Big Picture
All laws discriminate.
· For the discrimination To be unconstitutional,
· a law has to discriminate invidously. IE, must take away a right without a valid reason (police power)
· AND must have the effect of discrimination. (because if law is meant to be discriminatory and NO HARM NO FOUL THEN No injury in fact and No standing.)
· If you had to review every law on a strict scrutiny basis because the law impacted someone negatively, the state would never be able to govern.
INTERPRETIVE METHODOLOGY
· Plain Meaning: ex. Congress can’t prohibit any speech under the 1st amendment
o Good: If there is a plain meaning and it makes sense to use.
o Bad: Many times there’s not a plain meaning. Sometimes, its not feasible to use (ex. free speech).
o Summary: if plain meaning isn’t clear or seems wrong, then look at other approaches.
· Intent: (Thomas) ex. shopping list where you knew what they meant because that’s the only reasonable way to read.
o Good: Advocates say this is conclusive
o Bad:
§ Who’s intent? Can be stated at different levels of abstraction (viewing intent of “equal protection” at different levels would produce different results- only what they were thinking would be narrow use and general idea would be broad and apply to many groups)
§ At state level, many times they don’t know what they’re voting on
§ Also, they may differ in opinions of lie
§ Certain times left vague because couldn’t agree on specifics (or may leave problem to be resolved later if it arises)
o Originalism (Chemerinsky): 1) the very nature of interpreting a document requires looking at its framers’ intent; 2) constrains the power of unelected judges in a democratic society (decisions ought to be made by those politically accountable. So court justified in invalidating government decisions only when it is following values clearly stated in the text or intended by the framers.
· Purpose: Look to purpose of the law. There is a level of generality problem.
· Other
o Community Standards
o Textualism
§ Community Then (Scalia):
1) How language was used by speakers at the time.
2) Look at historical practices and understandings of the time.
3) If unclear, go with precedent.
4) But put boundaries in today’s judges
o Judicial branch is the least democratic
o Judges should not make public policy
o Marbury v Madison: Courts can strike unconstitutional legislation
§ By what Constitutional right?
§ None in the constitution
Problems with Textualism
1. Hard to find out what original judges thought
2. Thomas— meaning of the text is undeterminable, go with the popular interpretation of the Constitution
3. Breyer – go with live people rather than dead people
What do we need
§ Community Now (Breyer): Gives judges too much discretion.
o Structure of Constitution (Breyer)
§
o Do the Right Thing: Do what is best for society.(Posner)
§ Divided by time
1) Result now
2) Result in the future
Questions: Does the court have a consistent theory of interpretation over time? What about individual justices? What about in certain types of cases or problem? Do justices do different in different cases and not tell anyone why?
Levels of Generality
Heighest level of generality— the most general aim
Do the right thing
Constitution = life should be good
Lowest level of generality—cruel and unusual punishment
At the lowest level of generality—boiling people in oil
Claus—intended to be aobut discminitory punishment
Purpose/ intent
Level of generality difference
Purpose—the most general aim
Intent—the aim that you wanted
High stakes: Interpreting US Constitution
Power of the Supreme Court is immense
Marbury invention of judicial review
Overturn Supreme Court Ruling
Reverse it by Constitutional amendment
1) proposed by 2/3 of House and ratified by ¾ of the states
2) Need a convention
· Never been done
· No limit on what can happen at convention
o BIG ISSUE
· No difinitiveness on process of calling a Convention
INTRODUCTION
America known for good civil rights because:
· Protection against FEDERAL government.
o Bill of rights
o Common law (attitudes and traditions of people)
o Federal government can only exercise enumerated powers (states can do anything not prohibited)
§ To extent enforced, this prevents govt. from being tyrannical; provides checks and balances; institutions jealous of each other’s power and therefore disposed not to let competing institution exceed its limited powers
§
· Protection against STATE government:
o Competition among the states (citizens are free to leave)
o Ability to elect officials (not explicit requirement in Constitution, but it does require a republican form of government)
o People in more immediate position to address problems with their state government.
