1. Constitutional Intepretations
A. originalism-judges deciding constitutional issues should confine themselves to enforcing norms that are stated or clearly implicit in the written Constitution – view – desirable to limit unelected judges in a democratic society
B. non-originalism-courts should you be on that set of references and enforce norms that cannot be discovered within the four corners of the Constitution; view – essential so that the Constitution does not remain virtually static and therefore can evolve
C. Forms of Constitutional Interpretation
i. Textual – originalist style argument (using the words and construction of words) – Interpretation of Necessary
ii. Intent of the Framers – framers intend did at the time or if the framers were shot forward 200 years (wire tapping and phone did not know about some free reign or infringe upon right of privacy – Baltimore v Barron)
iii. Historical Practice – what those words they meant at the time they were written, this is what the framers did (Roe v Wade) – abortion allowed; Slide around – any prior to case at hand
1. historical meaning – at the time the words were added to the Constitution; Civil war amendments
iv. Precedent (Doctrine) – Primary part of the answer (use precedent and expand from there)
v. Prudentialism – common sense arguments (real word) – Consequence arguments “Power to tax is power to destroy”
vi. Constituional Structure – counter majoritarian argument (
1. separation of power; Commerce Clause; Dormant Commerce Clause
2. Lawrence v Texas
a. Constitutional Structure
i. Democracy – let the legislative decide
ii. Individual rights – courts to protect the minority
vii. Ethos – traditional
1. Lawrence v Texas
a. Ethos – Kennedy argument is based on ethos (the most obvious example of the Ethos opinion)
i. Says it is just wrong
A. Three Standards of Review
i. three standards:
1. mere rationality: of the three standards, the easiest to satisfy is the “mere rationality” standard. The court applies his mere rationality standard, the court will uphold the governmental actions along as two requirements are met:
a. legitimate state objective: first, the government must be pursuant a legitimate governmental objective. This is a very broad concept — practically any type of health, safety, or general welfare goal will be found to be legitimate.
b. Rational relation: second, there has to be a “minimally rational relation” between the means chosen by the Government and the State objected. This requirement, too, is extremely easy to satisfy: only the government has acted in a completely “arbitrary and irrational” label is rational link between means and and not be found.
2. Strict scrutiny: at the other end of the spectrum, the standard that is hardest satisfies the strict scrutiny standard of review. The standard will only be satisfied if the Government act satisfies to very tough requirements:
a. Compelling Objective: first, the objective being pursued by the government must be compelling (not just legitimate, as for the mere rationality standard); and
b. Necessary Means: second, the means chosen by the government must be necessary to achieve a compelling and. In other words, the fit between means and the and must be extremely tight. (It’s not enough that there is a rational relation between means any end, which is enough under the mere rationality standard.)
i. No less restrictive alternatives: in practice, this requirement that the means be necessary means that there must not be any less restrictive means that would account government’s objective just as well.
3. Middle level review:
a. important objective: here, the governmental objective has to be “important” (between legitimate and compelling).
b. Substantially related means: Ann, the means chosen by the government must be substantially related to the important government at objective (between rationally related and necessary).
ii. When used:
1. mere rationality:
a. dormant Commerce Clause:
b. substantive due process:
c. contracts clause
2. strict scrutiny:
a. substantive due process/fundamental right
3. The Supreme Court’s authority and the federal judicial power
A. the Supreme Court’s authority in the federal judicial power; Marbury principle
i. Supreme Court review of state court decision: the suprme court may review state court opinions, but only to the extent that the decision was described based on federal law.
1. Independent and adequate state grounds: even if there is a federal question in the state court case, the Supreme Court may not review the case if there is an “independent and adequate” state ground for the state court’s decision. That is, if the same result would be breached even had the state court made a different decision on the federal question, the Supreme Court may not decide the case. This is because its opinion would in effect be in “advisory” one.
a. Violations of state and federal constitutions: it is state action violates the same clause of both state and federal constitutions (e.g., the equal protection clause of each), the state court decision may or may not be based on an “independent” state ground. If the state court is saying, “the states action would violate our state constitution whether or not it violated the Federal Constitution,” that “independent.” With the state court is saying “base and our reading of the constitutional provision (which we think is the same meaning under both the state and federal constitutions), this state action violates both constitutions,” this is not in dependence of the Supreme Court may review the state court decision.
2. Review limited to decisions of highest state court: Federal statutes limit Supreme Court reviewed decisions of the highest state court available. But this does not mean that the top ranking state court must have ruled on the merits of the case in order for the Supreme Court to review it. All that is required is that the case be heard to the highest state court available to petitioner. (Example: estate trial court finds a particular state statutes be valid under the federal equal protection clause. Intermediate appellate court in the State firms; a highest state court refuses to hear an appeal from the affirmance. As a matter of both the federal judicial power in the federal statutes, th
hat is that the injury would not have occurred unless the challenged action had taken place; and
b. Redressability: plaintiff must show that a favorable decision in this suit will probably redress the injury to him.
1. City of LA v Lyons: lyons can sue for damages for the choke hold, but not for injunctive relief
a. Can Hseih bring the lawsuit because she fears being choked? No, than why can Lyons sue since the future likelihood is the same as Hseih
2. Duke Power Company: Individuals challenged the constitutionality of the Price-Anderson Act, which limits liability of utility companies in the event of a nuclear reactor accident
a. Held, SC found standing to exist because construction of a nuclear reactor in P’s area subjected them to many injuries, including exposure to radiation, thermal pollution, and fear of major nuclear accident and so forth. Nuclear reactor would not have been built but for the Price Anderson Act.
i. Exceptions: none lesser courts recognize a few situations where a case it would appear to be moved will nonetheless be heard.
1. Capable of repetition yet evading review: This capable of repetition, yet evading review doctrine takes care of situations in which, if the case were to be declared made, a different person might be injured in the same way by the same defendant, and this claim, too, would be mooted before review could be had.; Roe v. Wade –
2. Voluntary cessation by defendant: the case will generally not be treated as moot if the defendant voluntarily ceases the conduct – unless the defendant shows that there is no reasonable likelihood that he will return to his old ways, the Courts will let the action go forward.
3. Collateral consequences: finally, the case will not be moot even if it is mostly decided, if there are still collateral consequences that might be adverse to the defendant.
a. Ex: For instance, suppose that a criminal defendant of his conviction comes before the Federal Court. The case will not be moot, because there will probably be future collateral consequences to the defendant from his conviction (e.g., you lose the right to vote, his reputation or employability will be damaged, etc.)
4. class action suits — properly certified class-action suits may continue even if the named plaintiffs’ claims are rendered moot since members of the class may have a live controversy, the case can continue.
Uncertain enforcement of criminal statute: one common ripeness problem arises where the plaintiff attacks the constitutionality of the