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Constitutional Law I
South Texas College of Law Houston
Kelso, R. Randall

CONSTITUTIONAL LAW

10. Introduction to Constitutional Law

a) Interpretation–Things to look at when interpreting

i) Contemporaneous sources

a) Text

(1) Letter and Purpose

(2) This is where you start

(a) Does not always give a clear meaning

b) Structure

(1) Context / Related Provisions

(2) Federalism

(3) Separation of Powers

(4) Role of Court

c) History

(1) historical evidence

(2) Specific Intent (specific issue) / General Intent (general concerns)

ii) Subsequent Events

a) Later legislative or executive action

(1) most judges give some respect to decisions

b) Judicial Precedents

iii) Non-Interpretive Consideration

a) Sound social policy

(1) activism v. restraint

(2) most controversial

6 Things judges will look at in cases:

1. Text: a. literal
b. purpose

2. Context: a. related provisions

a. background elements

1. federalism

2. separation of powers

3. role of court

3. History: a. specific

b. general

4. Later leg./exec. Practice: i.e. president ordering troops around.

5. Judicial Precedents

6. Contemporary social policy

4 Main approaches to how the Const. Has been interpreted:

Formalism
1873-1937

Holmesian
1937-1954

Natural Law
1789-1872

Instrumentalist
1954-1986

1. literal text

2. specific history

1,2,3,4*

1 – 5*

1 – 6*

Static – meaning is fixed by these things today, as it was 200 yrs. Ago.

*deference to other branches of govt. and so only unconst’l. if clearly against what the other branch has done.

*holds strong to judicial precedents

Constitution

(4) done to show up Jefferson

c) Appellate Jurisdiction

(1) Federal circuit courts/ state supreme courts

(2) Admiralty / Maritime (b/c waters are international) / Prohibition (b/c it’s a special branch of law).

(3) Mandamus-against persons holding office

d) Result–Marbury had right to sue

ii) Marshall is trying to create a problem to show the power of judicial review

iii) Rule violation — Statute or Constitutional

a) Marbury had a “vested legal right”

iv) Mandamus was proper remedy

d) Notes

i) Constitutional structure–supreme in its power over statutes

ii) If legislature to decide (review) actions of court, they could pass laws validating actions

iii) If judiciary is unbiased and holds the Constitution as the standard regarding statutes, then àOK

iv) There is no reference to specific or general intent of the Framers ideals