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Constitutional Law I
Villanova University School of Law
Samahon, Tuan N.

Samahon- Con Law Outline-Spring 2010
Interpretive Methods
A.    Originalism- fixed and knowable meaning
1.      Fixation Thesis- meaning fixed at time of ratification
2.      Knowable- how to know what words mean
a.       Clause-bound: plain meaning of the language
b.      Intratextual Approach: use Const. as a dictionary to find other places where the word was used and determine how it was used there
c.       Structural Approach: read text in light of overall constitutional principles
                                                                    i.      Reconstruction Amendments reflect a commitment to equality for freed slaves so Brown was rightly decided
d.      Era dictionaries: to find meaning of the word in that era
e.       State Ratification Debates
f.       Convention Records (Madison’s notes)
g.      Public Debates- Federalist Papers
3.      Original Meaning- what a reasonable person with an understanding of the English language at the time of ratification would have thought the words meant
4.      Formalism- care about the rules instead of outcomes
a.       by nature anti-consequentionalists because they don’t care what the consequences are of deeming something unconstitutional
5.      Textual Canons
a.       Inclusio unius- if certain things are included, others are considered excluded
b.      Noscitur a sociis- thing is known by its neighbors
c.       Surplusage- assume all words are there for a reason
d.      Ejusdem generis- “catch all” at the end of a list ought to be interpreted in same class as its neighbors
                                                                    i.      Treason bribery, and other high crimes and misdemeanors
e.       More specific provision controls over a more general provision
6.      Criticisms
a.       Founders had no way of predicting certain issues that would arise in the future
b.      To what extent were the Founders’ thoughts representative of the population of the time?
c.       Dead hand of the past- why be bound by it?
                                                                    i.      Reply- “Dead guys” also wrote statutes so should all of those be invalidated?
B.     Legal Process Theory (light on judicial review)- law is not just a set of rules, but rather a procedural structure by which legal rules are made and changed in an orderly way
1.      Representation Reinforcing Theory- Const. is about procedure, rather than substantive rights
a.       Constitution deals with how laws get made and how people are affected
                                                     i.      If the process is upheld, varied interests will be taken into account
b.      Courts should generally be deferential to political branches but there are instances where intervention is necessary:
                                                     i.      Political Market Failure: those in power are trying to keep out those who aren’t in power (ex. whites keeping non-whites out of political process)
                                                   ii.      Majority fails to see it has a commonality of interest with minority interest (ex. Brown)
c.       Filibuster- tool of the minority
                                                     i.      Way for minority to make itself heard
                                                   ii.      Need 3/5 to change filibuster but a filibuster would stop a resolution to amend a filibuster
d.      LPT is more formalist than non-formalist
e.       Syllogism Defending LPT
                                                     i.      Courts are staffed by judges
                                                   ii.      Judges are lawyers
                                                 iii.      Lawyers are good at process
                                                 iv.      Therefore, the Constitution is mostly about procedure
2.      Criticisms
a.       All about process until judges disagree with an outcome and then they cla

     “Switch in time that saved nine”
c.       Test became “substantially affects commerce”
3.      Wickard v. Filburn- Congress attempted to constrain wheat supply by using quotas
a.       Court said no direct effect on interstate commerce but it affected the government’s attempt to stabilize wheat prices
b.      Used argument that this particular act might not affect commerce, but aggregation of all similar acts would affect interstate commerce
3.      Heart of Atlanta Motel- Civil Rights Act of 1964 said that all persons shall be entitled to the full and equal enjoyment of goods, services, etc. without discrimination on basis of race, color, etc.
a.       Hotel on a major highway refused to accommodate certain classes, thereby affecting the interstate travel of those people
b.      Court used Commerce Clause to justify allow the act to stand
c.       Discrimination by hotels affects IC
d.      “If IC feels the pinch, it does not matter how local the operation which applies the squeeze”
e.       Didn’t use Equal Protection Clause because that only pertains to “state action”
4.      McClung (Ollie’s BBQ)- restaurant near interstate refused to serve certain classes as “dine-in” customers
a.       Court used Rational Basis Scrutiny- deference is given to Congress
                                                     i.       Where legislators have a rational basis for finding a chosen regulatory scheme necessary for the regulation of commerce, the investigation is at an end
b.      The discrimination had a direct and restrictive effect on the interstate travel of certain classes