal treaty claim if the confiscation occurred after 1783, because if it was before, by law, the land was VA's, and the treaty wasn't violated. If after, treaty was violated. o VA court decided confiscation occurred before 1783. Thus, no federal treaty claim. And no federal claim for SC review! o But, SC took the Devisee case anyway.

SC Appellate Jurisdiction

• When Supreme Court reviews judgment of a state court, it is exercising appellate jurisdiction. • Article 3, §2, ¶ 1, cl.2 provides that Supreme Court's appellate jurisdiction may be regulated as Congress shall provide ("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 regulations as the Congress shall make.") • Congress "regulated" with the Judiciary Act of 1789, where it limited Supreme Court's appellate review to federal questions decided by state courts. o Supreme Court can review only whether state court has reached a decision that is not in conformity with the Constitution. It can't review state court decisions that merely adjudicate questions of state law. Supreme Court's review of state court judgments is limited to questions of federal law.

Potential Meaning of Exceptions and Regulations Clause: "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 regulations as the Congress shall make."

• [1] Modifies "both as to law and fact" and permits Congress to control scope of review, not jurisdiction. (Six different possible interpretations of the clause). • [2] Modifies entire paragraph. This would mean that Congress has given power to make original jurisdiction appellate and appellate jurisdiction original. Not whether they have the jurisdiction, but how it's exercised. This construction is foreclosed by Marbury (rejects that something within appellate jurisdiction can be made original) • [3] Modifies the sentence. More likely that you can't make original appellate, but you can change appellate into original. You can't reduce the original, but you can enlarge the original, consistent with Marbury. Both of these interpretations are foreclosed by the precise holding of Marbury. But before Marbury, they were at least plausible interpretations. • [4] Permits reallocation of appellate jurisdiction by making it original (and possibly, vice versa) Rejected sub silentio by Marbury v. Madison • Must be read consistently with Article 3, §1 ("shall be vested") so that appellate jurisdiction can only be curtailed by giving lower federal courts jurisdiction o If Congress creates lower federal courts, then appellate jurisdiction of Supreme Court may be reduced and given to the lower federal courts. o [5] Comma creates 2 clauses and Congressional power is only over regulations, not exceptions o [6] Congress can make either exceptions or regulations regarding appellate jurisdiction.(without comma) o At the federal level, the federal rule making is a legislative function. (FRCP) Rules Enabling Act from Erie applies.

strict holding Marbury v Madison

• an act of Congress addressing (expanding?) the Supreme Court's original jurisdiction is unconstitutional.

Binary political party structure

• destroys Madison's vision. Bargaining within legislature presumes that there is no pre-existing outside structure that organizes people into majorities and minorities. • This thought has no influence on Articles of Confederation. It is unique American political invention.

Article 3, §2

• §1: vests power in the judiciary branch • §2: defines the judicial power, enumerating cases first and controversies second • §2, ¶2: allocates original/appellate jurisdiction within Supreme Court o No paragraph on lower federal courts because they are statutorily, not constitutionally established. Congress decides lower court jurisdiction and Constitution decides Supreme Court jurisdiction. o Thus, Supreme Court's jurisdiction is fixed. Congress can restrict it, but not expand it! o Did Constitution vest all judicial power of the US in some form by giving either original or appellate jurisdiction? How much is Article III jurisdiction mandatory? • Is the Marbury case within the original class of jurisdiction as listed in this paragraph? No! o Original jurisdiction only for cases with (foreign) ambassadors, and those in which state is a party. o Thus, statute (Section 13 of the Judiciary Act) conflicts with the Constitution. o If both were statutes, last in time theory would make Section 13 prevail, under straight majoritarian democratic theory. But, this isn't our constitutional theory!

Did Congress create an exception in McCardle?

♣ Exceptions can be positive or negative ♣ Positive statement of jurisdiction which encompasses less than all the judicial power is an exception ♣ A grant of less than all the judicial power, is still an exception.