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Political & Civil Rights
Temple University School of Law
Carter, William M. "Chip"

Political & Civil Rights- Carter Spring 2009
Methods of Constitutional Interpretation
1)       Interpretive Limits (internal limits)
a)       Originalist:
i)        Specific intent-textualism (four corners of the document and what the language means)
ii)      General intent originalism: idea is to get the original intent behind the meaning. The difference is where you look to get that intent. Look beyond the text to determine what the framers would’ve intended when the words were written. Willing to look to outside sources.
(1)     We look to understand not just what the framers subjectively had in mind; we look to what there general intent was. What was their general aim? Extend to cover modern principles that were not in existence when the constitution was written.
iii)    Benefits: Predictability, intent doesn’t change. Stability. Constrains judges. 
iv)     Problems: Trouble in interpreting absurdities (i.e. refers to President as “he”)
(1)     In responding to arguments that there need to be changes, they would say Congress should pass statutes.
b)       Non-originalist:
i)        Living constitution: Document was intended to evolve. (what the framers intended)
ii)      Constitution evolves to mean what we need it to mean. Not necessarily what the framers intended.
iii)    Benefits: Can change to meet unforeseen problems. May be necessary because legislative process moves too slowly in giving minority rights.
iv)     Problems: If we deviate, how far can you deviate and still have some constitutional legitimacy. (judges aren’t subject to democratic process)
2)       The Second Amendment as an Example
a)       Second Amendment= “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
i)        1st Interpretation: Second Amendment safeguards a right of individuals to keep and own firearms.
ii)      2nd Interpretation: Second Amendment means only that Congress cannot regulate firearms in a manner that keeps state governments from protecting themselves. This view doesn’t read Second Amendment as creating a constitutional right for individuals to own guns.
iii)    What role, if any, should the framers’ intent play in interpreting 2A?
(1)     What weight should prior Supreme Court precedent have?
(2)     What weight should be given to tradition in determining the meaning of 2A
3)       District of Columbia v. Heller: Second Amendment guns right case. Demonstrates difference in interpretive style.
a)       Scalia: isn’t doing strict textualism (looks to other constitutions, etc.) When he does statutes, he does do strict textualism. Closer to general intent for his constitutional interpretation.
i)        In certain parts he acknowledges that society has changed and constitution has to change at least somewhat. (i.e. self-defense)(we wouldn’t have tanks in our homes because society has evolved).
ii)      Prefatory clause: Purpose of the amendment. He says the right starts at the operative clause. He says it doesn’t restrict or limit the right. Argues it’s A purpose, not THEpurpose of the right. Serves a clarifying purpose.
(1)     Starts with Operative Clause:
(a)     “Right of people” Analyzes what kind of right is intended. Looks to other amendments and concludes that it gives an individual right based on “Right of the people.” Right of the people means all the people, not just a subset, like militia.
(b)     “Keep and bear Arms”: Looks to definition at time it was written, not what it means today or an individual framer might have thought it meant.
(i)      Why isn’t it limited to weapons in effect at the relevant time?
(ii)    Scalia: We don’t interpret constitutional rights that way. This is consistent with General Intent theory. What were framers trying to achieve?
iii)    Meaning of the operative clause: Unless prefatory clause changes something, operative clause guarantees individual right to possess and carry weapons in case of confrontation.
(1)     How can well-regulated Militia idea be harmonized? Purpose of prefatory clause is to state we would not allow central government to disarm the states. That is not the limit of the right.
(2)     Argument is that it was intended to limit right to weapons related to well regulated militia. Scalia rejects. Some provisions deal with navies, some with militias. 2A is intended to codify a pre-existing right (“shall not infringe”). Preserves the militia, doesn’t create it.
iv)     You have to have individual right to possess firearms, because militia required you to show up with a weapon.
(1)     Militia wouldn’t work if Central Government could disarm them.
(2)     Security of a free state: Means security of a free polity. (all the people unconnected with state military). Scalia argument: it was a term of art.
(3)     Miller case: Dissent says 2A only protects weapons related to military service.
(4)     Majority disagrees: Says Miller stands only for the proposition that 2A, whatever its nature, extends only to certain types of weapons.
(a)     Sawed off shotgun was not the type of weapon protected because it would never serve a legal purpose.
(b)     Disagree about whether it was important of the purpose of having the weapon, or what kind of weapon they had.
b)       Stevensdissent: Also originalism. Looks to what the framers intended.
i)        2A protected the states from tyrannical centralized government.
ii)      No reason to ignore the stated purpose about militia.
iii)    If the purpose is to protect States from being disarmed, then there is no individual right to bear arms unconnected from serving in an armed militia.
iv)     Even if Miller did state an individual right, decades of judges have interpreted it as a collective right, and the majority ignores the weight and force of that authority.
(1)     On going debate about the stare decisis.
v)       Beginning doesn’t just announce A purpose, it announces THE purpose
(1)     The right of the people: should be read as a collective right. (Right to maintain a state militia). 
(2)     Dissent has a similar problem to majority in its textual analysis
(a)     Constitution doesn’t refer to right of the people anywhere else in a way that means collective right.
