Essays /

127 Winkler Killer Outline Essay

Essay preview

I. Purposes of the Constitution
1) Create a National Government
a. Limited Gov’t of enumerated powers (powers not delegated to Fed Gov’t = reserved to states) b. Separation of Powers (legislative makes laws, executive enforces laws, judicial interprets laws) 2) Prohibits specific powers of state governments

a. Federal/state relations
b. State/State relations (Article IV)
3) Protect Individual Rights
a. Most important to the framers = property rights, criminal procedures b. Bill of Rights (1st 10 Amendments)
Scope of Constitution = limited
Barron v. Baltimore (1833): Bill of Rights only applies to Federal Gov’t, not to states (although the constitution places some limits on state powers, it is directed at the Federal Gov’t).

II. Judicial Review
A. Basis for Judicial Review
Marbury v. Madison (1803): Court affirms broad power of judicial review; establishes right of the courts to strike down acts of Congress or state governments if they are inconsistent w/the constitution (under Article III, §2).

B. Justification for Judicial Review
a) Original Intent: However, it is somewhat ambiguous whether framers intended courts to have judicial review b) The “Counter Majoritarian” Difficulty: we have unelected judges that can strike down and invalidate laws elected by the majority will (on this basis, is judicial review anti-democratic?) c) Marshall’s view (in Marbury): Judicial review is necessary for the preservation of democracy (b/c the constitution itself is a manifestation of democratic will); it properly checks the power of Congress; also protects against majorities usurping power and undermining the constitutional structure d) Constitution as Tradition or Culture not just a set of laws: e) Courts as the least dangerous branch of gov’t (Hamilton): we have much more to fear from the legislative than from the judicial branch (rationale: courts not subject to electoral pressures, no army or enforcement mechanism, not proactive – can’t initiate their own power, have interpretive and not law-making function…)

C. The Pitfalls of Judicial Review (all since overturned)
a) Dred Scott (1857): Slave suing for his freedom after “Missouri Compromise” that made northern slaves free. Court holds no diversity jx b/c Scott not a citizen; also rules compromise unconstitutional b/c deprives slave-owners of their property w/o due process (violates 5th amendment “takings clause”). a. Relevance: Taney court essentially trying to settle the “national controversy” about slavery b. Why wrongly decided? Political and moral disaster; further entrenched divisiveness/wrongness of slavery; also a legal disaster b/c struck down 1820 compromise (could have stuck to diversity jx) c. Policy Q – Should the courts play a role in settling Nat’l controversies? i. Pros: they are (theoretically) objective & not beholden to party lines; they are relatively bound by precedent (SC as having the “last word” on a given issue) ii. Cons: their decisions may not always be final; they may “stir up the pot” (e.g. Dred Scott, Roe v. Wade) and evoke more controversy; implementation problems; they may be bound by the constitution (which was likely wrong in a case like Dred Scott). b) Plessy v. Ferguson (1896): Court upholds LA “separate but equal” accommodations on RR cars. a. Brown (majority): courts role is not to settle nat’l disputes; prejudices cannot be overcome by legislation but must result from “natural affinities” b. Harlan (dissent): finds statute unconstitutional b/c excludes blacks; interferes w/personal freedoms; violates notion of “equality before the law”; allowing such laws to exist may “grow the seeds of race hate” (takes suspicious vs. deferential view of legislature). c. Plessy “test” for judicial review under the EPC: whether the statute is a “reasonable regulation” (in additional to being legal); look to liberty to act w/r/t established uses, customs, traditions… c) Lochner v. NY: Court struck down NY law limiting number of hours bakers could work (viewed as “meddlesome interfering w/individual rights). a. Importance: raised fears of judicial activism (prioritizing individual rights over new forms of collective organizing, etc.)

D. The Promise of Judicial Review – Brown v. Board of Education a) Lead up to Brown:
a. Plessy: holds that “separate but equal” is valid under the constitution b. Strauder v. West VA (1879): Court declares racial segregation in juries violates the EPC (decision based largely on stigma and psych. harm) c. Sibhuel: unconstitutional to have only white public law school (violated equality of treatment) d. Sweat v. Painter (1950): held that UT Law School’s refusal to admit black applicant was unconstitutional; separate facilities weren’t equal… e. Executive Branch Activities: integration of armed forces, Eisenhower request that the court overturn Plessy b) Bases of Brown Decision

a. Education as a right; plays a significant role in public life and the democratic process (denial of education creates a population not fully capable of participating in the democratic system) b. Goal of “buttressing” or helping to salvage democracy c. Psychological harm argument: state-sanctioned segregation has particularly harmful effect; court should play role in policing negative social stigmas/practices (distinguish from Plessy!) d. 14th Amendment basis: designed to prevent against legislation that created “castes” (e.g. can’t have equal protections when you have different classes of citizens!); however – EPC had no protections for women! c) Brown’s Limited Success: Implementation problems (no clear method, many jx’s never implemented), later phenomenons of “white flight” and re-seg; risk of Brown being overturned… d) Larger significance: cultural marker that we value the principle of racial equality e) Judicial Supremacy: Notion that the court’s are supreme in their interpretation of what the constitution means (e.g. as applied in Brown). a. Contemporary view: courts as not necessarily the supreme interpreters, but play an important role in engaging dialogue about what the constitution means and inviting other branches to participate

