Study Materials
Constitutional Law
Professor Munroe
OVERVIEW
Court Interpretation/Judicial Review
Text of the constitution (time document is ratified)
Literal definitions of the words used, or
Purpose behind the drafting of the particular clause
Drafters of Constitution expected the document would be interpreted using both
When there is text, judges will still look at context
Context how does this clause relate to the clauses surrounding it (time document is ratified)
Related Provisions
History – this gives you the idea as to what problems the framers were looking at (time document is ratified)
Specific – specific historical evidence about particular clauses (look at history of papers, notes, etc.)
General – Historical backdrop (society, civil war, etc.)
If your main sources of info for interpretation are Text, Context, History you will have a Static Consititution which will not change its meaning over time (Judges that believe this are called Formalist judges 1873-1937) (Scalia & Thomas) – They may also pay respect to some precedent under “settled law”
Two policy arguments for originalism/formalism:
The very nature of interpreting a document requires that its meaning be limited to its specific text and its framers’ intentions
It is desirable to constrain the power of unelected judges in a democratic society
Practice – what do the legislative or executive branches think are constitutional (Holmesian 1937-1954)
Legislative or executive
Social beliefs – what does the mass of the electorate thing
This will allow the constitution to change over time – Living or evolving constitution – Holmseian Justices (Rehnquist)
Precedent – (Natural Law 1789-1872)
Core holdings – most justices don’t like to overrule precedent
General Reasoning – what about dicta and judicial reasoning
This appears to be the interpretation the framers had when they made the constitution
Natural Law Theory of Interpretation or Common Law Interpretation (O’Connor & Kennedy(Holding), Souter(Resoning + Holding))
Prudential Considerations – What would make the most sense (Instrumentalist 1954-1986)
Sound Social Policy – Instrumentalist judges (Ginsburg, Breyer, Stevens)
These justices are more willing to find standing in order to get to the merits and establish the sound social policy
The Federal Judicial Power
1.Judicial Review
a. Marbury v. Madison (2) Original judicial review case
b. Established judicial review over all FEDERAL executive and legislative actions
c. Text:
i. Article III § 2 – O.J. Ambassadors, other public ministers or consuls, or state as a party
1. Only argument is that Madison is a public minister – this is dangerous
2. Appellate Jurisdiction in all other cases
ii. § 13 of Judiciary Act
1. Exclusive Supreme Court Jurisdiction
a. State v. State case
b. Against an ambassador/public minister (Law of nations = international law)
i. This category is not about domestic matters, but about foreign ambassadors serving in the U.S. and their domestic servants
ii. The U.S. wanted to insure against a district court judge hearing a case that involves gov immunity
iii. Foreign ministers would feel more comfortable about coming to the U.S.
iv. All of the justices knew what the purpose of this act was
2. Non-Exclusive Supreme Court Jurisdiction – it could be brought in S.Ct.
a. State v. Citizens(any state or alien)
b. By an ambassador/public minister
c. Any case involving a consul or vice consul (secondary people, usually many more)
3. Appellate jurisdiction (NOT ORIGINAL JURISDICTION)
a. District and State Courts
b. Admiralty and Maritime
c. Writs of Mandamus to any court appointed or persons holding office
i. When you read the context you can see that the whole sentence is referring to appellate jurisdiction
iii. If you read literal text only it is very dangerous, when you know the purpose and history surrounding it – it will put it into context (you must look at the purpose and history)
iv. A written constitution – to make sure people follow those limitation, and without judicial the purpose would be frustrated
d. Marshall wants to create this constitutional problem in order to establish the power of judicial review – he deliberately misreads the statute
e. Context:
i. The court stated that the separation of powers theory requires the judiciary state the law and establish a working system of checks and balances
ii. Related Provisions – indicate the court should be the guardians of the people against the executive and legislative branches
f. History:
i. States were establishing judicial review
ii. There were some specific statements made in the federalist papers regarding the power of judiciary
g. Purpose:
i. It is emphatically the province of the judicial department to decide what is law
ii. The purpose of a written constitution is to ensure people follow the limitation therein
iii. Related provisions in the constitution suggest that the judiciary should follow the constitution as they see fit
Judicial Review of State Court Decisions
1.Came along in two cases:
a. Martin v. Hunter’s Lessee – property argument – Federal review established to:
i. Structure led to federal power because the S.C. needed to review something if Congress didn’t establish lower federal courts
ii. State prejudices would lead to obstruction of the regular administration of justice
iii. Ensure uniformity among federal law – the U.S. Constitution should mean the same thing among all the states and therefore the SupCt must be the final word CONTEXT – federalist theories
b. Cohens v. Virginia – criminal case about lottery tickets – Fed Review affirmed
2.Limits on the federal judicial power (3)
a. Interpretive Limits
i. Two views on interpretive limits of judicial review
1. Originalism – those who believe that unelected judges can only protect constitutional rights only if they are clearly stated in the text or intended by the framers
a. If the Constitution is silent, it is for the legislature, unconstrained by the courts to decide law
b. These are the Formalists
2. Non originalists – those who believe the Constitution should evolve by interpretation – non-static Constitution
a. Natural Law – the Constitution should be interpreted with precedent and logic
b. Holmesian – what is the legislative practice/tradition of constitutional meaning
c. Instrumentalist – those who focus on a just society, sound social policy, prudential
ii. There are essentially four historical interpretive limits: Formalist, Holmesian, Natural Law, Instrumentalist
iii. Two types of formalist interpretation: Literal intent of Const. v. Specific intent of framers
iv. Kelso believes the framers were followers of Natural Law – their intent was to have a living constitution
v. United States v. Emerson (14) Second amendment interpretation
vi. Strict reading of the 2nd amendment leads to no firm answer…is it an individual right or only the right of the state
vii. The judge looks at history reasons and context
1. History – General
a. Self defense, and used in England to call on citizens to serve in the military or take part in policing
b. The individual right to bear arms was a crucial factor in the colonists victory over the British army in the Revolutionary war
2. Context
a. This right is located within the bill of rights, the Bill of Rights is not a bill of states’ rights, but those retained by the people
3. Prudential Considerations
a. In this instance it appears as if the traditional “sides”(conservative v. liberal) are switched and the liberal viewpoint is more prudential while the conservative side is more traditionalist
4. Individual right v. State Rights and 2nd Amendment – FROM CLASS
5. Individual
a. Text – “Right of the people to bear arms not infringed”
i. Literal – Possession of arms
b. History – Long tradition(before second amendment) of individual gun ownership (General)
i. Ratification debates, drafting (Specific)
c. Context/Structure
i. This right is located within the Bill of Rights retained by the people, not the states
ii. You will look at where a provision is in relation to other provisions(look at the other provisions to interpret the provision in question)
d. Precedent
i. Miller core holding didn’t address this problem specifically, the government gets to regulate only certain types of weapons
e. Prudential
i. He notes there is an affirmative argument on the side of the conservatives and doesn’t give much value to the liberal arguments
6. State
a. Text – “Well regulated militia” “Necessary for security of state”
i. Purpose of this provision is more about protecting the free state
b. History – English military, colonial right (General)
c. Context/Structure
i. This amendment is about a federal v. state battle, not individual rights
d. Precedent
i. Miller reasoning adopted states rights view
ii. Much more precedent to this day favoring states rights, not individ
want different outcomes)
c. If a state advisory opinion affects a federal issue, that case can never go to the Fed Ct system because it is made as an advisory opinion (if it’s a state advisory opinion in a federal case that applies state law, the court will give deference to the advisory opinion)
d. You can still get a declaratory judgment if you present a certain enough injury in the future
2. Standing – “distinct injury in fact caused by the conduct redressible by the court”
a. The most important justiciability requirement
b. The determination of whether a specific person is the proper party to bring a matter to the court
c. Policies (4)
i. Separation of powers by restricting the availability of judicial review – standing limits what matters the judiciary will address and minimizes judicial review of the actions of the other branches of government
ii. Prevents a flood of lawsuits by those who have only an ideological stake in the outcome
iii. Improves judicial decision making by ensuring that there is a specific controversy before the court and that there is an advocate with a sufficient personal concern to effectively litigate the matter
iv. Ensures that people will raise only their own rights and concerns and that people cannot be intermeddlers trying to protect others who do not want the protection offered
d. Burden on the plaintiff to show evidence to establish standing
e. Instrumentalist justices are more willing to find standing in order to get to the merits and establish the sound social policy
f. Formalist & Holmesian justices are more skeptical about standing and will not allow it more freely
g. Test – Modern Holding of Lujan – Read all dissent&opinion
h. You have to show an injury to you caused by the conduct you’re challenging that is redressible by the court (3 Constitutional requirements, must have all)
i. Injury in fact
1. Requiring an injury is a key to ensuring that there is an actual dispute between adverse litigants and that the court is not being asked for an advisory opinion
2. The complaint must specifically allege that the P has personally suffered an injury
a. “That to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained or is immediately in danger of sustaining a direct injury as the result of that action and it is not sufficient that he has merely a general interest common to all members of the public” – Lujan
3. Injuries to common law(property, K, torts), constitutional(individual liberty), and statutory rights(granted by Congress), or others are sufficient
4. Your injury must be a distinct injury to you, not one that is shared by every other citizen in the U.S.
5. Injury either must be present, or certain enough in the future
6. Congress can grant standing to certain grievances, the court will then defer to that and grant the distinct injury where there wasn’t one before
7. The court could say that Congress allowing the injury is merely one interpretation and they have the power to override(that doesn’t happen) – Scalia and Thomas viewpoint – it’s not constitutional (they can’t expand “case or controversy”)
8. Lujan v. Defenders of Wildlife (40) Action against interpretation of a statute
a. The Constitution’s central mechanism of separation of powers depends largely upon common understanding of what activities are appropriate to legislatures, to executives, and to courts
b. The party invoking federal jurisdiction bears the burden of establishing standing
c. When a P’s asserted injury arises from the government’s allegedly unlawful regulation of someone else, much more proof is needed to establish standing
