Constitutional Law I Outline

Cantu // ConLaw // Spring 2015

INTERPRETATION

1. APPROACHES

a. ORIGINALISM

Looks at Framers’ intent and extrinsic evidence

b. STRICT CONSTRUCTIONISM

i. Judge interprets the text only as spoken

ii. Once clear meaning established, there’s no need for further analysis

iii. Then avoid drawing inferences from previous statutes or Const.

iv. Focus on exactly what was written

c. BALANCING

i. Weigh one set of interests against another

ii. Const. doesn’t give guidance on how to weigh

d. PRUDENTIALISM

i. Discourages judges from setting broad rules for possible future cases

ii. Advises courts to play limited role

e. PRECEDENT

i. Looks to previous and similar cases

ii. Stare decisis to guide current case

iii. Structuralism

1. Finds meaning of a particular constitutional principle by

2. Reading it against larger constitutional document or context

f. NEW LEGAL REALISM

i. Examines law in everyday lives

ii. Ground-level up

iii. Also studies legal professionals and formal institutions

iv. Interdisciplinary combination of social science methods

2. CANONS OF CONSTRUCTION

a. TEXTUALISM

i. Plain meaning

ii. Rule against surplusage: Where one reading of a statute would make one or more parts of the statute redundant and another reading would avoid the redundancy, the other reading is preferred.

iii. Ejusdem generis (“of the same kinds, class, or nature”)

iv. Expressio unius est exclusio alterius (“the express mention of one thing excludes all others”)

v. In pari materia (“upon the same matter or subject”…when statute ambiguous, look at similar statutes on same subject matter)

vi. Noscitur a sociis (“a word is known by the company it keeps”… When a word is ambiguous, its meaning may be determined by reference to the rest of the statute.)

vii. Generalia specialibus non derogant (“the general does not detract from the specific”): if a later law and an earlier law are potentially in conflict, courts will adopt the reading that does not result in an implied repeal of the earlier statute.

b. SUBSTANTIVE

i. “Charming Betsy”

Don’t conflict with international law

ii. Fundamental values

Can be overridden by clear and unambiguous language

iii. Rule of Lenity

If ambiguous criminal statute, resolve in favor of D

iv. Avoidance or abrogation of state sovereignty

c. DEFERENCE

i. Deference to Administrative Interpretations

ii. Avoidance

1. If there’s usceptibility to more than one reasonable construction,

2. Choose interp that avoids raising constitutional problems

iii. Avoiding Absurdity

Legislature did not intent absurd or manifestly unjust result

iv. Clear Statement Rule

1. When statute might abridge long-held rights, courts will not interpret the statute to make the change unless the legislature clearly stated it

2. Rationale: legislature would not make major changes in a vague or unclear way, and to ensure that voters are able to hold the appropriate legislators responsible for the modification

d. CRITICISM

i. Every canon has a counter-canon (Karl Llewellyn)

ii. Judges can just choose canon that promotes its agenda.

LIMITS OF JUDICIAL REVIEW

1. STANDING

a. INJURY

i. Personally suffered (Los Angeles v. Lyons, black P must show a sufficiently plausible threat of future injury to possess standing to sue)

ii. Imminent future harm

iii. No 3rd party standing unless

1. 3rd party unable to assert own rights (Singleton v. Wuff, doctors would benefit from removal of abortion laws and women want to preserve anonymity)

2. Close relationship between P and 3rd party (Craig v. Boren, bartenders directly affected by drinking age restrictions on male customers)

3. Overbreadth Doctrine – violates First Amendment

4. Standing for associations

a. Members must suffer direct harm (Sierra Club v. Morton, members never used park to be turned into ski resort), or

b. Assoc. injured as an entity (Havens Realty v. Coleman, realty company’s racial policies undermined open housing group’s goals).

iv. No generalized grievances

1. Must violate individual’s legal rights