OUTLINE
Constitutional Law
Spring 2016
Prof. Bam
(lay out each section and then key everything back to framework for analysis)
Sources of Authority
*See Hypo in class notes (1/15/16)
6 methods of constitutional interpretation:
– Text:
o Look at the words themselves. The text of the Const. is the starting point. Then look at the context in which they are being used. Then look at how the same word or phrase is used in other parts of the Const.
§ Advantages: it is simple – text is right there. Consistency – not much variation in the text over time. Limits judicial discretion –(maybe this is the most democratic way to uphold the words / purpose of the founders; hard to refute basic general meaning of words).
§ Disadvantages: meanings of words change; words sometimes have multiple meanings. Words can be open to different interpretation. Sometimes the text is vague / not directly on point. Or perhaps there is too much consistency – sticking to the text (“stuck with a dead hand”) may lead to irrelevancy of the text over time.
o Hypo: Pres. passes law, making it illegal to criticize Dem. Party. If justices use textual approach to interpret Const.: First Amend. only mentions Congress, so perhaps Pres. isn’t restricted by First Amend.
– Structure: (SEE Federalism and Sep. of Powers p. )
o Look beyond text at relationships created by the document. Infers meaning to interpret the Const.:
§ Separation of Powers:
§ Federalism
§ Advantages: Similar to textual advantages.
§ Disadvantages: Limited analysis (Sep. Powers and Federalism). Federalism can be used to support either side of relevant issue (States or Fed.). Too removed from the text itself – uncertain.
– Precedent:
§ Advantages: Predictable and stable.
§ Disadvantages: Little flexibility (esp. with on point cases). Limits discretion of modern judges. If there isn’t precedent, then this is no help. Sometimes we need abrupt change and precedent can be a restriction. If Court misinterprets Const., then it is very difficult to overturn, and there is no easy way to override the Court (Court either needs to correct mistake in future or public can vote in Const. Amend.), unlike with statutes that Congress can rewrite.
– History:
o Look at events before, during, and after the writing of that provision of the text. Knowing what motivated the framers can help us to understand what they and their words were / are trying to accomplish.
§ Focus on intent of the framers; intent of ratifiers (public at time); meaning of words at that point in hx.; see how states operated under that provision, how they followed it (or didn’t), and understood it throughout hx.
§ Advantages: resolves ambiguity in text. Slow evolution (some feel progress should move at a snails pace so as not to rock the boat).
§ Disadvantages: Slow evolution (following hx. may mean adherence to outdated social and political norms – may be impalatable for society today). Difficult – can’t always be certain of historical meaning. Maybe the framers didn’t want us to focus on their intentions.
– Consequences (policy):
o Looks at which interpretations produce the best results (most just). Similar to pragmatism: “Const. is not a suicide pact.” Prioritizes policy.
§ Advantages: Frees us fromt the restraints of history; essentializes modern needs. Flexible. Consistent with vision of Democratic Theory – the current society (people) govern themselves, they aren’t governed by old dead men. “We the people” = “We the people today.”
§ Disadvantages: Too much judicial discretion – judges get to decide what a good or bad consequence is – no “bright line” answer.
– Values:
o Looks at morals, social norms. What are the values of the document and values [high level and broad] of the people (liberty, equality, independence, etc.)
§ Advantages: similar to consequences. Tailor rulings and figure out what are key American values and what is morally right Gov’t action.
§ Disadvantages: Similar to consequences. Less restrictive – judges have too much discretion to rule on their interpretation of “American values.”
Originalism v. “Living” Constitution
Originalism:
– Focuses heavily on the historical understanding of the terms we’re trying to interpret (focus only on TIME CONST. WAS WRITTEN):
o The original intent theory: which holds that interpretation of a written constitution is (or should be) consistent with what was meant by those who drafted and ratified it. This is currently a minority view among originalists.
§ Disadvantages:
· “most of the Founders did not leave detailed discussions of what their intent was in 1787, and while a few did, there is no reason to think that they should be dispositive of what the rest thought. Moreover, the discussions of the drafters may have been recorded, however they were not available to the ratifiers in each state.
· Original intent is seen as lacking good answers to three important questions: whether a diverse group such as the framers even had a single intent; if they did, whether it could be determined from two centuries' distance; and whether the framers themselves would have supported original intent
o The original meaning theory: which is closely related to textualism, is the view that interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have declared the ordinary meaning of the text to be. It is this view with which most originalists, such as Justice Scalia, are associated.
– Key Difference between meaning and intent:
o Ex: The Twenty-seventh Amendment was proposed as part of the Bill of Rights in 1791, but failed to be ratified by the required number of states for two centuries, eventually being ratified in 1992. An original intent inquiry might ask what the framers understood the amendment to mean when it was written, though some would argue that it was the intent of the latter-day ratifiers that is important. An original-meaning inquiry would ask what the plain,
er is broad enough, but arguments continue to creep up so be careful and specific with argument here.
3) Limit Government and protect individual rights:
a. Not many individual rights in the original text – BOR ratified shortly thereafter
b. Initially only applied to the federal government, later incorporated against the states
c. Congress cannot:
i. Pass ex post facto laws (retroactive)
ii. Suspend habeas corpus
d. Government and states can limit individual rights as long as they are acting within their powers and have certain “interests”
Judicial Review
Framework:
1. Is the government action constitutional?
2. Is it a federal action or state action?
Federal:
Congress only has the powers “herein” granted (Art. 1)
What in the Constitution can Congress point to that legitimizes their action?
Does this law properly fit within that power?
Are there other constitutional provisions that limit what the federal government is doing?
States:
1. First question is moot – states have innate police powers
Second question: is there a constitutional provision prohibiting this state action?
How can the court be “checked” (remember themes of too much concentrated power – justices can’t be fired (only impeached), they can’t get “demotions…” (is this good or should we have elected judges?)
· Amendment
· Practice – ignore; find creative ways to work around the court
Overview:
The Constitution of the United States is a written document that sets forth the powers and duties of the federal government and guarantees fundamental rights to people in the United States. Article III of the Constitution establishes the judicial branch and vests judicial power in the Supreme Court, as well as any lesser federal courts as Congress may create, such as federal district courts (trial courts) and circuit courts (appellate courts). In the landmark case of Marbury v. Madison, the Supreme Court held that the judicial branch of the federal government has the authority to interpret the Constitution and declare acts of Congress unconstitutional. This process of determining constitutionality is known as judicial review and may apply to acts of the legislative and executive branches, as well as state governments. Federal courts may conduct judicial review where they have jurisdiction over a claim that fulfills the requirements of justiciability.
Constitutional Provision:
