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Constitutional Law I
Rutgers University, Newark School of Law
Pope, James Gray


Federal Law
1)       Constitution
2)       Statutes
3)       Administrative Regulations
4)       Common Law

State Law
5)       Constitution
6)       Statutes
7)       Administrative Regulations
8)       Common Law


Sources (priority order)
1) Textual Method
2) History
a) Original Intent
b) Original Meaning
c) vectors/tradition
d) Synthetic
3) Structure
4) Precedent (doctrine
5) Prudential/Consequential
6) Culture/Ethos
7) Natural Law

A) Sources of Constitutional Interpretation
1) Textual
– Starting point
– “is drawn from a present sense of the words of the provision”
– Conflict between meaning now and in past
– if present sense conflicts with words at time words    were written then the text at time words were written  is going to prevail
– A real textual argument is highly likely to be connected with an             original meaning argument
– Look at historical sources (ie contemporary dictionary)

2) History
– Two forms
1) Organilism
i) determining the original intent of the drafters of the Constitution
ii) establishing the original meaning of its text
2) Vectors of History (less static)

a) Original Intent
– attempt to discover the authorial intent behind any constitutional provision
– focus on the original intent of the drafters prevents, or at least inhibits, the tendency of politically unaccountable judges to remake the Constitution to reflect their personal preferences
– application of the provision, not the principle

b) Original Meaning
– attempt to determine what the text meant at the time it was adopted
– can be more easily determined by reference to contemporary interpretations of the text
c) Tradition (vectors of history)
– history as vectors is dynamic
– Justice Harlan – it is a “living thing”
– expanding freedoms, expanding people that enjoy the freedoms (evidence of this is a large chunk of the amendments)
– Level of Generality
– Scalia says “general traditions provide imprecise guidance and permit judges to dictate rather than discern the society’s view. A rule of law that binds neither by text nor by any particular, identifiable tradition, is no rule of law at all
– Brennan says Scalia’s “approach squashes this freedom by requiring specific approval from history”
– commentators, judicial opinions, legislative debates

d) Synthetic Interpretation
– Divided into 3 periods:
1) Founding to the Civil War
2) Reconstruction to the New Deal
– changes that occurred after the civil war in the constitution (13-15th A) amounted to a regime shift – the changes were so major they altered the field of interpretation of the constitution
– fundamentally changed field of interpretation favoring national government over state autonomy to a much greater degree than prior to the civil war and governmental protection of fundamental individual rights
3) New Deal to the Present
– during the new deal no real textual changes but c. law was changed again
– property and contract rights reversed
– led to a further increase in the national power and further shift away from the idea of individual rights as something that need to be protected against government and government may be useful in protecting individual rights (ie – rights for workers to organize)
– makes it synthetic because after each transformation constitution revolves a synthesis of the spirit and structure of the constitution as how it was enacted
– can’t view first amendment in same way you would have viewed it before
– ie hate speech takes on a different kind of interpretative tilt because of “1-2 synthesis”

3) Structure
– “claims that a particular principle or practical result is implicit in the structures of government and the relationship that are created by Constitution among citizens and governments”
– postulates about the type of governance created by the Constitution
– fill the gaps left by the government structures created by the Constitution
– Common when the underlying issue is:
1) federalism – the proper allocation of power between the federal and state governments
2) separation of powers – the propose allocation of federal power among the three branches of the national government
3) Majority institutions go after a vulnerable minority

4) Precedent (doctrine)
– “asserts the principles derived from precedent and sometimes judicial or academic commentary on precedent”
– familiar common law method
– weak because of the extreme difficulty of correcting constitutional decisions of the Supreme Court
– stare decisis – policy (not a rule of law)
– consistency is valuable because people rely on the law and need to be able to predict what the law is going to say

5) Prudential/Consequential
– “advancing particular doctrines according to the practical wisdom of using the courts in a particular way”
– most removed from the more traditional sources of con law
– many arguments surrounding the proper separation of powers are prudential arguments

6) Culture/Ethos
– rooted in widely shared cultural norms, such nontextual sources as moral concepts of justice, theories of human autonomy, and cultural assumptions about fairness
– by themselves, these arguments are not necessarily constitutional arguments, but when they are used in conjunction with other forms of constitutional argument, they can be of considerable persuasive force
– Examples
1) Brown v. Board of Education (striking down official school segregation by race)
2) Plyer v. Doe (voiding a Texas law denying free public education to children illegally present in the US)
3) Romer v. Evans (invalidating a Colorado constitutional amendment prohibiting any unit of government from making of applying antibias laws in favor of homosexuals)

7) Natural Law
– highly questionable to its legitimacy but it can be brought in by including it with the ones above
– can be very persuasive
– 14th Amendment – Due Process

B. Interpretation or Imagination
1) Noninterpetivists
– should not even attempt to figure out what the text of the Constitution means, instead we should make it a mirror of our present sense of fundamental justice
– courts are not limited to constitutional text

2) Intepretevists
– only legitimate form of judicial review is interpretation of written text of Con.

3) Calder v. Bull (Natural Law)
a) Facts
– Connecticut’s legislature set aside a probate court decision refusing to approve a will by enacting a law that required a new hearing. At the second hearing the will was approved. The heirs who would have taken the estate’s assets had the will been ineffective challenged the Connecticut law as an ex post facto law
b) Holding
– The court rejected the claim, finding that the ex post facto clause applies only to criminal laws
c) Debate between interpretivism and non-interpretivism
1) Chase takes Noninterpetivist point of view
– an act of the legislature contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority
2) Iredell takes intepretevist point of view
– says judges job is not to be enforcing principles that come out of some imaginary social compact and the main reason is because idea of natural justice is established by no fixed standard and all court can do is say we disagree with the legislature
– if court goes into natural law they are not enforcing law and simply becomes another body with opinions just like the elected legislature
– almost no one today will make a natural law view standing ALONE
– disagreement on something but a fair amount of agreement because there are still people who push natural law in pure form (small minority of theorists) but people who do use it normally incorporate it into other types of arguments

C. Change/Modernization
– How to handle change and modern conditions into account (comes up in textual method and history method)
– Functionalist view
– Scalia in Heller says it is frivolous that arms applies only to those arms that were originally there when framers formed constitution
– says should apply to all bearable arms even those not in existence at time of founding
– very strict reading of original meaning can still account for change
– taking a functional view of the term arms (commonly used for lawful purposes)
– abstract formulation, inserting in there something that can be applied to any given weapon
– Originalist View
– only dealing with reality as if the time they are around and have nothing to say as anything that has happened since
– need to make change based arguments applying to the text for originalist to buy it and would make sense when provision was enacted as well as today
– try to make it an application to changed conditions


A. 3 Standards
1. Reasonable Scrutiny (minimal, default)
– Presumption/Trigger
– Courts begin with the presumption that statutes and other government actions are valid
– Burden/Standard
– Unless there is some reason to doubt the presumption, the challenger has the burden of proving that the law, regulation, or executive act is not rationally related to a legitimate government objective
-Interest – Rationally related to the objective
– so long as the government’s reason for acting is legitimate (within the granted powers of the government in question and not violative of some constitutional restraint on the exercise of those powers) it will be accepted
– the courts generally (but not always) accept any hypothetical objective as the government’s goal, whether there is any evidence that the hypothesized objective was the actual objective
– Applied
– the Court generally applies minimal scrutiny to questions of whether Congress has exceeded its granted powers (ie – is an act of Congress a valid exercise of the power to regulate interstate commerce?)
– the court also applied a form on minimal scrutiny to claims that onerous government regulations have the effect of taking private property without just compensation, as required by the 5th A., or to other claimed property protections under the due process or equal protection clauses

2. Strict Scrutiny (compelling interest)
– Presumption/Trigger
– presumptively invalid/suspect
– Example (equal protection clause): a statute that classifies by race
– Burden/Standard
– the defender of the government action has the burden of proving that the law or executive act is necessary to accomplish a compelling government objective
– Interest
– the government’s actual reason for using the presumptively invalid criterion must be very important and the use of the criterion must be essential to accomplish that goal
– Rare instance standard has been met
– the use of race to remedy official racial segregation
– in order to achieve the compelling goal of dism

states the purpose for incorporating it into the constitution via a specific textual provision
– other fundamental rights in constitution were left out
e) Post Ratification Commentary – Rawle – denied government power to disarm the people.
f) Miller Case – expounds on what kind of arms are protected, generally those used by regular people for hunting and self defense, not sawed off shotguns and uzi’s.
g) Holding: As to the statute at issue, the inherent right of self defense has been central to the 2nd amendment right. The handgun ban amounts to a prohibition on an entire class of arms overwhelmingly chosen by American society for a lawful purpose. The prohibition extends moreover to the home, where the need for self defense of self, family, and property is most acute.
i) Dissent: Question of the case is whether or not the 2nd amendment protects firearms used for non-military purposes like hunting and self defense purposes.
1. The most natural meaning of the 2nd amendment is to protect use of firearms in conjunction with military activities.
2. The fear was that while Congress had the power to regulate the militia, they also had the power to disarm it. Also, there was a fear that a large standing army would be tyrannical.
3. Madison’s first draft was very military in nature and included conscientious objectors.
4. Next dissent asks what constitutional standard should be used to decide if certain laws are unconstitutional.
1. Rational basis standard? – preventing gun accidents, the law bears a rational relationship to that legitimate state interest.
2. Heller proposes a strict scrutiny standard, reviewing each gun law to determine whether it is narrowly tailored to achieve a compelling governmental interest

j) Sources in Heller
Stevens Dissent
Text – Present Day Meaning
The three other provisions of the Constitution that refer to rights held by “the people” – the 1A assembly and petition clause, the 4A search and seizure clause, and the 9A – “unambiguously refer to individual rights, not ‘collective’ rights . . .”

After saying that “the people” must mean the same thing in all provisions, the majority “limits the protected class to ‘law-abiding, responsible citizens.’” But the 1st& 4th amendments protect even felons.
History – Original Meaning
Contemporary dictionaries: In dictionaries of the time (e.g., 1771), “arms” included “weapons that were not specifically designed for military use and were not employed in a military capacity.”

Contemporary usage:“In numerous instances, ‘bear arms’ was unambiguously used to refer to the carrying of weapons outside of an organized militia,” for example, in the Pennsylvania and Vermont Constitutions, which were enacted prior to the 2A, as well as various provisions enacted afterward.

Legislative history of the Amendment: “It is always perilous to derive the meaning of an adopted provision from another provision deleted in the drafting process. In any case, what JUSTICE STEVENS would conclude from the deleted provision does not follow. It was not meant to exempt from military service those who objected to going to war but had no scruples about personal gunfights.”

Historical context, purpose:“During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric. . . .”

The term “bear arms” is derived from the Latin arma ferre, which, translated literally, means ‘to bear [ferre] war equipment [arma]. . . One 18th-century dictionary defined “arms” as “weapons of offence, or armour of defence,” 1 S. Johnson, A Dictionary of the English Language (1755), and another contemporaneous source explained that “[b]y arms, we understand those instruments of offence generally made use of in war; such as firearms, swords, & c.”*

Flips the majority’s point, arguing that the 2A’s “omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense, is especially striking in light of the fact that the Declarations of Rights of Pennsylvania and Vermont did expressly protect such civilian uses at the time. . . .”

“Madison’s initial inclusion of an exemption for conscientious objectors sheds revelatory light on the purpose of the Amendment. It confirms an intent to describe a duty as well as a right, and it unequivocally identifies the military character of both.”

“Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.”