III. Constitutional Interpretation
A. Introduction to Interpretation
a. Marbury: Judicial Review as necessary to preserve the concept of democracy as advocated by the founders b. Twin Concerns underlying constitutional interpretation
i. Counter Majoritarian Difficulty (CMD): does the interpretive theory preserve democracy ii. Limiting Judicial Activism/Discretion: notion that law should have some basis in neutrality

B. Textualism: finds the answers to constitutional questions in the text itself (interpret exactly, or as closely as possible) a. “Plain Meaning” (Clause Bound) Textualism: asks what is the “plain meaning” of the constitution w/r/t a particular provision; how would a reasonable person in the framer’s position interpret this provision? i. Canons of Construction: can’t read one section in a way that obviates/eliminates another ii. Proponent arg (Thayer): democracy depends on court being limited to invalidating only those laws that clearly violate a constitutional provision (otherwise they shouldn’t step in!) iii. Problems w/ “plain meaning”: text may not be clear (Marbury); we’re stuck with the constitution as we find it; “open textured” provisions as hard to apply (e.g. what is “due process?”); plain meaning may have changed since the framer’s era…(textualist response = amend the constitution!) iv. ***NOTE*** “plain meaning” textualism as most important for our purposes! b. Holistic Interpretation: read the questioned provision in light of the whole document (all parts of the constitution should fit together in a coherent whole). i. Pros: can be a useful supplement to the plain-meaning rule ii. Application: death penalty (8th amendment doesn’t forbid provided due process under 5th) c. Structuralism: read the text in light of overall constitutional principles (democratic representation and accountability; federalism; separation of powers; individual liberty; nat’l market/citizenship…) i. Problem: principles may cut in different directions (or be so vague the could be construed variously)

C. Originalist (aka Original Intent/Strict Constructionism): The court should strike down legislation only if it violates the original understanding of the framers or an amendment (look to constitutional text, ratifying debates, constitutional conventions, federalist papers…); goal = limit judicial discretion! a. Original Understanding Approach: applies the constitution as it was understood at the time of ratification b. Original Purposes Approach: interprets constitution w/r/t “original purposes” it embodies Note on Brown: under Original Understanding, Brown likely wrong; under Original Purposes, Brown came out right. (see Bork Commentary; argues that Brown came out right but for wrong reasons – no need to change the law/constitution, could have resolved under original purpose of “broad promise of equality”) b. Originalism and the “twin concerns”

i. CMD: preserves democracy b/c going back to the time of the framers ii. Limits judicial activism b/c historical materials are limited (and bind the court!) c. Criticisms of Originalism: mostly rest on issue of changed/changing circumstances i. Counterfactual problem: constitution is very old; framers failed to anticipate/discuss many current issues (leads to speculative interpretations!) ii. Aggregation problems: constitution as an aggregation of individual views; establishing their “original intent” requires lots of inference making… iii. Levels of intent (“meta intent”) question: it may be easier to infer “general intent” than the framer’s “specific intent” about a given issue (would have been impossible to answer all specific Qs) iv. Who were the framers? White, male property owners!! (not democratic and no longer a majority!!) v. Reliability of Evidence problems: obscure sources sometimes claimed as indicative of orig. intent

D. Legal Process Theories: aim to create a basic theoretical model governing when judges should step in and interpret A) Representation Reinforcing
a. John Hart Ely: judge’s role is to protect the systems and procedures that preserve democracy (not the values of the people themselves at a given time); views the constitution as a process document whose goal is to protect the functioning of democratic self-government (anti-trust/regulatory approach to the political market) b. When should court’s step in to police malfunctions?

