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Constitutional Law II
Villanova University School of Law
Pether, Penelope J.

Constitutional Law II, Spring 2010—Pether
I.                    Interpretative Theories
a.       Distinction between formal equality and anti-subordination
                                                              i.      Ascertainable range of legitimate const. interpretation arguably rankable hierarchically as to their legitimacy
                                                            ii.      At any give time court, text, and theories merge to make ‘law’
                                                          iii.      Legit constitutional Interpretations Have roots in relatively small group of normative constitutional principals. Brown is arguably the test case for the problematics of const. interp.
b.      Problems of judicial review
                                                              i.      Counter-majoritarian
                                                            ii.      Should only be exercised to invalidate legislation where there is no reasonable doubt as to their constitutionality (thayerian judicial restraint)
                                                          iii.      What are its legitimate limits? Should it be inter-subjective/neutral?
c.       Originalism
                                                              i.      Justifications
1.      Respect the original constitutional compact
2.      Don’t violate the consent of the governed
3.      Inter-subjective
                                                            ii.      Criticisms of originalism
1.      Read a deal-making process as giving rise to a singular voice
2.      Framers didn’t all share same idea of the constitution
3.      Are speculative/indeterminate
4.      Dead hand of the past
5.      Invite bad faith historical interpretation
                                                          iii.      Three different stages
1.      Original intent of the framers
2.      Original comprehension of the ratifiers
3.      Original meaning of the people, framers, and ratifiers
                                                          iv.      Three sources for determining original meaning:
1.      Text
2.      Contexts: drafting, debates, ratifications
                                                            v.      Three different types of Textual Analysis
1.      “Clause-bound” textualism
a.       Look at the structure of the clause
b.      If you say one thing you exclude other possibilities: cannon of interpretation. Read terms in their then-settled constitutional meanings
2.      Holistic Interpretation
a.       fix the meaning of necessary in necessary and proper as different from the use of absolutely necessary elsewhere.
3.      Structuralism
a.       Read it in the light of fundamental structural basis of constitution, like federalism and separation of powers.
b.      Or, deeper wells of constitutional logic: what is formal equality, libertarian presumption. Scalia reads Brown as being mandated by a commitment of EP to formal equality.
c.       And Have to read the constitution different after Reconstruction and 9th Amend.
d.      Legal Process Theory/Representation Reinforcement
                                                              i.      Rule of law is maintained via institutions and procedures: Constitution provides a structure for decision-making
                                                            ii.      Examine:
1.      Institutional competency of courts
2.      Institutional limitations of courts
3.      Their comparative competence compared to other branches
                                                          iii.      John-Hart Ely’s Representation Reinforcement variant of L.P.T.
1.      Critical provisions of the constitution are very open-textured and interpretable, so derive legitimacy not from what’s in the document but from the idea of representation and participation that it protects
2.      Carolene Products note 4 to find exceptions to the usual judicial restraint
3.      Process themes that Ely find in the Revolution and Constitution:
a.       Participation
b.      Separation of powers and enumerated art I, II, and III powers
c.       Free speech, and
d.      Equality
4.      SO: unelected judges don’t impose fundamental values, rather their role is to police the mechanism by which the system seeks to ensure that our elected representatives will truly represent
5.      Test: malfunction in the democratic process that cant be cured by process itself:
a.       Those in power are choking off channels of constitutional change to ensure they will stay in power and keep others out
b.      Though no one is actually denied voice/vote, representatives beholden to the majority are disadvantaging a minority through hostility or failure to register commonalities of interest, thereby denying them the protection afforded other groups by the representative system of gov.
                                                          iv.      Critiques of Ely’s RR Theory
1.      Not as value neutral or as predictable in its outcomes as Ely would believe
2.      Hard to distinguish between norms and values and structure and process
3.      What is the model of representation that Ely’s theory reinforces?
a.       Strong anti-majoritarian principal in the theory: Egalitarian Democratic
                                                                                                                                      i.      Genuine, anti-subordination equality
                                                                                                                                    ii.      Risk: so, could be much more activist in favor of discreet and insular minorities than Ely intended
                                                                                                                                  iii.      Judges get involved in solving poly-centric problems that they have no skills to do, no enforcement
b.      how do you avoid the theory becoming activist?
                                                                                                                                      i.      Many of the older generation were legal process theorists, tend to focus on federalism, libertarian presumption, local control, and formal democracy
1.      Opposite risk, not enough activism? Very thin, formalist approach
4.      What is the ideal balance of representation that would not require redress under the theory?
5.      Does representation reinforcement justify everything? Are some problems so important that the courts should protect them on normative grounds?
