Constitutional Law Prof.

Vogel August 20, 2011

Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 2 L. Ed. 60 (1803). Facts On his last day in office, President John Adams named forty-two justices of the peace and sixteen new circuit court justices for the District of Columbia under the Organic Act. The Organic Act was an attempt by the Federalists to take control of the federal judiciary before Thomas Jefferson took office. The commissions were signed by President Adams and sealed by acting Secretary of State John Marshall (who later became Chief Justice of the Supreme Court and author of this opinion), but they were not delivered before the expiration of Adamss term as president. Thomas Jefferson refused to honor the commissions, claiming that they were invalid because they had not been delivered by the end of Adamss term. William Marbury (P) was an intended recipient of an appointment as justice of the peace. Marbury applied directly to the Supreme Court of the United States for a writ of mandamus to compel Jeffersons Secretary of State, James Madison (D), to deliver the commissions. The Judiciary Act of 1783 had granted the Supreme Court original jurisdiction to issue writs of mandamus to any courts appointed, or persons holding office, under the authority of the United States. Issues 1. Does Marbury have a right to the commission? 2. Does the law grant Marbury a remedy? 3. Does the Supreme Court have the authority to review acts of Congress and determine whether they are unconstitutional and therefore void? 4. Can Congress expand the scope of the Supreme Courts original jurisdiction beyond what is specified in Article III of the Constitution? 5. Does the Supreme Court have original jurisdiction to issue writs of mandamus? Holding and Rule (Marshall) 1. Yes. Marbury has a right to the commission. The order granting the commission takes effect when the Executives constitutional power of appointment has been exercised, and the power has been exercised when the last act required from the person possessing the power has been performed. The grant of the commission to Marbury became effective when signed by President Adams. 2. Yes. The law grants Marbury a remedy.The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury. One of the first duties of government is to afford that protection. Where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, the individual who considers himself injured has a right to resort to the law for a remedy. The President, by signing the commission, appointed Marbury a justice of the peace in the District of Columbia. The seal of the United States, affixed thereto by the Secretary of State, is conclusive testimony of the verity of the signature, and of the completion of the

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appointment. Having this legal right to the office, he has a consequent right to the commission, a refusal to deliver which is a plain violation of that right for which the laws of the country afford him a remedy. 3. Yes. The Supreme Court has the authority to review acts of Congress and determine whether they are unconstitutional and therefore void. It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each. If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply. 4. No. Congress cannot expand the scope of the Supreme Courts original jurisdiction beyond what is specified in Article III of the Constitution. The Constitution states that the Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction. If it had been intended to leave it in the discretion of the Legislature to apportion the judicial power between the Supreme and inferior courts according to the will of that body, this section is mere surplusage and is entirely without meaning. If Congress remains at liberty to give this court appellate jurisdiction where the Constitution has declared their jurisdiction shall be original, and original jurisdiction where the Constitution has declared it shall be appellate, the distribution of jurisdiction made in the Constitution, is form without substance. 5. No. The Supreme Court does not have original jurisdiction to issue writs of mandamus. To enable this court then to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction. It is the essential criterion of appellate jurisdiction that it revises and corrects the proceedings in a cause already instituted, and does not create that case. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper is, in effect, the same as to sustain an original action for that paper, and is therefore a matter of original jurisdiction. Disposition Application for writ of mandamus denied. Marbury doesnt get the commission

District of Columbia v. Heller, 554 U.S. __, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008). Facts Handgun possession is banned under District of Columbia (D) law. The law prohibits the registration of handguns and makes it a crime to carry an unregistered firearm. Furthermore all lawfully owned firearms must be kept unloaded and dissembled or bound by a trigger lock unless they are being used for lawful recreational activities or located in a place of business. Dick Heller (P) is a special police officer in the District of Columbia. The District refused