(3)     Accuses majority of judicial activism
c)       Stevens style argument by Carter: if 2A is intended to protect states, why can’t a state (i.e. D.C.) decide to disarm itself?
i)        Scalia: because State can’t make that decision. It’s only A purpose. Can’t strip people of their individual right just because D.C. decides they’re not worried about tyrannical centralized government.
Inherent Presidential Power/ Presidential Power and the “War on Terrorism”
–          Article II of the Constitution begins, “The executive Power shall be vested in a President of the U.S. Because Article II does not limit the President to powers herein granted.
o    Argument: that President has authority not specifically delineated in the Constitution.
o    Counter: President has no powers that are not enumerated in Article II and, such unenumerated authority would be inconsistent with a Constitution creating a government of limited authority.
1)       Boumediene v. Bush: Federal statute denied Federal courts jurisdiction to hear habeas claims from Guantanamo Bay Detainees. Number of congressional statutes giving express authorization for President to do many of these things.
a)       3 Issues, 2 discussed:
i)        1. Does Constitutional privilege of HC extend to non-americans held outside of US borders?
ii)      2. If common-law writ would run to these people, does the law provide an adequate substitute? If it does, won’t treat this as a suspension of the writ.
(1)     3. If it is a suspension, are the suspension clause requirements met? NO.
(2)     Side issue: Rather than suspension, the statute stripped the courts of jurisdiction
b)       Holding: Constitution runs beyond where there is formal sovereignty. In order to deny H.C., have to act in accordance with Suspension clause. 
i)        At least three factors are relevant in determining the reach of the Suspension Clause:
(1)     The citizenship and status of the detainee and the adequacy of the process through which that status determination was made;
(2)     The nature of the sites where apprehension and then detention took place; and
(3)     The practical obstacles inherent in resolving the prisoner’s entitlement to the writ. 
ii)      Government Argument
(1)     Location of detention: Habeas Corpus only applied to territories where there was actual sovereignty.
(2)     Nature of the person: Habeas Corpus, according to history, doesn’t apply to non-citizens. Constitution protection is a sliding scale. 
(3)     Your constitutional protections increase depending on who you are, and where you are.
iii)    Petitioner Argument
(1)     History isn’t very clear. Argue that Constitution runs with the flag. Constitution follows the detainer.
(2)     Degree of objective control is what is important: US has total control over Guantanamo Bay. Therefore cannot categorically say that Constitution doesn’t run there.
(a)     HYPO: what if prisoners are moved to an area where US doesn’t have total objective control, which results in worse treatment to the prisoners.
iv)     Use of the Case Eisenstradt (WWII case):
(1)     Location: abroad
(2)     Status: (enemy) Non-citizens
(a)     SCOTUS held they could not invoke Habeas Corpus.
(i)      Control: US didn’t have control over the area.
(ii)    Status: they didn’t dispute their status as enemy combatants. Petitioners aren’t similarly situated.
(iii) Procedural safeguards: they were given a court Marshall (a full-blown trial).
(3)     Practical Obstacles:
(a)     Government: Someone has to respond to HC. There has to be extensive proceedings which require either soldiers or someone high up in the military. All of this distracts from important war efforts.
(b)     Petitioner: Cuba is far removed from war, no risk of distraction because of habeas corpus.
v)       Should Courts be making a judgment about whether military can afford to do this? Court may be exercising judgment on something it is not competent to do-Scalia.
c)       Underlying Issue: Executive branch has asserted that its constitutional authority is superior to that of the judiciary. We have 3 branches, all of which can engage in constitutional interpretation. If one branch conflicts with another, what should the outcome be?
d)       What about the guy captured tomorrow: Ct. says he can’t file HC. Out of deference to other branches, shouldn’t grant HC in all cases. Some reasonable time must be allowed
e)       What are some of the reasons that Court believes there wasn’t sufficient procedural substitute?
i)        Petitioners didn’t have counsel. They had representatives.
ii)      No ability, on appeal, to review factual errors or ability to supplement the record.
(1)     Appellate court couldn’t supplement the record. Can’t review any evidence that wasn’t presented at trial.
(2)     H.C. as collateral attack, presents facts that are not in the record.
(a)     Statute also doesn’t say that Court can order detainees release. HC requires that.
(3)     Limitation on evidence that can be presented, etc.
(4)     In order to avoid immediate HC review, detaining should be reasonable
(5)     Detainees need to be held under lawful conditions of confinement and treated properly
The Structure of the Constitution’s Protection of Civil Rights and Civil Liberties
The State Action Doctrine (Generally, the restrictions of the Constitution only apply to State action)
“The Civil Rights cases”
1)       US v. Stanley: (1883): State laws in south tried to replicate the conditions prior to 13th amendment. Inn keepers, etc. would discriminate, and state would not protect. 
a)       Congress Passes Civil Rights Act: Protects individual rights against private discrimination. (related to public accommodations).
i)        We aren’t dealing with the Constitution in this case.
(1)     13,14,15 Amendments say Congress has right to enforce by appropriate legislation.
(2)     Issue: What is appropriate legislation?
(a)     Some provisions can reach private conduct. 14A does not.
b)       Was civil rights act within congress’ power to enforce 14A?
i)        No. Starts with textual approach- “No state shall”
(1)     “State” refers to state action. Doesn’t say “No one Shall”
(2)     Court talks about why it would in inadvisable to apply it to private conduct.
(3)     Slippery slope argument. If you can regulate private conduct, then where does such power to regulate end. 
(a)     Broader concern: Federalism. Some things should be left to the states. Most issues of individual rights should be left to the states. 
c)       Argument that 13A gave them authority.  Prohibit slavery, but also current discriminatory effects traceable to slavery. Doesn’t have state action requirement.
i)        Only reaches private conduct in political way- Not social rights (things like integration).
d)       Harlan Dissent: subverting the purpose of the

sproportionate relationship between race and defendants sentenced to death. 
a)       Disparate impact itself isn’t enough for equal protection violation.
b)       Equal protection claim requires proof of intentional discrimination.
i)        A significant enough disparate impact can be used to raise an inference of intentional discrimination.
ii)      Study reveals 1 of 2 things. In my case, report shows I was sentenced to death based on race. Or systemic discrimination, and therefore fair to presume it trickled down to me.
(1)     Individual challenge:
(a)     D offers no evidence of discriminatory intent towards him.
(i)      He got a jury.
1.       Randomly selected. Don’t know why jury did what they did. They are highly individualized.
(ii)    Prosecutor
1.       Don’t require prosecutor’s to justify their selection unless there is a strong showing of discrimination.
(iii) Legislature
(iv)    Judge
(b)     Court attributes a presumption of validity to these actors.
(2)     Systemic challenge: Any prosecution that takes place under system is infected with discrimination. State either adopted Death penalty knowing the discrimination, or maintained the system knowing the discrimination. Rejected. Has to do with definition of “intent.”
c)     Test: In order to show necessary inference of discriminatory intent, you have to show governmental decision makers acted BECASUSE THEY DESIRED the racial consequences to come about, not merely in spite of them.
i)        Strict scrutiny is not triggered unless you meet threshold of showing government acted because of an anticipated discriminatory effect.
3)       Callins v. Collins: facial challenge to the death penalty. Rejected. 
a)       Scalia: proper place to look is constitution. Constitution expressly permits death penalty in the Fifth Amendment. Can’t read into the 8th amendment a prohibition.
b)       Blackmun: doesn’t disagree just says you can’t make death penalty both FAIR and CONSISTENT. Therefore we can’t have the death penalty.
i)        Case law- Court’s jurisprudence imposes 2 requirements;
(1)     1. Sentencer’s discretion to impose death must be closely confined
(2)     2. But sentences discretion NOT to impose death must be unlimited.
(3)     The more discretion, the more room for unfairness.
c)       Scalia: neither of the two commands appears in the constitution.   
i)        Criticism of Blackmun perspective: If you are going to make a moral argument, you have to weigh both sides of the moral scale. Blackmun isn’t weighing the side of the victim.
d)       Unless right derives from history or text of constitution, Scalia doesn’t believe it is a right.
e)       BlackmunDissent: His problem is not with death penalty in abstract. He has become convinced that it’s just not possible to administer the death penalty in a fair way.
Equal Protection
1)       What is the classification? It can be a class of one; it doesn’t have to be a group. Can be shown in two ways.
a)       Facially: on the face of the statute
b)       Disparate impact:
2)       What level of scrutiny should be applied?
a)       Determining level of scrutiny:
i)        Court has emphasized
(1)     Immutable characteristics- like race, national origin, gender; and the martial status of one’s parents- warrant heightened scrutiny.
(a)     Rationale: unfair to penalize people for something they didn’t choose and cannot change.
(2)     Ability of the group to protect itself through the political process
(a)     Rationale: Law “restricts the political processes” that could ordinarily be used for redress (but compare Romer).
(b)     Law based on prejudice against “discrete and insular” minorities who, because of prejudice and size, can’t work will through democratic means (but compare Cleburne).
(i)      i.e. women were underrepresented in public office and aliens don’t have the ability to vote. Therefore political process couldn’t be trusted to represent their interests.
(3)     History of discrimination against the group:
(4)     Court’s judgment concerning the likelihood that the classification reflects prejudice as opposed to a permissible government purpose.
(a)     Because the classification is so seldom relevant, presume such laws reflect prejudice.
b)       1. Strict Scrutiny: applies to discrimination based on race or national origin.
c)       2. Intermediate: used for discrimination based on gender and for discrimination against non-marital children.
d)       3. Rational: everything else.
3)       Does the government action meet the level of scrutiny?
a)       Court often focuses on the degree to which a law is overinclusive and/or under inclusive.
i)        Underinclusive: if it does not apply to individuals who are similar to those to whom the law applies.
ii)      Overinclusive: if it applies to those who need not be included in order for the government to achieve its purpose.
iii)    Law can be both overinclusive AND underinclusive.
b)       Most laws either over or under inclusive. 
i)        Strict scrutiny: relatively close fit is required
(1)     Strict: Government must have a truly significant reason for discriminating, and it must show that it cannot achieve its objective through any less discriminatory alternative.