i. Discrimination against certain minorities (primarily discrete and insular) ii. Restrictions of core/fundamental rights (protected by the constitution) iii. When ins are keeping the outs “out” (violates democracy!) c. Ely and Brown: the political process leading to segregation was not democratic itself! (therefore can’t be trusted and is eligible to be struck down…) d. Public Choice page 146

e. How addresses the twin concerns:
i. CMD: court steps in to protect all people’s access/rights to the democratic system ii. Judicial Activism: limits conditions under which courts should step in (goal = protect procedures) f. application note: easier (and more effective) to apply in cases of formal violations of rights or systemic discrim. g. Carolene Products – FN 4: Suggests 2 levels/modes of judicial review (loosens restraint on Congress’ Powers) 1) Presumption of Constitutionality: begins w/trust in legis. (applied primarily to economic regulations) 2) Narrower scope (suspicious): applied where legislation on its face violates a constitutional right (e.g. freedom of speech, due process, legislation that targets “discrete and insular” minorities) h. Criticisms of Representation Reinforcing

i. Might not protect less visible minorities (e.g. gays, the poor) ii. May be too broad to apply effectively (e.g. how to improve the poor’s procedural access to democ.?) iii. Difficulty of determining what is substance and what is procedure B) Passive Virtues Approach: courts should step in only rarely to settle constitutional matters (defer to politics) a. Least Dangerous Branch (Bickel arg): ambiguity is inherent in the constitution (no way to avoid some subjective value choices by judges); therefore we should keep them from stepping in too often and undermining their own legitimacy b. When might judges step in? (see add’l notes on justiciability doctrines below) i. Cases that democratic processes have failed to answer (fought over/debated for some time) ii. Cases where other branches (e.g. the Executive) support a given judicial ruling c. Answer to twin concerns

i. CMD: less of an issue b/c judicial action strongly supported by the democratic process ii. Activism: minimizes problem by limiting opportunities for subjective interpretations d. Criticisms: being passive in some cases may not be virtuous (Plessy!); subjective values may still seep in… e. Justiciability Doctrines: determine when it is appropriate for the court to step in (Article III: restricts court rulings to “genuine cases and controversies” i. Ban on Advisory Opinions: restricts court from ruling on an issue/opinion before it occurs (require a live issue/debate; note: some state courts do allow advisory opinions) ii. The Standing Doctrine: a party must have a proper right to enter a court and make arguments iii. The Ripeness Doctrine: even w/r/t a “genuine case or controversy,” is the time ripe to rule on it? iv. Mootness Doctrine: the controversy must not be “over-ripe” (courts relief must be meaningful) v. Political Question Doctrine: constitution requires courts to steer clear of some controversies (some Qs left to other branches; e.g. war powers)

E. Living Constitutionalism
a. Overview: Courts construe the constitution to keep up with societal changes (evolving document) b. Application: not aligned w/any particular theory of interpretation; embraces the constitution as a “living document” to be interpreted w/r/t present-day values (fairly recent phenomenon!) c. Thurgood Marshall: constitution must be a living document; framers original view as inherently flawed & short-sighted; constitution should be celebrated for its life, not its birth. d. Brennan Approach: rejects originalism/process theories; constitution as not solely about process but also about substantive values (e.g. right to free speech, self expression); original document as conservative and politically charged; our main focus should be on protecting the value of human dignity (as inferred from 14th amendment, Bill of Rights, voting rights, etc.); this is and should be an evolving notion e. Brennan Response to CMD/Judicial Activism: Judge’s role is to impose “community’s interpr...