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Hellers application to register a handgun he wished to keep in his home. Heller filed this lawsuit in the Federal District Court for the District of Columbia on Second Amendment grounds. Heller sought an injunction against enforcement of the bar on handgun registration, the licensing requirement prohibiting the carrying of a firearm in the home without a license, and the trigger-lock requirement insofar as it prohibits the use of functional firearms within the home. The District Court dismissed Hellers complaint. The Court of Appeals for the District of Columbia Circuit reversed and directed the District Court to enter summary judgment in favor of the District of Columbia. The Court of Appeals construed Hellers complaint as seeking the right to render a firearm operable and carry it in his home only when necessary for self defense, and held that the total ban on handguns violated the individual right to possess firearms under the Second Amendment. The Supreme Court granted certiorari. Issue 6. What rights are protected by the Second Amendment? Holding and Rule (Scalia) 6. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Text of the Second Amendment 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. Constitutional Construction The prefatory clause A well regulated Militia, being necessary to the security of a free State merely announces a purpose. It does not limit or expand the scope of the operative clause the right of the people to keep and bear Arms, shall not be infringed. The operative clauses text and history demonstrate that it connotes an individual right to keep and bear arms. The militia consisted of all males capable of acting together for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable citizen militias, thereby enabling a politicized standing army or a select militia to rule. The Antifederalists therefore sought to preserve the citizens militia by denying Congress the power to abridge the right of individuals to keep and bear arms. This interpretation is confirmed by analogous arms-bearing rights adopted in state constitutions immediately preceding and following the Second Amendment. Furthermore, the drafting history reveals three proposals that unequivocally referred to an individual right to bear arms. Interpretation of the Second Amendment by scholars, courts, and legislators from ratification through the late 19th century also supports the Courts interpretation.

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No precedent forecloses this interpretation. United States v. Miller limits the type of weapons to which the right applies to those in common use for lawful purposes, but does not limit the right to keep and bear arms to militia purposes. The Second Amendment right is not a right to keep and carry any weapon in any manner and for any purpose. The Court has upheld gun control legislation including prohibitions on concealed weapons and possession of firearms by felons and the mentally ill, laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, and laws imposing conditions and qualifications on the commercial sale of arms. The historical tradition of prohibiting the carrying of dangerous and unusual weapons supports the holding in United States v. Miller that the sorts of weapons protected are those in common use at the time. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The total ban on handgun possession in the home amounts to a prohibition on an entire class of arms that Americans overwhelmingly choose for the lawful purpose of self-defense. This prohibition would fail constitutional muster under any standard of scrutiny. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is therefore unconstitutional. The Court assumes that a license will satisfy Hellers prayer for relief and therefore does not address the constitutionality of the licensing requirement. Assuming Heller is not otherwise disqualified from exercising Second Amendment rights, the District of Columbia must permit him to register his handgun and must issue him a license to carry it in the home. Disposition Affirmed. Dissent (Stevens) The Second Amendment was adopted to protect the right of the people to maintain a well regulated militia. It was a response to the concern that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to state sovereignty. Neither the text of the Second Amendment nor the arguments advanced by its proponents evidence the slightest interest by the Framers in limiting any legislatures authority to regulate private civilian uses of firearms. There is no indication that the Framers intended to enshrine the common law right of self-defense in the Constitution. The view in Miller that the Second Amendment protects the right to keep and bear arms for certain military purposes, but does not curtail the Legislatures power to regulate the nonmilitary use and ownership of weapons, is both the most natural reading of the Amendments text and the interpretation most faithful to the history of its adoption. The majority fails to identify any new evidence supporting the view that the Amendment was intended to limit the power of Congress to regulate civilian uses of weapons.

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Dissent (Breyer) The Second Amendment protects militia-related interests, not self-defense-related interests. Furthermore, the Amendment permits government to regulate the interests that it serves. Colonial history itself offers important examples of the kinds of gun regulation that citizens would then have thought compatible with the right to keep and bear arms, including substantial regulation of firearms in urban areas, and regulations that imposed limitations on the use of firearms for the protection of the home. Adoption of a true strict scrutiny standard for evaluating gun control regulations would be impossible and I would adopt an interest-balancing inquiry. In applying this kind of standard the Court normally defers to a legislatures empirical judgment in matters where a legislature is likely to have greater expertise and greater institutional fact finding capacity. This case is also cited as DC v. Heller. See United States v. Lopez for a constitutional law case brief addressing the constitutionality of gun control legislation enacted by Congress in exercise of its power under the Commerce Clause.

Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1868). Facts After the Civil War, Congress imposed military government on many former Confederate States by authority of the Civil War Reconstruction Acts. McCardle (D) was a Mississippi newspaper editor held in military custody on charges of publishing libelous and inflammatory articles. McCardle filed a habeas corpus writ claiming that Congress lacked authority under the Constitution to establish a system of military government. The Act authorized federal courts to grant habeas corpus to persons held in violation of their constitutional rights and granted the Supreme Court the authority to hear appeals. The circuit court denied McCardles habeas corpus writ but the Supreme Court sustained jurisdiction to hear an appeal on the merits. After arguments were heard however, Congress passed an act on March 27, 1868, repealing the portion of the 1867 Act that allowed an appeal to the Supreme Court and the exercise by the Supreme Court of jurisdiction on any such appeals, past or present.

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Issues 1. Does Congress have the power to make exceptions to the Supreme Courts appellate jurisdiction in cases in which it has already granted jurisdiction? 2. Must the Court always first determine if it is has jurisdiction to review a case? Holding and Rule (Chase) 1. Yes. The Constitution gives the Supreme Court appellate jurisdiction, but it gives Congress the express power to make exceptions to that appellate jurisdiction. 2. Yes. The Court must always determine first if it is has jurisdiction to review a case. The court held that appellate jurisdiction of the Court is not derived from acts of Congress, but from the Constitution, and is conferred with such exceptions and under such regulations as Congress shall make. The court held that when Congress enacts legislation that grants the Supreme Court appellate jurisdiction over final decisions in certain cases, it operates as a negation or exception of such jurisdiction in other cases. In this case, the repeal of the act necessarily removed jurisdiction. Without jurisdiction, the Court cannot proceed; the only thing it can do is announce that fact and dismiss the cause of action. When a legislative act is repealed, it is as if it had never existed except in transactions past and closed. Thus, no judgment can be rendered in a suit after repeal of the act under which it was brought. Disposition Dismissed for lack of jurisdiction. Notes In this case, Congress withdrew the right to hear habeas corpus cases only when the Court got a case under the Act of 1867 on appeal from a lower court. The Supreme Court would still have been able to hear an original petition for habeas corpus filed in the Supreme Court. See Martin v. Hunters Lessee for a constitutional law case brief in which the Supreme Court of the United States held that it has appellate jurisdiction to review decisions of state courts involving issues of federal law

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Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962). Facts Charles Baker (P) was a resident of Shelby County, Tennessee. Baker filed suit against Joe Carr, the Secretary of State of Tennessee. Bakers complaint alleged that the Tennessee legislature had not redrawn its legislative districts since 1901, in violation of the Tennessee State Constitution which required redistricting according to the federal census every 10 years. Baker, who lived in an urban part of the state, asserted that the demographics of the state had changed shifting a greater proportion of the population to the cities, thereby diluting his vote in violation of the Equal Protection Clause of the Fourteenth Amendment. Baker sought an injunction prohibiting further elections, and sought the remedy of reapportionment or at-large elections. The district court denied relief on the grounds that the issue of redistricting posed a political question and would therefore not be heard by the court. Issues

