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

Study Materials
Constitutional Law
Professor Kelso
Court Interpretation/Judicial Review
Text of the constitution (time document is ratified)
Literal definitions of the words used, or
Purpose behind the drafting of the particular clause
Drafters of Constitution expected the document would be interpreted using both
When there is text, judges will still look at context
Context how does this clause relate to the clauses surrounding it (time document is ratified)
Related Provisions
History – this gives you the idea as to what problems the framers were looking at (time document is ratified)
Specific – specific historical evidence about particular clauses (look at history of papers, notes, etc.)
General – Historical backdrop (society, civil war, etc.)
If your main sources of info for interpretation are Text, Context, History you will have a Static Consititution which will not change its meaning over time (Judges that believe this are called Formalist judges 1873-1937) (Scalia & Thomas) – They may also pay respect to some precedent under “settled law”
Two policy arguments for originalism/formalism:
The very nature of interpreting a document requires that its meaning be limited to its specific text and its framers’ intentions
It is desirable to constrain the power of unelected judges in a democratic society
Practice – what do the legislative or executive branches think are constitutional (Holmesian 1937-1954)
Legislative or executive
Social beliefs – what does the mass of the electorate thing
This will allow the constitution to change over time – Living or evolving constitution – Holmseian Justices (Rehnquist)
Precedent –  (Natural Law 1789-1872)
Core holdings – most justices don’t like to overrule precedent
General Reasoning – what about dicta and judicial reasoning
This appears to be the interpretation the framers had when they made the constitution
Natural Law Theory of Interpretation or Common Law Interpretation (O’Connor & Kennedy(Holding), Souter(Resoning + Holding))
Prudential Considerations – What would make the most sense (Instrumentalist 1954-1986)
Sound Social Policy – Instrumentalist judges (Ginsburg, Breyer, Stevens)
These justices are more willing to find standing in order to get to the merits and establish the sound social policy
The Federal Judicial Power
1.Judicial Review
a.      Marbury v. Madison (2) Original judicial review case
b.      Established judicial review over all FEDERAL executive and legislative actions
c.       Text:
i.         Article III § 2 – O.J. Ambassadors, other public ministers or consuls, or state as a party
1.      Only argument is that Madison is a public minister – this is dangerous
2.      Appellate Jurisdiction in all other cases
ii.       § 13 of Judiciary Act
1.      Exclusive Supreme Court Jurisdiction
a.       State v. State case
b.       Against an ambassador/public minister (Law of nations = international law)
i.         This category is not about domestic matters, but about foreign ambassadors serving in the U.S. and their domestic servants
ii.       The U.S. wanted to insure against a district court judge hearing a case that involves gov immunity

he judiciary should follow the constitution as they see fit
Judicial Review of State Court Decisions
1.Came along in two cases:
a.      Martin v. Hunter’s Lessee – property argument – Federal review established to:
i.         Structure led to federal power because the S.C. needed to review something if Congress didn’t establish lower federal courts
ii.       State prejudices would lead to obstruction of the regular administration of justice
iii.      Ensure uniformity among federal law – the U.S. Constitution should mean the same thing among all the states and therefore the SupCt must be the final word CONTEXT – federalist theories
b.      Cohens v. Virginia – criminal case about lottery tickets – Fed Review affirmed
2.Limits on the federal judicial power (3)
a.      Interpretive Limits
i.         Two views on interpretive limits of judicial review
1.      Originalism – those who believe that unelected judges can only protect constitutional rights only if they are clearly stated in the text or intended by the framers
a.       If the Constitution is silent, it is for the legislature, unconstrained by the courts to decide law
b.       These are the Formalists
Non originalists – those who believe the Constitution should evolve by interpretation – non-static Constitution