Constitutional Law I
Spring 2010
Peters
Methodologies:
I. Textualism- constitutional meaning is determined primarily or exclusively by reference to documentary text
A. Canons of Construction
B. English Language
II. Originalism: “Judges deciding constitutional issues should confine themselves to enforcing norms that are stated or clearly implicit in the written Constitution”
-The Constitution should evolve solely through amendment
-Advantage: gives you a foundation, limits what the Constitution controls
èdetermined primarily by reference to mental state of some person involved in authoring or ratifying documentary intent
a. Original Intent (Intentionalism) – con meaning determined to Framer’s views about particular topic at issue. (ex. Author included evidence after Marbury v. Madison about what people at conventions though about it)
b. Original Meaning/understanding- Idea that Constitutional meaning can be determined not at what the farmers thought about particular issues, but what their understanding of words was (documentary)…especially looks at what the “public” under stood, instead of just the Framer’s (ex. Scalia says that task of constitutional interpretation is to determine what the words of the constitution meant as they were understood at the time of the ratification).
III. Modified Originalism
A. “Courts should go beyond the set of references and enforce norms that cannot bdiscovered within the four corners of the document”
B. Essential that the Constitution does not remain static, so that it can evolve to meet the needs of a society that is advancing technologically and morally
C. Advantage: gives you the ability to apply the Constitution to today’s society
IV. Purposivism: Meaning is identifies by studying the purposes or goals behind the text. What are the purposes behind
(ex. Marshall’s approach in Marbury: the whole point is to bind the people into the Constitution and get this legislature to enforce their opinions)
V. Common-Law Reasoning: Constitutional meaning is determined by applying prior judicial precedents to the topic at issue (Look at earlier judicial decisions)
àPRECEDENT.
ex. Scalia goes through case law on issue of Habeas Corpus in Boudimiene to try to get an
VI. Original Meaning
A. Constitution is limited to its text and the practices at the time of writing
B. Don’t look at intent
C. Advantage: It’s up to the legislature to do their job in amending the Constitution
D. Disadvantage: Difficult to amend; the Constitution falls way behind the times
VII. Tradition
A. Take into account today’s traditions
B. Disadvantage: social norms are different in the United States based on where you live
VIII. Process-based theory
A. For procedural issues the court doesn’t have to be originalist
B. For substantive issues the court should restrain
IX. Aspirationalism
A. The court identifies and defines the values that are so important that they should be protected from the majority
B. Disadvantage: the court has tremendous power
Sometime called “Strict Construction”
Analyzing an Equal Protection Issue
First: Identify the classification being made (What group is being discriminated against )
Ex: city ordinance states that no one may own pigeons as pets
Distinction between pet owners who own pigeons and pet owners who own any other animal
Pigeon owners are being discriminated against
Second: Determine what type of discrimination is involved
Does the law discriminate on any basis that would trigger heightened scrutiny?
In the above example- are pigeon owners a suspect or quasi suspect classification? – no
Third: Apply the appropriate standard of review (strict, intermediate, or rational review)
In the above example- city could claim has a legitimate interest in safety and pigeons carry diseases
-Here can see a rational relation between the stated interest of safety and denying person an ability to own a pigeon as a pet (if pigeons are dangerous due to diseases then reasonable for city to prohibit people from owning them as pets where they could infect pet owners and others)
-Rational review is generally very deferential and thus even though one could argue that other animals (such as raccoons) are not prohibited from being pets and they carry diseases – the law would probably be upheld because only need a rational or reasonable relation between the interest and the regulation.
Constitution.
A. Declaration of Independence, (No legal authority, but foreshadowed what protections would be in the Constitution and Bill of Rights)
o After the Revolutionary War ended in 1781, the 13 colonies ratified the Articles of Confederation
B. Articles of Confederation: (First constitution of US)…Created a weak national government and had a strong commitment that state governments retain sovereignty
i. No federal judiciary and no executive
ii. Congress had no power to tax and no authority to regulate commerce among states
iii. Problems
b. States adopted laws that discriminated against goods and services from other states
c. Since no national executive or judicial authority there was no way to ensure states would adhere to laws adopted by Congress
C. May 25 to Sept. 17, 1787 the Constitutional Convention met in Philadelphia
1. Convention agreed to get rid of the Articles
2. Sept. 17, 1787, the members of the Convention approved the document, signed it, and returned home to fight for its ratification
3. Debate among states over whether to ratify the Constitution
D. Federalist Papers were 85 essays written by Alexander Hamilton, James Madison and John Jay to persuade NY Convention to ratify the Constitution
-Often cited by Supreme Court to show framers’ intent
E. By June 1788 10 states had ratified the Constitution
Power of Judicial Review- Power to strike down laws of Congress that the Court concludes are unconstitutional
Marbury v. Madison. 1803
e Court original jurisdiction to issue writs of mandamus is unconstitutional because Congress cannot allow original jurisdiction beyond situations listed in Constitution
(marbury argues that there is no mention at all, so as long as Congress is not violating the minimum requirement
This case is very important because it established that
èThe Supreme Court has the Power to review, interpret and possibly strike down congressional and State laws that conflict with the constitution.
The Constitution was silent on whether federal courts have this authority- therefore the Court ‘gave’ themselves this power
Here, the Supreme Court does not have the power to issue a writ of mandamus in an exercise of original jurisdiction
Question? Who has the power to interpret the Constitution?
èOne possibility is deference to
-Congress or
President/
States?
èAnother possibility is a Clear Error Standard (DEFER TO Congress’ standard)
èMarshall’s Arguments:
1. Meaning of “Judicial Power”- (Article 3)
a. Purpose
b. Original intent- framers all have same intent
(at least a number of the framers supported Judicial Review)
Holding: Congress does not have the right to alter the Court’s original jurisdiction.
Broad Conclusions:
1. Court has some kind of binding power or authority to interpret the Constitution (we can read it the way we want)
2. Constitution itself is binding (if it isn’t, no one cares what the interpretation is)
Limits on the Judicial Power
Self Imposed limits of the Court:
Standing- Whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues
I. Standing does not address the merits of the case
II. If one party does not have standing, another person may (idea of wrong person not wrong claim)
III. Standing is always an issue- a party must have standing in order for the court to hear his/her claim
Why should a party be required to have standing?
i. Separation of powers- limits judicial review
ii. Requirement of standing limits the matters the court will address by limiting the parties available to bring such cases
iii. Prevents excess lawsuits by people who only really care about the issue, but do not have a particularized and personal injury
iv. Fairness (Restricts parties to only raising their rights and concerns)
Standing doctrine embraces several judicial self-imposed limits on the exercise of federal