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1. Do federal courts have jurisdiction to hear a constitutional challenge to a legislative apportionment? 2. What is the test for resolving whether a case presents a political question? Holding and Rule (Brennan) 1. Yes. Federal courts have jurisdiction to hear a constitutional challenge to a legislative apportionment. 2. The factors to be considered by the court in determining whether a case presents a political question are: Is there a textually demonstrable constitutional commitment of the issue to a coordinate political department (i.e. foreign affairs or executive war powers)? Is there a lack of judicially discoverable and manageable standards for resolving the issue? The impossibility of deciding the issue without an initial policy determination of a kind clearly for nonjudicial discretion. The impossibility of a courts undertaking independent resolution without expressing lack of the respect due coordinate branches of government. Is there an unusual need for unquestioning adherence to a political decision already made? Would attempting to resolve the matter create the possibility of embarrassment from multifarious pronouncements by various departments on one question? The political question doctrine is based in the separation of powers and whether a case is justiciable is determined on a case by cases basis. In regards to foreign relations, if there has been no conclusive governmental action regarding an issue then a court can construe a treaty and decide a case. Regarding the dates of the duration of hostilities, when there needs to be definable clarification for a decision, the court may be able to decide the case. The court held that this case was justiciable and did not present a political question. The case did not present an issue to be decided by another branch of the government. The court noted that judicial standards under the Equal Protection Clause were well developed and familiar, and it had been open to courts since the enactment of the Fourteenth Amendment to determine if an act is arbitrary and capricious and reflects no policy. When a question is enmeshed with any of the other two branches of the government, it presents a political question and the Court will not answer it without further clarification from the other branches.

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Vieth v. Jubelirer, 541 U.S. 267, 124 S. Ct. 1769, 158 L. Ed. 2d 546 (2004). Facts Pennsylvanias General Assembly passed a redistricting plan after the state lost two seats in the House of Representatives. Republicans controlled the governors office and both houses of the state legislature. Vieth et al. (Ps), residents of Pennsylvania registered to vote as Democrats, brought suit in federal district court against the State and officers involved in implementing the plan (Jubelirer et al., Ds). Vieth alleged that the plan violated the one person one vote requirement of Article I Section 2 of the United States Constitution, and that the plan was a political gerrymander in violation of Article I and the Equal Protection Clause of the Fourteenth Amendment. Jubelirer moved to dismiss. The three judge panel granted the motion to dismiss the political gerrymandering claim. The court dismissed the remaining claims against the State on Eleventh Amendment grounds, but did not dismiss the other claims against Jubelirer and the other remaining defendants. At trial, the court entered judgment for Vieth and retained jurisdiction over the case

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pending the courts approval of a new plan. The governor then signed into law a new redistricting plan designed to cure the apportionment problem. Vieth moved to impose their own new redistricting plan in favor of the States new plan on the same grounds as its predecessor. The district court denied Vieths motion, holding that the States new plan was not malapportioned. Vieth appealed and the Supreme Court granted cert. Issue 7. Is political gerrymandering nonjusticiable? Holding and Rule (Scalia) 7. Yes. Political gerrymandering is nonjusticiable. No judicially discernible and manageable standards for adjudicating claims of gerrymandering exist. The plurality therefore would overrule Davis v. Bandemer. In Bandemer, the Court held that such claims are justiciable but could not agree upon a standard for assessing political gerrymandering claims under the facts. The Framers provided a remedy for the problem of gerrymandering: the Constitution gives state legislatures the initial power to draw federal election districts, but authorizes Congress to make or alter those districts. In Bandemer, the Court held that the Equal Protection Clause also grants judges the power and duty to control that practice. However, neither Article I, 2 or 4, nor the Equal Protection Clause, provides a judicially enforceable limit on the political considerations that the States and Congress may take into account when districting. One of the tests for nonjusticiability or political question is a lack of judicially discoverable and manageable standards for resolving the question (see Baker v. Carr). The court held that because the Bandemer court was unable to discern what the standards for deciding gerrymandering cases might be, and because no standards could be discerned in the following eighteen years, such issues are in fact nonjusticiable. Concurrence (Kennedy) I would not foreclose all possibility of judicial relief if some limited and precise rationale were found to correct an established Constitutional violation. There is a fundamental lack of comprehensive and neutral principles for drawing electoral boundaries, and an absence of rules to limit and confine judicial intervention. A determination that a gerrymander violates the law must rest on a conclusion that the classifications, though generally permissible, were applied in an invidious manner or in a way unrelated to any legitimate legislative objective. With no agreed upon substantive principles of fair districting, there is no basis on which to define clear, manageable, and politically neutral standards for measuring the burden a given partisan classification imposes on representational rights. Suitable standards for measuring this burden are critical to our intervention. Arguments for holding cases like this to be nonjusticiable are not so compelling that they require the Court now to bar all future partisan gerrymandering claims. That a workable

