CON LAW I
PROFESSOR GOLDSTEIN
SPRING 2017
The US Constitution
Methods of Argument
Textual: The Constitution means X because it says X within the text
Ex: Constitution explicitly says you must be 35 to be president, so someone who is 34 is not eligible
Shortcomings:
Ambiguityàthe text does not always explicitly address the issue
Constitutional conflictàwords within the Constitution conflict with each other
Originalism/Original Intent: The Constitution means X because the people who wrote it/the words they used, mean X
What the Constitution meant 200 years ago is what it means today
Shortcomings:
The men who wrote it were all white menàthink about women and Equal Protection
Hard to think about some of the things we have today in the lens of someone 200 years ago
Structural: The Constitution means X because if we look at the structure/design of the Constitution, X runs through it
Focus on the division of the federal government into three branches/separation of powers
Focus on divisions between states and federal government—federalism
Look to the Constitution as a whole
Precedent/Doctrinal: The Constitution means X because the Supreme Court decided that it means X
Shortcomings:
What if it’s overturned?
Conflicts with original intent
How do you know when to take a new course?
Ongoing History: The Constitution means X because if we look at the way other political actors (Congress, president, etc) behave it is in a manner that shows it means X
Shortcomings:
Women and African Americans have been treated as second class citizens in the past, you would not say just because there is history behind them, it is constitutional
Pragmatic/Consequential: The Constitution means X because the interpretation that will lead to the best consequences is X
Ethical/Moral: The Constitution means X because the most ethical/moral meaning of a word is X
ORIGINALISTS/INTERPRETEVISTS v. LIVING CONSTITUTION/NON-INTERPRETEVISTS
LIVING CONSTITUTION
Emphasize textual,
original intent, and structural arguments
Emphasize precedent, ongoing history, or pragmatic/consequential arguments
*Constitution is a living document; its meaning changes to accommodate different times and experiences
FORMALISM VS. FUNCTIONALISM
FUNCTIONALISM
-Use textual and logical arguments
-Bright Line Rules
-Governmental power is in boxes
-Scalia
-Look at what is actually happening
-Balancing tests
-Powers can overlap sometimes
CONSTITUTIONAL ARGUMENTS
Type
Basis
Example
Problems/Issues
TEXTUAL
Starting point for constitutional interpretation – SCOTUS pulls out text from the document to support their ruling
The Constitution means X because it says X within the text
– Constitution is silent
– Different conclusions about meaning – not always clear
-Conflicts within Constitution
FRAMERS’ INTENT (Originalism)
Focuses on the intent of the framers – their understandings is what became law
The Constitution means X because the people who wrote it/the words they used, mean X
– Can we really figure out the intent of the framers?
– All white men
– Even if we figure out original intent, how relevant is it today
STRUCTURAL
Obtain meaning through inferences from the structure and relationships of the Constitution
The Constitution means X because if we look at the structure/design of the Constitution, X runs through it
– More suitable for relationship among government institutions than protecting the public’s rights
-Federalism, checks and balances, separation of powers
Judicial Doctrine/
PRECEDENTIAL
Look to precedential progression of court cases as influenced by stare decisis
The Constitution means X because the Supreme Court decided that it means X
– Overturned cases
– Conflicts with original intent
– How do you know when to take a new course?
ONGOING HISTORY
– Look back to set the meaning of the constitution, see what has been practiced in the past without challenge
– Flexible, forward looking, and adaptable
The Constitution means X because if we look at the way other political actors (Congress, president, etc) behave it is in a manner that shows it means X
– Used inconsistently
– Could manipulate Constitution meaning/intent of the framers
PRAGMATIC
Interpret the Constitution to result in the best outcome in the case
The Constitution means X because the interpretation that will lead to the best consequences is X
– Could involve the court in speculation of political outcomes of decisions
– Could lead to the court dodging deciding a case to avoid institutional harm
ETHICAL/
MORAL
Value and moral-based arguments about Constitutional interpretation
The Constitution means X because the most ethical/moral meaning of a word is X
– Different people reach different results
– Contestable
Judicial Review: Establishment and Operation
Establishment: Marbury v. Madison
Opinion by John Marshall
Facts: Marbury was named Justice of the Peace by outgoing President John Adams; Jefferson comes in and tells Madison not to deliver the order; Marbury sues because he wants his appointment enforced via a writ of mandamus from SCOTUS
Marbury has a right to the commission
Yes: the appointment is not removable at the will of the presidentàit is vested and protected by the laws of the country
Marbury has a remedy
Rule of Law: where there is a legal right, there has to be a legal remedy
Our rights do not mean anything if we have no way to enforce them
Criteria for determining jurisdiction over executive
Where an officer has a specific duty and violates that duty, which results in an infringement of an individual’s rights, the officer can be taken into court
BUT where the executive is simply exercising some political or discretionary function, they cannot be hauled into court à still accountable to the people at the ballot box
Adams’ failure to deliver the commission is a violation of a duty, so Marbury can bring him to court
Marbury is not entitled to the remedy because SCOTUS does not have jurisdiction
Section 13 of the Judiciary Act of 1789 violates Article III of the Constitution
The Act expounded SCOTUS’ original jurisdiction
SCOTUS only has original jurisdiction for two type
ongress did not have to establish inferior federal courts and could not hear state decisions, it would essentially have nothing to do on the appellate level which would contradict its appellate purpose àso it can be deduced that it can hear state court cases
Holding: State courts are subject to judicial review
Similarities to Marbury
Both review statute (Judiciary Act of 1789)
Both explore the bounds of SCOTUS’ jurisdiction pursuant to statute
Reviewing the acts of another government body (Congress)
Court Organization
Supreme Court
Article III 1: The judicial power of the US shall be vested in one Supreme Court, and such other inferior courts as the Congress may from time to time ordain and establish
Supreme Court is constitutionally required
Number of justices is not fixed and has varied over time
SCOTUS Justices: Roberts, Scalia, Kennedy, Thomas, Ginsburg, Breyer, Alito, Sotomayor, Kagan
Jurisdiction
Original Jurisdiction
Article III §2: The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the US, and treaties made, or which shall be made under their authority:
Marbury is a ceiling to Supreme Court’s original jurisdiction: only cases affecting ambassadors, public ministers, and consuls or those where a state is a party
Congress has assumed Supreme Court’s original jurisdiction is not exclusive à there can be concurrent jurisdiction with SCOTUS and a lower federal court
Appellate Jurisdiction
Article III §2 Clause 2: In all other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as Congress shall make”
Ex Parte McCardle (McCardle was arrested during Reconstruction and petitions for a writ of habeas corpus under the 1867 Habeas Corpus Act; Congress than passes an Act—after SCOTUS has agreed to hear this case—which eliminates SCOTUS’ appellate jurisdiction to hear habeas corpus cases)
Opinion by Justice Chase
SCOTUS’ appellate jurisdiction is conferred by Article III §2 Clause 2 (EXCEPTIONS CLAUSE): “with such exceptions and under such regulations as Congress shall make”
Textual argument: “exceptions” implies that it can limited, but not that it can be entirely erased and “regulations” implies that it can just regulate something, not take it away
If Congress stripped away too much of SCOTUS’ jurisdiction it would effectively take away so much power that it would no longer be supremeàviolates the Constitution that there shall be “one supreme court”
