CON LAW OUTLINE – KENDALL
5 TECHNIQUES OF CONSITUTIONAL INTERPRETATION
· TEXT
o A careful examination of the textual provision itself
o Gibbons v. Ogden (1824)- struck down NY steamboat monopoly because court found it conflicted with a federal licensing statute.
I- whether the Commerce Clause (art I, §8, cl 3) gave congress the power to adopt the act.
JM reasoning- closely examine the words of the clause- “commerce”- intercourse; (JM broad) commercial intercourse between the nations and parts of nations in all branches
ú intercourse= exchange between 2 parties
“among”- intermingle with, commerce that concerns more than one state
“the several states”- broader than interstat commerce, but also when the commerce within one state affects others too
“regulate”- kill, destroy, wipe out, eliminate; a rule bu which commerce to be governed
o literal justice black in textile
o Meaning of the term stopped growing at the time it was written so futer interp. No
· ORIGINAL INTENT
o If the intent of those who drafted the constitutional provision is discernable, many judges take this into account- whether or not bound by it
§ Problem sometimes that Framers may never have confronted the issue in front of court, or the evidence may not indicate what the majority thought about it
o Cohens v. Virginia(1821)- court quoted from the Federalist Papers to demonstrate that those adopting the Constitution expected the SC to review state court decisions involving federal constitutional issues
§ Federalist 78- the problems with leaving the ultimate constitutional review to judges not wholy independent
o Court rarely feels bound by original intent- espt re: those involving gov’t interference and protecting individual rights
§ Lawrence v. texas (?)
o who are the original drafters, obvi the opeple at convection presented it to people who adopted in in some form and how did you find out what the original intent was
o Motive v. purpose difference
· CONSTITUTIONAL STRUCTURE
o 2 structural principles often used to add meaning to textual provision when it is ambiguous, or as a source of meanig on their own
§ Seperation of Powers- division of fed gov’t into 3 distinct branches
§ Federalism- division of power between fed and states
o New York v. US (1992)- based on federalism, held the framework fo the Constitution bars congress from impairing the states soverignty by forcing them to enact and administer a federal radioactive waste disposal program. The structural alaysis not from textual provision, but through the mention of the 10th amendment- and court noted it placed no limits on the federal gov’t but rather the amendment recognizes that the effect of OTHER limits on the nat’l gov’t- such as those that derive from the structure of the constitution- may be
precedent is freeer to do so in constitutional law than any other area
§ Justice Brandeis- stare decisis is usually the wise policy, becuase in most matters it is more important to settle the applicable rule of law than to settle it right- privided correction can be had by legislature. BUT in const. cases, where corection though legislation practically impossible, court often overrules earier decisions
o Lopez- rehnquist cites all ND cases as good law
need 2 indiv interpretations of each and explain you understand the method
Fed. 37- (Madison) 3 reasons why interpretation needed
· No precedent
· Perspicuity- ideas should be distinctly formed, but they should be expressed but words distinctly and xclusively to them and there is no lang that really does this
· Imperfections of man
· How to promote stability and energy in govt
What does JM point to when he argues SC has last word of meaning of constitution
· has authority to tell pres what he can do
· declare acts of congress unconstitutional
· in a sense defy the role of the people
JM- 4 textually based arguments of judicial review:
