Tuesday, April 05, 2011
Originalism: Scalia; Thomas
· Constitution has a fixed textual meaning
· Text–>state ratifications–>pre-ratification and period history–> precedent
· Originalist more likely to overrule prior cases–not big on precedent
· 'Anti consequentialist'
· Ex. SCOTUS is definitive interpreter of Constitution; not exec, not leg.
· Look @:
o Text of constitution, including structure and other provisions bearing on the issue
· What is 'plain meaning' of the language
· Original public meaning: How would a reasonable person in the Framer's era have understood the language (time of ratification)
· Look at dictionary from times of drafting/ratification
§ Most textualists prefer original meanings, but are open to reasonable updating
· Intra-textual meaning: use the const. as its own dictionary; how is the term used in another part of the const.
· Read the provision in light of the whole document–each amendment should fit and be read as part of the larger document
§ Presumption that a document uses the same term consistently throughout–so can look to use of term in other part of documents to clarify meaning in specific provision
§ Don't construe one provision in a way that is plainly inconsistent with another current provision
§ Structuralism: read the text in light of the overall constitutional principles
· The constitution has principles built into it:
· Democratic representation; accountability of representatives to their consituents; const. counsels against race-based discrimination
· Problem = this is so general and can often be applied in either way when a case is split
o Context within which text was drafted, debated, ratified, and include legal background and traditions
o Original goals and norms that were accepted by those who ratifying and framing the constitutional provision in question
o Original understanding: focus on state ratifications–focus on the state debates to determine meaning
o Constitution is written–'lock-in' the meaning
o If a Constitution is supposed to be the law governing law makers, it cannot be remade by the parties which it is designed to govern
o Framer's didn't have a single intent
· Most originalists explain that Madison isn't 'Madison.' He's a representative of the views of 'we the people'
o Epistomological difficulty:
· Lack of records from that era
o Dead-hand control argument: approatiate to limit interpretation to what those who framed it 200+ years ago thought? World has changed.
· Also, founders not represent 'we the people'–they are dead white guys who owned slaves
o Interdeterminacy problem:
o Cognitive Dissonance problem: possible for any judge to remain objective for normatively charged issues of Con Law?
Legal Process Theory–John Hart Ely
· views the law from an institutionalist and procedural perspective
· Const. interpretation is not based on interpretation–based on 4 corners; but not as rigid as originalism
· Substantive values should not be in const. only procedural methods
· Use values and considerations from within 4 corners; but defer to judgment of individual institutions
· Representation-Reinforcement: elected officials are better representatives of 'we the people' than life-tenured judges
o Court should get involved if
· Ex. Other branches are adopting policies to try to stay in power/gain power
· Ex. The majority is attempting to 'choke out' the minority votes
· Criticisms of Proceduralism
o Outcome-driven: process may be working, opponent doesn't like outcome
o Public Choice Theory: Judiciary should defer to the political process unless a political market failure occurs
· difficult to organize large groups of people, can't really have direct democracy in the US today
Common Law Constitutionalism: Rehnquist, O'Connor, Stevens
· Modern con law less concerned w/ determining framers' expectations and more with applying precedent in new factual settings
· Primary tool of con law interpretation is judicial precedent–rather than originalist hx or abstract moral theory
§ Approach mirrors reality of constitutional advocacy–use precedent, but use original understanding/intent/morality as support
· Authoritative hierarchy:
§ Constitutional text
§ Original intent
§ Precedent and hx practice
§ Original or evolved purpose of the provision
§ Practicality and potential resistance
§ Ethical and political norms
· Look at what the consequences will be of taking certain actions and aim for a fair and just outcome
· The founding fathers couldn't have foreseen the present state of our nation and the problems it faces
· Functionalist-Courts should exercise deference to legislative power, but should be able to interpret the constitution in a way that still preserves the core powers of each branch.
· Formalist-It is the duty of a Judge to enforce the constitution as originally written and to police the lines the constitution created
Hamiltonian (Pro Executive)-The functionalism/formalism debate largely centers around the separation of powers and checks and balances.
· Functionalist (variety of pragma
rine”–seeks to prevent states from regulating interstate commerce in ways that discriminate in favor of in-state economic interests.
Necessary and Proper Clause
McCulloch v. Maryland (1819)–crucial in defining scope of congressional power and relationship of fed and state gov't
· F: state of MD tax 2nd nat'l bank of US–and bank refused to pay the tax
· P: trial ct. ruled in favor of MD, pl., MD ct of appeals affirmed
· I: whether the state of Maryland could collect a tax from the Bank of the United States
· H: Marshall (Marshall used the case as an occasion to broadly construe congress's powers and narrowly limit the authority of state gov't to impede on the fed gov't)
o Federal gov. has the power not only to exercise their express powers AND
o Under the necessary and proper clause Art I § 8, congress may choose any means not prohibited by the const. to carry out its express authority
· A: two main issues
o Does congress have authority to create the bank of the united states?
· 4 arguments:
§ Historical practice established the power of congress to create the bank–1st bank gives authority for 2nd bank
§ Refute the state of MD argument that states retain ultimate sovereignty bc it was states that ratified the constitution–marshall, No, it was ratified by 'we the people'
§ Scope of congressional power under article I
· MD: creating bank not an enumerated power
· “in considering this question, then, we must never forget that it is a constitution we are expounding”
· even though const. not mention power to create bank, congress can do so as a means to carrying out many of its other powers
· BROADENED power–expanded congressional authority to include IMPLIED congressional powers
§ Necessary and proper clause
· this provision makes it clear that congress may choose any means not prohibited by the const. to carry out its express authority
· Opposing view: necessary and proper clause is a limit on congress's powers allowing congress to adapt laws that are truly necessary
· Marshall counters by: necessary here means useful or desirable, not indispensable or essential