6.      Are there limits to what representation reinforcement could authorize? Could it authorize judicial review in the interests of the poor?
                                                            v.      Problem of Public Choice Theory for RR
1.      Discrete and insular minorities are easy to organize and mobilize, make the political process work for them
2.      Farber and Frickey attack this, including data documenting under-representation of blacks in political process
                                                          vi.      Legal Process Theories based on Institutional Competence might mean:
1.      Courts should defer to elected officials when they should not defer to bureaucrats
2.      When legis power is being used, that it is used according with fed/state rules on its legit exercise
3.      Should uphold decisions based on open deliberative legislative decisions, but be careful where legis has not been produce of just reasoned decisions, i.e. naked prejudice
                                                        vii.      Alexander Bickel’s Legal Process Theory: Judicial Restraint
1.      Court should be reluctant to use judicial review to interfere in political process or to second-guess the elected branches.
a.       There are instances where the court is authorized to decide a constitutional question, but should refuse.
b.      Should use any means available, by denying cert, manipulating ripeness/mootness/standing/political question, or deciding cases not on constitutional but on narrow grounds, to avoid deciding a constitutional question about the legality of legis or exec action where in the courts judgment this difficultly will eventually be solved by the political processes, they are not yet ready to strike the action down, and yet they do not want to add their assent/legitimate, what the legis or exec is doing.
c.       Bickel justifies brown by saying it’s the exceptional situation where the court is right in taking a principaled stand, but the court shouldn’t do this often.
d.      “the passive virtues are most needed in cases where the court is not prepared to invalidate legislation, but the effect of upholding the legislation would be do legitimate it in ways that would be lamentable”.
e.       Gunther’s Critique of Bickel: it requires active manipulation of doctrine and cases presented. Disingenuous: because it means court already had an opinion on how the question should come out, and just didn’t want to do it yet.
f.       Bickel’s Answer: constitutional rules will not stick if the political culture revolts against them, applying bad constitutional rules to avoid the backlash is even worse, t

asses equally
5.      So, VA statute is unconstitutional because:
a.       Criminalized conduct that is generally accepted if it is engaged in by members of the same race
b.      Classification as trigger for EPC: distinctions between citizens solely because of ancestry are odious to a free people whose institutions are founded on equality
c.       VA prohibition of interracial marriages only if they involve white people showed that the racial classifications are measures designed to maintain white supremacy. Purpose.
d.      Statutes restricts a constitutional right or freedom, to marry, solely on the basis of race, and we have consistently denied the constitutionally of measures that restricted the rights of citizens based on race.
e.       ALSO: Due Process Rights being violated: right to marry (a liberty interest) deprived without due process of law.
                                                            ii.      Notes on Loving and Government actions defined by race
                                                          iii.      Problems involving Racial Classifications in Law Enforcement and Adoption
d.      Facially Neutral Classifications (Discriminatory Intent and Effect)
                                                              i.      Yick Wo v. Hopkins
1.      Only Chinese aliens were prosecuted under an ordinance requiring laundries to be constructed out of brick
2.      A valid law unevenly and discriminatorily administered violates the EPC.
                                                            ii.      Notes on Yick Wo and Discriminatory Intent
                                                          iii.      Washington v. Davis
1.      A qualifying test for positions as police officers in DC was failed by a disproportionate high number of Black applicants (P).
2.      A law or official governmental practice must have a discriminatory purpose, not merely a disproportionate effect on race, in order to constitute ‘invidious discrimination’ under the 5th amendment due process clause or the 14th EPC.
3.      Strict scrutiny not applied unless there is discriminatory intent and discriminatory effect
                                                          iv.      Notes on Davis and Proving Discriminatory Intent
1.      Proving Discriminatory Intent and Effect
a.       Village of Arlington Heights v. Metropolitan Housing Develop. Corp.
                                                                                                                                      i.      Explained the evidentiary burdens concerning intent that were originally murky in Davis but clarified in following cases
                                                                                                                                    ii.      Proof of improper motivation shifts burden to gov of establishing that the same decision would have resulted even had the impermissible purpose not been considered. If the gov satisfied the burden, there is no EPC violation
b.      Hunter v. Underwood:
                                                                                                                                      i.      Invalidated a provision in the Alabama Constitution of 1901 that disenfranchised a person convicted of any crime involving moral turpitude which had been interpreted to include minor offenses like presenting a bad check
                                                                                                                                    ii.      Even if purpose of the provision was to disenfranchise both poor whites and blacks, fails EPC scrutiny because provision would not have been adopted but for animus against blacks.