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standard for measuring a gerrymanders burden on representational rights has not yet emerged does not mean that none will emerge in the future. The Court should adjudicate only what is in the case before it. Disposition Judgment affirmed. Notes There was no majority opinion in this case. There were four justices in favor of Scalias opinion and a concurrence by Kennedy. This case therefore did not overrule Davis v. Bandemer

Powell v McCormack S. Ct. 1969 Facts: Powell was elected by the citizen of NY to be their Representative in the House for the 90th Congress. When the oath was being administered he was asked to step aside. A Select Committee determined that although Powell met the Constitutional requirements, they felt because he asserted an unwarranted privilege of immunity from NY courts, and wrongfully diverted funds, and made false reports on expenditures of foreign currency, he should be excluded from taking his seat. House speaker McCormack determined that a majority vote would render Powells seat vacant, and a vote thereby was rendered. Issue: Whether the House alone, under Article I, Sec. 5, has the power to determine who is qualified to be a member, under the textual commitment, to be the judge of the qualifications of is own members? Holding: No, the House can only judge the three qualifications as set forth in the Constitution. Procedure: District Ct. dismissed for lack of jurisdictional subject matter. Ct of App

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affirmed Dismissal. Reversed. Rule: Requirements for a seat within the Congress, AI; S2, age, citizenship, and residence. Ct. Rationale: Article I, Sec 5 does not confer judicially unreviewable powers upon the Congress as it relates to the setting of qualifications of its members. If it did that would be a political question that this court would be barred from entering into. Historically the Constitution leaves the House without authority to exclude persons, who met the Constitutional requirements, and who have been duly elected by their constituents. Congress has the power to punish its members behavior, and expel but it does not have the Constitutional power to exclude or deny entrance. PL A: The Constitution provides definite criteria for entrance into the House of Representative, and does not confer the power to exclude afterward to members of the House. Def A: Under the Constitutions AI, S5 the House has power to determine the qualifications necessary for membership within. Political Questions: Lack of respect due a coordinate branch of government, or involvement in the initial policy determination of a kind clearly for non-judicial discretion

Goldwater v Carter S. Ct. 1979 Author: Sam Biers Facts: President Carter terminated a defense treaty with Taiwan. Neither the Senate nor the House have taken action to prevent or contest the action. Several members brought this claim alleging the President has deprived them of their Constitutional role. Issue: Whether the President, in terminating at treaty with another country, needs the approval of Congress, and if so does it involve a political question? Holding: The issue involves a political question. Procedure: Ct. of App. judgment is vacated and the case remanded to D. Ct. for dismissal. Rule: The President is authorized to make treaties with the advise and consent of the Senate. Treaties shall be a part of the supreme law of the land. Judicial action is barred where there is an unusual need for unquestioning

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adherence to a political decision already made. Issues affecting allocation of power are unreviewable. Constitutional text which grants exclusive responsibility to a particular governmental function to one of the branches, and thereby eliminating the courts interference in the business of those other branches. Ct. Rationale: If Congress had challenged the Presidents authority to terminate, then the court would have justiciable issue to decide. Without a challenge the issue only involves a political question. Neither the Senate nor the House have taken any action, thereby rendering the case unripe for decision. There is no specific language preventing the President from terminating treaties without approval. There is no showing that Congress has rejected the Presidents claim. It is Congress choice to challenge the President not the Courts. Where the Constitution is silent this case is controlled by political standards. Congress has terminated treaties without Presidential approval. PL A: The Constitution makes specific mention that the President needs the approval and consent of the Senate to make a treaty, therefor the contra positive is true: President cannot terminate a treaty without approval and consent of the Senate. If so, a constitutional case and controversy are ripened for decision. Whether the decision making authority is Constitutionally valid is a determination left to the courts. Def A: The issue is a political question where the PL is asking the court to issue an advisory opinion on whether the President can or cannot terminate a treaty