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

Introductory Notes
A.     Sources of Interpretation
CREATION OF CONSTITUTION-dead/static constitution
a.       Text
–Present sense of the words of the provision
–Starting Point
–Is there relevant text in the Const. for the case? Sometimes no.
                                                1.      Literal Meaning: ordinary, dictionary meaning (Scalia, Thomas)
2.   Purpose: what did the Framers intend?  What was the problem the framers were worried about?(o’connor, kennedy, Souter)
b.      Context
                                                1.      Related Provisions: what other provisions are there, related provisions may give a sense of what the doctrine is held to mean. Some judges want to read the Const. as a whole to keep it consistent. Some judges read a passage individually without regard to consistency.
                                                2.      Federalism: how much power does the fed have? State?
                                                3.      Separation of Powers: keeping power balanced
c.       History
–Attempt to discover the authorial intentions behind any constitutional provision
–Looking at other documents of the time, like the Federalist Papers, which were used to convince voters to ratify the Const.
— what do historical sources suggest the constitution was intended to mean. i.e. memoirs, federalist papers
                                                1.      Specific: papers right on point
                                                2.      General: general approach of framers as described from other documents of the time
-Formalists(Scalia would stop here)
POST CONSTITUTION-living or evolving constitution
d.      Practice
                                                1.      Later legislative or Executive Practice: how Congress acted when making legislation. Also, if the president signs it. So the Congress and president presumed it to be constitutional. Judges pay respect to the views of Congress and president. The president has leeway in how much power they have. Congress will usually agree or disagree. Judicial branch will determine if president overstepped constitutional boundaries. Look at what did congress or president interpret. Though S.C. is authoritative interpreter of const., there is respect given to other branches’ interpretations.
                                                2.      social practice-what do people feel should be the law.(Scalia, Rehnquist, Thomas do not use social practice)
e.       Precedent- court cases interpreting the constitution.
                                                1.      Core Holding: specific decision on specific issue but nothing else; not paying attention to dicta
                                                2.      General Reasoning: general understanding of the whole opinion.
–When should precedence be overruled? Different judges have different opinions.
f.        Policy: most controversial. Judges interpreting based on their own views of what the Const. should be. Some think this is bad and is “judicial activism.” Some think policy can break the tie between text & context vs. practice & precedence.
                                                1.      In light of other five sources-look at other policies behind them.

y-Rehnquist). Predominant theory is to respect practice as well as text, context, and history
                                                1.      appointed by Republicans: deference to states
                                                2.      appointed by Democrats:  deference to fed
d.      Instrumentalist: All of it should be considered to help it evolve and be a more just document. Law is an instrument to achieve social justice. Law is an instrument to influence society. (Today- Stevens, Ginsberg, Breyer.)  Instrumentalist will generally support the state’s rights. However, there are both conservative and liberal instrumentalists and this effects the issues they support.
Chapter 1: The Federal Judicial Power
A.     Judicial power comes from Art III §1 “Judicial power of the United States shall be vested in one Supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish.”
B.     Scope of Judicial Power: Art III §2
a.       Cases arising under the Constitution
b.      Cases affecting ambassadors, public minister and consuls
c.       Cases affecting admiralty and maritime jurisdiction
d.      Cases with US as a party
e.       Cases between 2+ states
f.        Cases between state and citizen of another state
Cases between citizens of different states