THE BASICS II

Constitutional Law

Constitutional Principles

Rule of Law Constitution is the “Supreme Law of the Land”

Separation of Powers The Distributive Articles: I, II, & III

Checks and Balances Federalist #51

Judicial Review Marbury v. Madison

Federalism Dual vs. Cooperative Federalism

Individual Rights Bill of Rights

The Colonies & Constitutions

Colonists looked to their charters to protect against British interference with colonial politics.

In 1685, King James ordered the repeal of Connecticut’s charter and the government in Hartford was dissolved.

The colonists hid the charter (in an oak tree) and, following the revolution of 1688, reinstituted it as their fundamental law.

Genesis of Constitutional Court Cases

The court case is the basic building block of American law Civil suits Criminal prosecutions

Civil suits One party (plaintiff) files suit against another party

(defendant). Suits against governments involve respondents (government

officials) and must per se invoke an exception to sovereign immunity if it seeks monetary damages

Civil suits seek a remedy for an alleged wrong Actual damages Punitive damages Specific performance Declartory judgement Injunction

Genesis (con’t)

Criminal prosecutions Often involve issues related to constitutional rights Defendant can seek

Injunction against the application of an unconstitutional statute

File a demurrer to an indictment through a pretrial motion

Appeal of conviction to higher court

Habeus Corpus Ancient common law device persons use to challenge

the legality of an arrest or imprisonment (recognized by Constitution).

Interpreting the Constitution

Built-in Flexibility? Elastic clause Reserve clause

Judicial Interpretation of the Constitution “It is, emphatically, the province and duty of the

judicial department to say what the law is.” – Marhsall Doctrine of Original Intent (Meaning): judges should

attempt to determine what the Framers intended the provision to mean.

Living Constitution: Meaning of constitution must evolve to fit the spirit of the age

Textualism

Interpretivism (textualism): the proper judicial function ins interpretation as opposed to law-making. Judges are guided by the “plain meaning” of the

constitutional text when it is clear. “"[W]hen judges test their individual notions of

'fairness' against an American tradition that is deep and broad and continuing, it is not the tradition that is on trial, but the judges.“ – Justice Antonin Scalia

See “A Matter of Interpretation” for an essay on textualism by Scalia.

Originalism

Originalism: Judges should attempt to determine the original “meaning” or “intent” of the Founders (or Framers).

Important distinction One theory, original intent, is the view that interpretation of a written

constitution is (or should be) consistent with what was meant by those who drafted and ratified it.

The original meaning theory, which is closely related to textualism, is the view that interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have declared the ordinary meaning of the text to be.

Strict Constructionism: strict construction requires a judge to apply the text as it is written and no further, once the meaning of the text has been ascertained

As Scalia has said, "the Constitution, or any text, should be interpreted [n]either strictly [n]or sloppily; it should be interpreted reasonably";

The Living Constitution

LC: a theory of constitutional interpretation which premises that the Constitution is, to some degree, dynamic.

As the direct counter to originalism, which centers on meaning at the time of ratification, the theory of a "living" Constitution suggests a founding document that remains interdependent with an evolving society.

Its proponents thus argue that societal progress must be taken into account when interpreting key constitutional phrases. Pragmatism: the belief that interpreting the Constitution in accordance with long

outdated views is often unacceptable as a policy matter. Intent: the argument that the constitutional framers specifically wrote the

Constitution in broad and flexible terms to create such a dynamic, "living" document.

Al Gore: “I would look for justices of the Supreme Court who understand that our Constitution is a living and breathing document, that it was intended by our founders to be interpreted in the light of the constantly evolving experience of the American people.”

What Role does International Law have?

What role does international law have to do with constitutional interpretation by the Court?

http://www.youtube.com/watch?v=aFgKA-LfyWI&NR=1

http://www.youtube.com/watch?v=tBFp38YFDMU&NR=1

Activism vs. Restraint

Activism v. Restraint: opposing philosophies of judicial power

Judicial Restraint: theory of judicial interpretation that encourages judges to limit the exercise of their own power. It asserts that judges should hesitate to strike down laws unless they are obviously unconstitutional. Issues of standing, mootness, ripeness, political questions,

etc. have to do with judicial restraint.Judicial Activism: Courts are coequal participants

in the policy-making process. “it is far more important to be respectful to the Constitution

than to a coordinate branch of government” William O. Douglas

The Ashwander Rules

Judicial Restraint counsels judges to avoid broad or dramatic constitutional pronouncements.

Some of these rules can be found in Brandeis’s concurring opinion in Ashwander v. Tennessee Valley Authority (1936).

The Court will not anticipate the constitutionality in a friendly, non-adversarial proceeding. (Cases and Controversies)

2.      The Court does not anticipate in advance (i.e. without the necessity for hearing) the constitutionality of a question of Constitutional Law/interpretation. (Cases and Controversies, no advisory opinions)

3.      The court will not formulate a rule of law broader than the case which is before it. (Obiter Dicta going beyond the case issues is generally frowned upon but “done” all of the time)

The Ashwander Rules

4.      If possible the Court will dispose of a case on non-constitutional grounds (statutory interpretation is preferred over Constitutional interpretation)

5.      The Court will not pass on the validity of a statute on complaint of one who fails to show injury to person or property. (This is an issue of Standing)

6.      The Court will not pass upon the constitutionality of a statute at the instance of one who has accepted its benefits. There is little need after all, for the ‘winner’ to challenge the Constitutionality of the law which aids them. (Cases and Controversies)

Whenever possible, statutes will be construed so as to avoid a constitutional issue (Statutory interpretation)

Other Limiting Doctrines

Doctrine of Strict Necessity: Federal courts will attempt to avoid a constitutional question if a case can be decided on nonconstitutional grounds (e.g. Hurd v. Hodge & restrictive covenants)

Doctrine of Saving Construction: before a court can determine the constitutionality of a statute it must determine the meaning of the statute (statutory construction). Where a challenged law is subject to different constructions,

judicial restraint demands that a court choose an interpretation that preserves the constitutionality of the law. (i.e. NLRB v. Jones, 1937)

“The cardinal principle of statutory construction is to save and not to destroy. We have repeatedly held that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the act.”

Presumption of Constitutionality

The most fundamental limitation on the exercise of judicial review is the presumption of constitutionality. Courts will presume a statute is valid unless it can be shown otherwise (the party attacking its validity bears the burden of this proof).

The Narrowness Doctrine: courts will avoid making broad pronouncements that might have unintended and / or unforseen consequences.

No New Principles Doctrine: courts will avoid inventing new principles of constitutionality when established principles will serve to dispose with the case.

Stare Decisis: Doctrine of precedent. Courts will follow precedent wherever possible.

The Severability Doctrine: federal courts will generally attempt to excise the unconstitutional elements of a statute while leaving the rest of the law intact.

Unconstitutional as Applied: Courts will not invalidate a statute “on its face” if it has constitutional applications in some circumstances.