Revolution
Founders: Britain fail to respect US citizens as equal to British citizens
Founders thought U.S. government would be better than British
Constitution: source of human rights and civil rights
Most important guarantee would be institutional design of the Constitution
We want Poltical liberty–
Political liberty/ political freedom/ liberty/ human rights
Pre-Constitution
Articles of confederation: Union pulling apart
Stronger national government needed
The Constitution
Aritcle 1 section 10 expressly prohibited state action
nothing it the first 8 amendments constrained the states
Ratifying the Constitution
Conflict in Ratification
Centralizers v political decentralization
Federalists:
stronger national government v
Anti-Federalists
weaker central government and stronger states
· Bitter oppostion to Constitution and fear of stronger poltical government
Through Constitutional history of US and to this day
· Oppostiton to the Cosntitution/ maybe not enough votes
· Constitution does not protect liberty
To maximize votes—framers agree to bill of rights
Add First 10 Amendments
compromise in Conflict lead to Bill of Rights
Bill of Rights is part of Constitution
Compromise between anti-federalists and federalists
Barron v. Mayor and City Counsel of Baltimore,
1833 (Diverting water in wharf):
Marshall held: amendments demanded security against the apprehended encroachments of general governments, not against state governments. Just compensation of 5th amendment and protection of individual liberties in the Bill of Rights applied only to the federal government.
· THIS REMAINED THE LAW UNTIL AFTER THE POST-CIVIL WAR AMENDMENTS
Barron
Constitution binds the state
(acting throught the city)
onstitutional and slaves are property, not citizens of the U.S.
Dred Scott is not a citizen, has no standing to sue.
Slavery can’t be abolished by court rule. Radically pro-slavery.
Facts: Territory north of Missouri is slave-free. Missouri is a free state: Dred Scott taken by owner to Missouri, is in a free state does not want to return to Mississippi
Analysis:
· Slaves are property. Governement can’t take property by freeing slaves.
Supreme Court—Dred Scott has no standing because he is not a citizen; no political instution can outlaw slavery; neither courts nor congress can outlaw slavery
· North was enraged
Lincoln—decision of the court binds the parties; does not bind me or the countries morally; I would appoint justices to overturn the decision.
· Lincoln’s view on judicial review: Supreme Court decisions bind the party but not the issue.
Dred Scott energized free states and abolistionists
Slave holders said slavery is doomed. If we stay in union slavery is doomed. Lincoln elected; South walked.
North responeds. You can’t walk.
Civil war
North v South
Industrialism v Southern agricultural economy
From a lawyer’s point of view: Dred Scott started the civil war
Holding of Dred Scott:
no more compromises on Slavery; slavery is untouchable
Supreme Court was South heavy.
Defense of Supreme Court: It was inevitable
Not a brillant piece of judicial statesmenship.
All the statesmeanship in the world the war was unevitable.
Pretty soon there was no compromise.
North= no slavery; south = slavery
People at the time thought Dred Scott percipatiated war
North wins because it is industrialized/ military might.
The Post-Civil War Amendments
First major amendments to the Constitution
13th amendment—1865, Abolished Slavery
neither slavery or involutary slavery shall exist in the US
14th amendment –1868,
Why enacted
1. Override Barron v Baltimore
2. Overrid Johnson’s veto; of Civil Rights Act
· South occupied by North armies
o Still guerrilla warfare against the North
o Violence against freeman
Civil Rights Act—come down on South
Lincoln dies, Vice President Johnson becomes president
Johnson: from border state, sympathy to South
Veto Civil Rights Act
Protection of negros and their right not to be re-enslaved
‘no deprivation of life, liberty without due process’
15th Amendment : 1870; Right of citizens to vote no matter what color
Each of the three Civil war Amendmend ended with a section authorizing Congress to enact legislation to enforce its prvisions. But for generations, delination of the scope of the Amendments was left almost entirely to the Supreme Court.
Slaughter-House Cases,
873 (Challenge to monopoly under newly passed 13th and 14th amendment)
