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Constitutional Law I
University of North Carolina School of Law
Marshall, William P.

Con Law
Spring 2012
Constitutional Interpretation
·         Text of the Constitution
·         History
·         Tradition
·         Political Theory
·         Moral Philosophy
·         Social Policy
1.      Constitutional Text
2.      Original Intent
a.       The court today rarely feels bound by original intent, even to the extent that it is discernible. This is particularly true with respect to those constitutional provisions that are designed to protect individual rights against governmental interference.
3.      Constitutional Structure
a.       Two structural principles have often been used for such interpretive purposes:
                                                               i.      Division of the federal government into three distinct branches
                                                             ii.      Division of power between the federal government and the states
4.      History and Tradition
a.       Used to identify the kinds of practices or conduct a provision was intended to deal with
b.      Basis for extending the reach of a constitutional provision
c.       To decide whether certain conduct deserves constitutional protection because it is part of an established American tradition
5.      Fairness and Justice
6.      Political Theory
a.       “basic principles of our democratic system,” one of which is “that the people should choose whom they please to govern them.”
7.      Social Policy
8.      Foreign, International, and State Law
9.      Supreme Court Precedent
·         Interpretivists insist that when courts engage in judicial review, their only legitimate task is to interpret the Constitution. Courts may therefore not strike down actions of the people’s elected representatives on the basis of norms that lie wholly outside the Constitution.
·         Noninterpretivists took the position that courts are not limited to interpreting the words of the Constitution. Instead, courts in appropriate cases may enforce unwritten norms that derive entirely from extraconstitutional sources such as natural law or moral philosophy, without tying or tracing them to any specific provision of the document’s text.
o   Rely for support on the Ninth Amendment, which provides that: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
Judges must zealously follow the text of the Constitution without consulting any source other than the words themselves. Also known as strict constructionism, clause-bound interpretivism, or absolute literalism.
Originalists contend that in construing the Constitution, a court may properly look to the text of the document itself, and, where the text is unclear, to the original intent of the constitutional framers as well. However, if these two sources are not sufficient to give meaning to a clause of the Constitution, judges cannot invoke that provision to block actions taken by the political branches. According to originalism, the power of judicial review may be invoked only when it is absolutely clear from the text of the Constitution or the Framers’ intent that the specific practice or conduct in question is unconstitutional.
Nonoriginalists, by contrast, reject the binding effect of original understanding. Nonoriginalists are of two types:
1.      Textualists who believe that the only legitimate basis for constitutional interpretation is the words of the document itself.
2.      Others who reject textualism and instead take the position that while the courts may consider the text of the Constitution, as well as the intent of the Framers, courts are not limited to those sources. Judges may interpret the Constitution in light of all potentially relevant sources, including history, tradition, natural law, logic, moral philosophy, political theory, and social policy.
Federal Judicial Power
Article III of Constitution defines powers of federal courts.
Marbury vs. Madison creates the authority for the judicial review of the constitutionality of legislative and executive actions.
·         “It’s the province and duty of the judicial department to say what the law is.”
The Supreme Court also has the authority to review the constitutionality of state court judgments and the acts of state officials.
Marshall’s four arguments to support judicial review (p. 15 in Green Supplement)
Article III, §2, cl. 2divides the judicial powers into two separate “piles”:
1.      Cases SCOTUS can hear in its original jurisdiction
a.       Those “affecting Ambassadors, other public Ministers and Consuls, and those in which a States hall be a party…”
2.      Cases SCOTUS can hear only in its appellate jurisdiction
a.       SCOTUS shall have appellate Jurisdiction, both as to Law and Fact, with such Exception, and under such Regulations as the Congress shall make.”
Federal courts may also review the constitutionality of conduct engaged in by the states. (p. 22 in Green Supplement)
It is precisely because judicial review is counter-majoritarian that it represents such an indispensible part of our constitutional system of government.
·         The Constitution and Bill of Rights safeguard individual rights against an unrestrained minority by placing an array of restrictions on the authority of federal and state governments.
·         It is through the mechanism of judicial review that the government actors could, where necessary, be forced to honor the Constitution, even if it was contrary to the wishes of those who elected them to office.
·         Judicial review forces us to reexamine what we or our representatives have done and to decide whether or not we agree with the Court.
·         Court’s interpretation of the Constitution may, in the end, be rejected.
o   People may register their disagreement with the Court by amending the Constitution
o   A second means by which the political majority may register its disagreement with the Court’s reading of the Constitution is though the appointment process. Because Supreme Court Justices and all lower federal court justices are appointed by the President, the process of filling judicial vacancies may be used to bring the federal courts more closely in line with popular thinking.
o   Popular opposition to the Supreme Court’s interpretation of the Constitution may cause individual justices to

law limiting amount of wheat that farmers could grow for their own family’s consumption. SCOTUS looked at all of the wheat for home consumption cumulatively, and found a substantial effect on interstate commerce.
2.      Gonzales v. Reich: Congress can constitutionally can prohibit the cultivation and possession of small amounts of marijuana for personal medicinal use. The court said marijuana, like wheat, is a crop that is bought and sold in interstate commerce. So growing is economic activity, and looked at cumulatively, has a substantial effect on interstate commerce.
***Commerce cannot regulate noneconomic activity by finding that the cumulative impact creates a substantial effect on interstate commerce***
·         United States v. Morrison: Created a civil cause of action for victims of domestic abuse, because Congress found that abuse against women cost the American economy billions of dollars per year. SCOTUS declared this unconstitutional, saying that Congress was regulating non-economic activity: sexual assault. When Congress is regulating non-economic activity, it cannot find substantial effect based on cumulative impact across the country.
1.     Power to Regulate Interstate Commerce Itself
a.       The power to regulate interstate commerce itself is plenary (unrestricted).
b.       The power to regulate interstate commerce itself includes the power to regulate the interstate shipment of goods and the power to regulate the methods of transportation used to accomplish interstate shipment (Gibbons v. Ogden).
c.        The power to regulate the interstate shipment of goods includes the power to prohibit the shipment of goods (the commerce prohibiting technique) as in Champion v. Ames (the Lottery Case) and Darby (which overruled the Child Labor Case).
d.      The power to regulate the methods of interstate transportation includes the regulation of interstate instrumentalities such as carriers (including interstate railroads, buses, trucks, airplanes, boats (as in Gibbons v. Ogden), etc.) and the power to regulate the channels used by these interstate carriers to transport goods including interstate highways, waterways, bridges, railroad tracks, and the Internet. This also includes the power to protect the channels and instrumentalities of interstate commerce them from both interstate as well as intrastate threats. This is a description of the first two categories described by the Court in Lopez.
e.       When regulating interstate commerce itself, the Congressional motive is irrelevant even if the regulation is designed to achieve non-economic objectives such as to promote morality (as in the Lottery Case).