A leading indicator of the clarity of my classroom presentation is the number of student questions that ensue. And yesterday's class prompted many, many questions. So I apologize if yesterday's class left you in the dark.
Sort of. Of course, this material is pretty complicated, and there is no way to present the interesting nuances without leaving you a little bit confused, at least at first exposure. You deserve much more than a dumbed-down, two-dimensional oversimplification -- a reduction of real-life complexity into (supposedly, but inaccurately) clear, black-letter rules. Law, and certainly constitutional law, is not so simple.
Indeed, the skill of dealing with such complexity is why people are willing to pay lawyers. This is largely the point of legal education: to give you an opportunity to learn, in a relatively safe environment, how to sort out much of this confusion for yourselves. It is not confusion for the sake of confusion. But your clients will not be presenting you with tidy hypotheticals match up on all fours with cases you have already encountered. Not to put too fine a point on it, but law school classes that were nothing more than glorified bar review courses -- a litany of specific rules for you to plug into your outlines and memorize -- would be useless.
So, with those prefatory remarks out of the way, I will endeavor to answer the many questions in my in-box, as best I can, and as soon as I can. I love the questions; please keep them coming. But try to disabuse yourself of the notion that there are very specific, clear "rules" that you are to supposed to "take away" from each class.
Here goes:
QUESTION: Were we basically suppossed to take away today the idea that the Constitution can be read in various ways and depending on how you interpret the words of the Constitution, then a decision can be made in both directions for something being constitutional or unconstitutional? For instance, in terms of the power of the Supreme Court and its power of judicial review, one reading of its power can be that they have the final say on constitutional issues, and another reading can be that it is just one department that has a say?
ANSWER: This is generally true, and it is specifically true as to the breadth of judicial review. But I would add three points. (1) Some interpretations of the Constitution are better than others, as an objective matter. I do not subscribe to the radical deconstructionist belief that language is completely indeterminate. (2) I think we have tended, over time, towards the judicial supremacy view; the Court's interpretations of the Constitution, at least in practice, appear to bind the other branches, except in the rare circumstances in which it directly conflicts with a central political objective of the governing party (or President). And the reason, I believe, is that we as a society are generally more comfortable with judicial supremacy. (3) Isn't this true of all of your classes? Isn't tort law also quite indeterminate? I don't think the meaning of "proximate cause" is any clearer than the breadth and depth of the Supreme Court's power of judicial review.
QUESTION: Is there no final say on whether the President can question the ruling of a Supreme Court decision that the Court deems Constitutional, like the Jackson example? What happens when the President goes against a Supreme Court decision, just because the Court interprets the Constitution a different way? Or in the Dickerson case, what gave the Supreme Court the right to say that its constitutional rule stated in Miranda was any more constitutional then the enacted Congressional statue? They both just had different interpretations. Where is the checks and balance system?
ANSWER: I do not think there are any clear answers to any of these questions, at least as a matter of formal logic. But we do have some idea of what has actually happened when these events have occurred in real life. As to Dickerson, the answer, I guess, is that Congress, the President, the police, and the People of the United States seem to have accepted the Court's understanding of its role and the specific holding that Miranda warnings must be given. The same was true of Jackson's bank veto. Congress was unable to re-enact a bank bill or overturn Jackson's veto. And the People re-elected Jackson, and not long after his veto.
QUESTION: Congress can not "except," from the Suprme Court constitutional issues, or take away from the Supreme Court's original jurisdiction, but it can "except," the Court's appellate jurisdiction in other matters of the law, such as they did with habeas corpus. Is this correct?
ANSWER: I think McCardle is pretty ambiguous on these points. Surely Congress can make some exceptions to the Court's appellate jurisdiction on constitutional questions. That is precisely what it did in McCardle itself, which the court upheld. But what Congress did not do is completely foreclose any avenue for McCardle (or persons like McCardle) from appealing their constitutional claims to the Supreme Court. This is what the Court notes in the last paragraph. If Congress had done so, would the repealing act have been unconstitutional? I don't think McCardle answers that question. My own view is that Congress probably has the authority to except some issues (including constitutional issues) from Supreme Court review. (I believe this in part because the Judiciary Act of 1789 did so, and that Congress probably had some idea what the Exceptions Clause was intended to permit). But the precise scope of this power remains unclear.
QUESTION: Further, is an "exception," okay as long as it leaves open at least one avenue to get to the Supreme Court? It seems that that is what the Court is saying in McCardle -- that because McCardle could have invoked the jurisdiction provided under the Judiciary Act of 1789, or gone through state court appellate process, that the repealing act was okay. What would happen if Congres took away all appellate jurisdiction to the Supreme Court, both through federal courts and State courts? Would this be constitutional, or does it depend on one's reading of the Constiution?
ANSWER: Again, I think it is unclear. My own view is that Congress, at least through a "neutral" looking statute (such as one concerning the amount in controversy in a civil suit) would be a permissible exception to completely close off Supreme Court review. But I do not think we have an airtight, clear answer to this question under current law.