Constitutional Law II Outline

CONSTITUIONAL LAW II- JOEL GOLDSTEIN (FALL 2014)

INTERPRETTING CON LAW

v Current Supreme Court Justices

· Appointed under article II “by and with the advice and consent of the Senate”

· Elena Kagan- Obama

o Expected centrist, progressive

· Sonia Sotomayor- Obama

o Liberal, progressive

· Samuel Alito- Bush (W)

o Consistently conservative

· John G. Roberts- Bush (W) chief justice

o Consistently conservative

· Stephen G. Breyer- Clinton

o Liberal

· Ruth Bader Ginsburg – Bush (H)

o Very liberal

· Clarence Thomas – Bush (H)

o Extremely conservative

· Anthony Kennedy – Reagan

o Usually the swing vote, more towards conservative

· Antonin Scalia – Reagan

o Extremely conservative

Modes of Constitutional Interpretation

Textual argument:

· “The Constitution means X, because that’s what it says ”

· Ex: D.C. v. Hellerà Scalia uses a very textualist argument (mixed with some original intent)

o the words of the constitution mean today what they meant when the constitution was written

o The 2nd amendment means the same thing today that it meant to someone in 1791

Original Intent of the Framers/originalist argument:

· “The Constitution means X because the Framers intended that the Constitution mean X.”

o If you look at writings, words, or actions of those who wrote the Constitution, it is clear that they meant X.

· Ex: Slaughter-House Cases (Civil War Amendments intended to protect only on racial grounds).

· Ex: Bowers v. Hardwick (majority considered original intent in regards to constitutional protection of sodomy).

· Ex: Dred Scott v. Sandford (Framers did not intend to confer constitutional rights upon blacks).

· Problems: how do we figure out what a group meant when those who wrote it didn’t disclose their reasons? We face a lot of issues today they couldn’t even imagine

· Justices who like this: Thomas, Scalia

Structural argument:

· “The Constitution means X because, if you look at the entire Constitution, and the values (federalism, separation of powers, etc.) implicit in its structure, you can see that it values X.”

o not based on particular words, but looking at the implicit design of the constitution

o used in federalism, separation of powers, democratic accountability, etc. –ideas which animate the constitution even though it never uses those particular phrases

· Ex: Griswald v. Connecticut (constitutional right of marital privacy).

Ongoing history argument:

· “The Constitution means X because, for a long period of time, we have been acting as though it means X.”

o adverse possession theory of constitutional interpretation

o doesn’t rely on action by the courts but on actions of governmental institutions

· Ex: The Constitution forbids segregation in schools because of Brown v. Board of Education.

· Ex: Bowers v. Hardwick (constitution has never been interpreted to protect right to engage in sodomy).

· Ex: Washington v. Glucksberg (principle that assisted suicide is criminal is rooted in over 700 years of Anglo-American legal tradition).

Doctrine or judicial precedent argument:

· “The Constitution means X because there is an earlier case in which the Court said the Constitution means X.”

· Ex: Casey v. Planned Parenthood (citing Roe as controlling precedent that should not be overturned).

Pragmatic or consequentialist argument:

· “The Constitution means X because the consequences of interpreting it to mean X are better than the consequences of interpreting it to mean Y.”

· Ex: Roe v. Wade (deleterious consequences of denying women right to abortion).

· Critics say it sounds like policy judgments that legislators, not judges, should make.

Moral or ethical argument:

· “The Constitution means X because it would be wrong or immoral to find that it means Y.”

o sometimes explicit or sometimes implicit

· Ex: Brown v. Board of Education (profound feeling of inferiority that arises as result of school segregation is unjust).

· Ex: Kennedy’s argument in Lawrence v. Texas that it was inappropriate for state to forbid same-sex sodomy because such action only affected those individuals.

Comparative argument:

· “The Constitution means X because other countries have interpreted similar language in their constitutions to mean X”

· Ex: Washington v. Glucksberg (Court notes that many other countries have outlawed physician-assisted suicide).

· Scalia really, really hates comparative arguments.

“Living Constitution” Approach

· combines precedent, moral, ethical and pragmatic

· term used to describe the Constitution’s ability to change to meet the needs of each generation without major changes.

· It is based on the notion that Constitution of the United States has relevant meaning beyond the original text and is an evolving and dynamic document that changes over time. Therefore the views of contemporaneous society should be taken into account when interpreting key constitutional phrases.

· Example: Warren takes a very LC approach in Brown opinion

o We cannot turn back the clock, have to look at WHAT THESE WORDS MEAN NOW

o Must consider public education in the light of its full development and its present place in American life through out the Nat