Miranda McGowan
University of San Diego School Of Law
Spring 2012
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Constitutional Interpretation & Judicial Scrutiny
(a) Interpretive Arguments
(1) Precedent
(2) Textualism
(A) Examine provision and surrounding provision to glean phrase’s meaning.
(B) Examine how the word or phrase is used in other portions of the document.
(3) Original Public Meaning
What was the provision understood to prohibit or require at the time the document was drafted?
(4) Purpose
Interpret the text in light of the historical context surrounding the adoption of that text, and the problem the provision was trying to solve.
(5) Originalism
What did the Framers believe the text to mean?
(b) Wildcard Arguments
(1) Institutional Competency: What is each branch of government good at doing?
(2) Substantive values
(A) Equality: like cases should be treated alike. Identity of judge shouldn’t change outcome.
(B) Rule of Law: Promote [d]emocracy.
(C) Separation of Powers
(D) Libertarianism
(E) Representation reinforcement: Flaws or clogs in the structure of a representative government.
(3) Workability/Practicality
(4) Practice Under the Constitution / Contemporaneous Practice
(5) Social Norms
(c) General Rules of Analysis
(1) Later-in-time controls
(2) Nocitur Associas
(3) Expressio Unis
(4) Specific Trumps General
(5) Presumption against implied repeals à try to make the two pieces at issue compatible.
(d) Congressional Authority
(1) Remedial
(A) The Judiciary has a monopoly on the substantive meaning of the provision
(B) Congress can provide remedies only for violations that are judicially understood to actually be violations.
(2) Substantive
(A) Congress and the court have a shared interpretive power over the substantive meaning of a provision.
(B) Congress may enact legislation under the provision providing remedies for what Congress believes are violations even if the court would not read the provision that way.
(3) Prophylactic
(A) The court defines what violations are.
(B) Congress can prohibit activities that might lead to a violation of the provision.
(e) Standards of Review
(1) Rational Basis – Light Scrutiny – Substantive / Prophylactic – Default
(A) Does congress have a rational basis for believing that it has the power to create this legislation?
(B) Are congress’s means reasonably adapted to achieving a permissible end? (Some overlap between means and ends).
(C) The challenger of the statute bears the burden of proving there is no rational relationship.
(D) The state does not have to prove that the regulation is within Congress’s power, rather, the court will imagine possible interests that support a finding of authority.
(2) Heightened Scrutiny – Congruence and proportionality – Remedial
(A) Congruent: The law passed must be congruent to the power congress seeks to exercise. It must be related to the power.
(B) Proportionate: Law must be calculated to prevent actual violations of the Constitution or regulation of interstate commerce, not much broader.
(C) Congress has the burden of proving the law is congruent and proportionate.
(D) They must provide factual findings to support their contention.
Judicial Review
(a) Marburry v. Madison
Organic Act of the District of Columbia authorized president to appoint 42 justices of the peace. Marbury’s judgeship certificate was never delivered. Writ of Mandamus to the Supreme Court based on § 13 of The Judiciary Act of 1789.
(1) Does Marbury have a right to the commission?
Yes. All appropriate procedures were followed.
(2) Do the laws of his country afford him a remedy?
Yes. No person, not even the President, is above the law.
(3) Can the Supreme Court issue this remedy?
(A) Ministerial Acts vs. Political Acts. Yes.
“Questions, in their nature political, can never be made in this court . . . [But where the head of the department] is directed by law to do a certain act affecting the absolute rights of individuals . . . it is not perceived on what ground the courts . . . are excused from the duty of giving judgment that right be done to an injured individual.” See also United State v. Nixon.
(B) Jurisdiction. No.
Art. III § 2, Cl. 2 of the Constitution vests original jurisdiction in the Supreme Court for suits “affecting ambassadors, other public ministers and Consuls, and those in which a State shall be a party”
(1) The judiciary act arguably could’ve been interpreted to grant appellate jurisdiction for writ of mandamus to the Supreme Court.
(a) Nociter Associas: items of a list are generally of the same kind as one another.
(b) Expressio Unis: Expression of one implies the exclusion of the other.
(4) Marshall’s Syllogism
(A) The federal government is one of limited and defined powers.
(1) The constitution is the supreme law of the land from sovereign will of the people and ratified by the people.
(B) Without judicial review, this limited government becomes one of unlimited powers.
(1) Judicial power to interpret the constitution and acts of congress comes from Art. III, § 1 “judicial power of the US shall be vested in one supreme court.” & § 2 “judicial power shall extend to all cases in law and equity arising under this constitution.”
(C) Judicial Review is necessary to a written c
ressional power would be unchecked.
(1) Other checks on power.
(A) Executive Veto / Congressional Override of Veto
(B) Democracy à Congress and President are elected.
(C) Federalism
(2) Tension: Judiciary branch is unelected à inherently undemocratic.
(3) Authoritative voice discussing the constitution.
(A) Rule of law, not men.
(B) Stare Decicis.
Federalism, Generally
Arguments for Federalism
Arguments Against Federalism
· Allows localities to deal with things that are “purely local.”
· The federal government has limited powers with most governance left to the states.
· Diversity in values can lead to greater satisfaction of the overall population.
· Existence of state governments enables greater citizen involvement in politics.
· States can experiment with certain policies and the stakes are lower.
· Complex problems not foreseen by the founders.
· Races to the bottom
· Prisoner’s dilemmas
· Free Rider Problems
· Repressive lock-ins
· Negative externalities
· National Market Issues
(a) Congressional Power under Art. I
(b) Constitutional Limitations on State Power – explicit and implicit
(1) Privileges & Immunities Clause – Art. IV, § 2
States cannot deprive citizens from other states of privileges and immunities.
(2) Dormant Commerce Clause
Congress’ power to regulate commerce implies that state cannot regulate interstate commerce.
(c) Enumerated Federal Power – Reserved State Authority
New Constitution in 1789 & the flaws of the original constitution.
(1) Uniform rules
(2) Inability of federal government to function (fund armies, raise capital).
(3) Weak congress with no ability to enforce legislation.
(4) New constitution to have a stronger interstate commerce power.
(5) Commercial / Productive Capacities.
(d) Dual Federalism
Federal and State governments are separate sovereigns, each have separate zones of authority, and it is the judicial role to protect the states by interpreting and enforcing the Constitution to protect the zone of activities reserved to the states.
