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Constitutional Law I
University of California, Hastings School of Law
Paul, Joel Richard

Constitutional Law
Spring 2010
Professor Paul, UC Hastings

Methods of Interpretation
1. D.C. v. Heller
a. (2008) Issue = “whether a DC prohibition on the possession of usable handguns in the home violates the 2nd Amendment” (YES – cannot prohibit bearing private arms)
b. History: previously, scholars thought 2nd Amendment referred to not prohibiting militias
i. Militias were considered more democratic than a standing army
ii. 2nd A = adopted to address concerns of federal power over states – it is addressed by the states to the federal government . . . DC is a federal enclave
i. Framing changes the argument
ii. Scalia:
1. Engages personal liberty vs. what state is ‘allowed’ to do . . . shifts burden! Other side now has to argue against liberty
2. Positive vs. negative rights – protecting existing vs. granting vs. never was and not giving
iii. Stevens (p22):
1. “only makes sense to talk about a right in the context of how it is regulated”
i. Scalia:
1. Begins with operative clause, to first convince you that you have a right – focuses our attention/the argument on something he can win
2. Coherance — looks at how “people” is used in other places in the Constitution (‘individuals’)
3. ‘keep and bear arms’ – separates the term! (‘obvious plain meaning individually’)
4. Then goes to prefatory clause. Uses historical context of framing/history of ratification/state constitutions existing at that time – says that militias+common law right of self defense existed at time of framing à Constitution is protecting this àall society has right to protect self from any threat à individuals have a right to bear arms
5. Uses subsequent history – how was interpreted immediately afterward
6. Court Precedent – US v. Miller (‘if that case had been about arms in general, why bother discussing different types once have determined that person wasn’t in militia?’)
ii. Stevens:
1. Begins with prefatory clause
a. Textual analysis – ‘Militia is capitalized b/c it refers to a specific institution’
2. Uses historical context! ‘keep and bear arms’ = ‘this is a term of art/military term from that historical period’
2. Types of Analysis
i. NOTE: obviously, can use these for either side in any given situation + no case can be decided on any one of these arguments alone
i. Word interpretation, etc
i. Historical intent, legislative history
ii. Uniquely American – because writers were also founders of a nation
iii. Justified?
1. Whose intent matters? Which of the writers?
2. Intent changes over time
3. How to figure out intent?
a. Political propaganda? letter?
4. Groups do not have just one intent
5. Writers had no actual authority to write the Constitution – should we be analyzing state conventions? How?? Or voters’? How???
6. History is always ambiguous
a. Few people had arms in their homes . . . so how was this a right?
b. Proposers meant 2nd A in the context of a standing army
7. Framers purposely didn’t keep a record of the Convention – did they want intent to be used???
i. Also ambigious
ii. Ex: Adams thought individuals with arms threatened liberty, so he left it out of the MA Constitution (ratified after US) . . . no one challenged that at the time
i. Stare decisis is also unique to USA
ii. Constrains court
iii. People have a right to know what to expect from the court
i. Relationship between the federal government and the states
i. General principles that inform us about the nature of government
ii. NOT in Constitution, but it informs our reading of it
iii. Ex: it protects our liberty; democracy; freedom of ideas; no one is above the law’ etc
i. NOT the narrower intentions of the Constitution – but its broader purposes
ii. Ex: check on the power of the federal government à make sure we don’t have a standing army OR make sure individual rights aren’t encroached on by the government
i. Cost-benefit analysis/interest-balancing
ii. Breyer does this when analyzes how many people guns kill every year – Scalia scoffs at it in this case

Madisonian Republicanism/Origins of Our Constitution
1) History
a. 1776 – Continental Congress, Articles of Confederation
b. In between
i. 13 states act cooperatively, but Articles are loose and states are very independent – Articles only serve to coordinate things, and only if states wish to
ii. Economy very disorganized
iii. State cultures VERY different
iv. Revolutionary War cost was staggering – to pay, states either printed money (inflation) or raised taxes
v. 1786
1. RI
a. Printed a lot of money + passed law that everyone in RI must accept it or be fined w/o a trial
b. Trevitt v. Weeden
i. Weeden refuses to accept currency; argues that fine w/o jury trial violates Charter (Note: charter didn’t say this, let alone that court can invalidate entire statute)
ii. Court agrees; Legislature mad and fires all judges
iii. Other states = uproar
iv. THIS is what Madison meant with ‘Factions’/’Paper Money Factions’ – and everyone at the time would have been aware
2. MA
a. Raised taxes
b. Farmers forced into foreclosure in huge numbers à Shay’s Rebellion/The Regulators stopped courthouse and seized Boston/held legislators hostage
c. Other states were scared
c. 1789 – Constitution (result of 1786 events)
i. States were upset+scared, wanted solutions and security
d. Subsequent History Leading to Marbury v. Madison
i. 1st 8 years smooth
ii. Then elections more contentious
iii. Jefferson wins a close election à Federalists panic à Judiciary Act of 1800 establishes new courts and appoints lots of judges, but some commissions undelivered because so last minute
iv. Judiciary and D.C
1. DC is a hole and Court is in a basement – no one will take the jobs, jobs are no big deal jobs
2. Marshall (ambitious) takes it days before Adams leaves
3. Jefferson and Marshall dislike each other + Jefferson wants to get rid of Federalist Judges one by one
e. Mar

Justiciable vs. political/discretionary questions
iv. The Constitution is a law (as opposed to Declaration of Independence, which is only a vision)
v. Congress cannot expand the Court’s original jx
1. This concerns subject-matter jx
d. Types of Arguments Used
i. Note: normally a court would assess jx first – Marshall waits until the end because wants to point out that Jefferson acted illegally, but end with saying that Court can’t do anything
ii. Marshall
1. Purposive
a. The Constitution is higher law – trumps statutes
2. Structural
a. Concerns what courts do – courts decide what law is, especially if it conflicts with the Constitution
3. Textual
a. Article VI – ‘the Constitution is the supreme law of the land’
b. (text is actually ambiguous, but combined with purposive, this works)
4. Contextual
a. Asks what framers intended (awkward b/c Madison wrote the thing!)
b. Does not consult Federalist papers b/c those were propaganda – Founders didn’t look to record, b/c it was their generation – they looked more to spirit and intent
c. Marshall infers intent from structure and ethos of government
iii. Other side – against judicial review
1. Textual
a. Nothing in Article III gives the Court judicial review
2. Structural
a. Legislative power is Congress’ – Court cannot unmake laws that Congress has made
b. The other branches also take oaths to uphold the Constitution – why can’t the interpret it?
i. Cooper v. Arkansas decided this (1960s) – Eisenhower sent national guard to enforce Court’s integration decision even though he disagreed with it
ii. Modern examples of this tension = Bush thought waterboarding was Constitutional and said that Congressional act interfered with his right to decide this
3. Ethical
a. This is anti-democratic, b/c judges are not elected
4. Prudential
a. We want government to be responsive to people, and Congress is the most responsive branch – having the Judicial branch have the final word creates a rigid structure and seems like a bad design
Appellate Jurisdiction
1) Martin
a. Background story
i. Lord Fairfax had a grant from the King for the largest land parcel in VA
ii. Dies, leaves both Manor Land and Other Land to nephew Martin, who was a nonresident alien – under VA law, this is not allowed
iii. Government wants to appropriate land, but Martin wants to sell it himself – to Marshall. But VA has sold it to Hunter
iv. Timeline
1776 – Revolution/Declaration of Independence/Articles of Confederation