I. The Role of the Courts in Constitutional interpretation
a. Judicial Review and the Constitution Structure
i. Liberty and Tradition
1. Bowers v. Hardwick (SCOTUS 1986 J. White for Maj.)
a. FACTS: Hardwick and adult male charged with violating an anti-sodomy law when he was having sex with another adult male in the bedroom of his house. While the prosecution was dropped, Hardwick brought suit to have the law overturned, and as a result of the embarrassment where he was forced to stand naked for hours in front of others. Statute said that “mouth or anus of another”
b. ISSUE: whether the Constitution creates a fundamental right upon homosexuals to engage in Sodomy.
c. Holding: No, it does not. Ct. Examines the amount of states that have anti-sodomy laws, the tradition and the existence of such laws and the original 13 colonies to see that the modern law comes from tradition and the founding beliefs of legal tradition. Justice White Takes a narrow view of the Liberty Interest of Hardwick so as to uphold the law. The act also facially did not allow sex for all couples, though the reality is they only enforced it against homosexuals.
d. DISSENT: Stevens J. ® Under Due Process clause this should have been decided as a privacy issue, and not gone about as the openness of the law to others, or the conept of a statewide morality being a legitimate state interest. It should have been that morality belongs to the person not all of society as a whole. He also points out selective application of the law within the state. Dislikes that the way the Court Decides the Case.
2. Lawrence v. Texas (SCOTUS-2003 Kenney for Maj.)
a. FACTS: Lawrence is brought up on a weapons charge, was caught while having anal sex. Both were arrested and detained under the “Homosexual Conduct Law” which made homosexual sex criminal. The Law was only directed against same sex couples.
b. ISSUE: “Under Constitutional Law, do homosexual sodomy laws deny equal protection to gave individuals, and should Bowers, a case that found that sodomy bans do not infringe on the substantive due process rights of individuals, be overruled and readdress?”
c. HOLDING: Yes as part of Constitutionally Protected liberty, homosexuals have the “full right” to engage in private conduct without government intervention. Ct also looks at the relevance of British and European Precedent that it is a a general moral issue, how western society has changed in recent years and how some of the comments stated in the first case were in accurate. Looks at the traditional application of the law to homosexual couples, the history of anti-sodomy legislation and the prohibition of same sex couples. Also consider that it was malum prohibita rather than malum in se.
d. CONCURRENCE: O’Conner ®only judge left from majority in Bowers said that she would overturn this law, but not overrule Bowers because in this case the law applied only to homosexuals, but if it applied to everyone she might just let it stand.
e. Dissent: Scalia, Thomas, Rehnquist ® Objects to revisiting Bowers and the opening of other cases which as the prohibition on the sale of sex toys, federal regulating of banging gays, lack of right to engage in sex outside marriage and that as a result of this case the incest and bestiality laws were all going to come out and kill us all.
3. Some Take Away Points:
a. Stare Decis while important to SCOTUS can be overruled at any time and the court does can and will change its mind on issues.
b. There is no legitimate state interest in making it a crime for fully consenting adults to engage in private, intimate sexual conduct that is not commercial.
ii. Origins, Theory (& Practice) Of Judicial Review
1. Federalists and Anti-Federalists manifested in the politics of a new Nation.
a. Federalists ® committed to establishing a strong national government took steps to strengthen national authority in defense, finance and trade.
b. Anti-Federalists(Democratic-Republicans) ® Took Power in the winter of 1800-1801 was a tense political moment. As the lame duck Federalist Congress was leaving they appointed 16 new members to the Federal bench
c. Also done were 42 new justices of the peace confirmed was William Marbury. John Marshall who was acting SOS to affix seal and delivery, but the commission of Marbury was never delivered.
2. Marbury v. Madison (SCOTUS 1803 Marshall for a unanimous Court)
a. FACTS: See above, Marbury did not get his appointment wand was angry so he field a lawsuit in the courts to try to force the hand of anti-federalist Adams as president to appoint him.
b. ISSUE (1) ® Does
take an oath to uphold the Constitution.
c. Cooper ®
i. Art. VI makes Constitution Supreme Law of the Land
ii. Judicial departments duty to say what the law is, the Courts decisions are equate to the Constitution itself.
iii. All government officials were bound to form their conduct to Courts Intreptation.
iii. Constitutional Interpretation—Sources of Interpretation
1. District of Columbia v. Heller (SCOTUS-2008 Scalia for Maj.)
a. Issue: Whether the right to keep and bear arms is a right of individuals or a collective right that applies only to state-regulated militias. Whether the DC law violates the 2d amendment of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?
b. Holding: Yes, the 2nd amendment protects an individuals right to posssess a firearm for pirvate use. The districts handgun possession ban in the home violates the 2nd amendment as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. The Maj. Used some odd logic in the case.
Operative clause “the right of the people to keep and bear arms, shall not be infringed—is controlling and refers to a pre-existing right of individuals to possess and carry personal weapons for self defense and intrinsically for defense against tryranny, based on the bare meaning of the words, the usage of “the people