Read more

Keywords

-38 -60 ./patient /regulatory 1 10 10k 127 13th/14th 146 14th 14tha 18 1803 1819 1820 1824 1833 1857 1872 1873 1874 1879 1886 1887 1895 1896 1903 1905 1914 1918 1922 1923 1925 1928 1929 1937 1941 1942 1944 1950 1954 1960 1964 1965 1967 1970 1971 1972 1973 1974 1976 1978 1979 1981 1986 1987 1989 1990 1992 1994 1995 1996 1997 19th 1st 2 2.5 2000 2001 2002 2003 21 24 28th 2nd 3 30 302 32 38 3rd 4 4th 5 500 5th 5tha 6 60 70 8 8th 98 99 9th aa abil abl abolish abort abridg absenc absent absolutist accept access access/rights accommod accord account achiev aclu across act action activ activism/discretion activist actual ad ad-hoc adamson adapt adarand add addit address adjac admin admin/gov administr admit adopt advanc advent advers advertis advisori advoc affect affin affirm afford african african-american agenc aggreg agreement aid aiello aim aka akin alabama align alleg alley allow almost alon also alt altern although alway amber ambigu ame amend america american amicus among amorph anachron analog analysi analyz ancient animating/competing animus animus/bare anoth answer antenna anti anti-democrat anti-discrimin anti-sodomi anti-trust anticipate/discuss anyth appar appear appli applic applications/limitations apport approach appropri apt arbitrari arbitrary/stereotypical archaic architectur area aren arg argu arguabl argument aris arm armi around articl articul ask aspect assert assess assist associ assum atlanta attempt attenu aura author automat autonomi avail avenu avoid awar award away axe axi b b/c back back-alley backfir background backlash bad baird baker bakk balanc baltimor ban bank bar bare bargain barron base basebal baselin basi basic bass bbq beach bear bearing/rearing becom beer begin beholden being/has bell belong benefici benefit benign best beyond bickel bill bind biolog birth bite black board bodi bodili bofr bold boll boren bork born bottom bought bound bower bradwel branch breach breadth break brennan breyer brief brightest bring broad broad/archaic broadcast broader broadest brown btw buck build built bump burden busi business/commerce but/for buttress buy bypass c ca came can/can cannot canon cap capabl car cardozo care carhaart carolen carolina carri case casey cast cat categor categori caucasian causal cc celebr center central certain cgi cgis challeng champion chang changed/changing channel channels/instrumentalities charact character characterist charg charter check child children children/institution chines chinese-american choic choos choose/right chosen circumst cite citi citizen citizenship civil cl claim clara class classif classifi classroom claus clear cleari cleburn close closer closet club cmd cmd/judicial co coal coast coastal coher collect colleg combat come commentari commerc commerci commercial/economic commiss common communiti compani companion compel compens compet complet compon compromis con con-law concept concern conclud conclus concret condit conduct confirm congress congression congruenc connect connecticut conner connor consensu consent consequ conserv consid consider consist constitu constitut constrain constru construct construction consumpt contemporari continu contracept contractor contrari contrast control controversi conveni convent convinc core/fundamental corpor corpus cost could council count counter counter-majoritarian counterfactu counti coupl court cover coverag cra craig creat create/affirm creation creator credit crime crime/education crimin critic croson cruzan ct cultur current custom cut d dagenhart danger darbi date davi day dc deal death debat decid decis decisi declar deem deepli def default defer deferenti defin definit degre deleg demand democ democraci democrat demonstr deni denial departur depend depriv describ deserv design desir despit deter determin deterr develop devot dialogu didn die differ difficulti digniti dimens diminish diplomat direct disabl disadvantag disast discret discrim discrimin discriminatori discriminatorili discuss disparag dispel disproportion disput dissent distinct distinguish distress distribut district divers divisiveness/wrongness doctrin document doesn dolan doma door doubt dp dpc dr dr/patient draft dred dual due e e.c e.g earli earn easier econom economi economic/property economic/workplace ed educ effect effici eisenhow eisenstadt either elect elector eli elig elimin elit eman embarrass embed embodi embrac empir employ enact encompass end ends/means enforc engag english enjoin enough ensur enter enterpris entir entiti entrench enumer enviro environment envis epc equal era essenti establish estat etc ethnic euclid eugen evan even event ever everi everyth evid evidentiari eviscer evok evolv exact exactions/burdens exampl exceed except excess exclud execut exercis exist expand expans expect expens explain explicit export expound express extend extent extrem f face facial facil fact factor factual fail fair faith fall famili families/raise famous fan far fast fatal father favor fear fed fed/state feder federal/state federalist feeney ferguson fetal fetus figur filburn fill final find first fit flag flavor flaw flight floodplain flourish fmv fn fn4 focus follow food forbid forc form formal formula forth fortun fought found founder frame framer franci frankfurt free freedom frontiero fuck full fulli function fundament further futil futur g ga gain gave gay geduldig gender general generat genuin gestur get giannini gibbon ginsberg gitlow give given glucksberg go goal goesart goldberg gomillion gonzalez good goodrich gov govern government grand grant granvill gratz greater greatest green green-spac griswold ground group grow grown grutter guarante guidanc gun h habea hamilton hammer hand happi hard harder hardwick harlan harlan/souter/casey harm harm/detriment hart hasn hate health health/safety health/well-being health/wellness heart height heighten held help heritag hesit hide high higher highest hinder hippi hire histor histori history/tradition hitchcock hoc hodel hold holder holist holm home homosexu hook hopkin hostil hotel hour hous howev hr huge hugh human hwi hypothet id id- ide idea ident identifi ideolog igi ii iii illeg illegitim immigr immun immut impact impact/analysis imped impermiss implement impli implic implicit import impos imposs improv in inalien inc incident includ inclus inconsist incorpor incorporation/unwritten increas indic indirect individu industri inequ infer inferior influenc inform ing inher initi inkblot inn inner inquiri insidi instead institut instruct instrument insuffici insular insur int integr intend intent intent/strict inter inter-st interest interf interfer intermedi intermediate/heightened intern interpret interraci interst intim intimaci intra intra-st introduct invad invalid invas invent investig invidi invit invok involv iraqi iraqi-american irrelev isc isn isol issu issue/debate issue/opinion iv japanes jefferson john jone judg judici juri jurisdict jurisprud justic justici justif justifi jx k kansa katzenbach keep kelo kennedi key kick kick-in killer kirkendal knight know korematsu l la label labor lack land landmark landown languag larg larger last late late-term later laughlin laundri law law-mak law/constitution lawmakers/employers lawrenc laws/ordinances lawyer lay lead leader leagu least leav leeway left leg legaci legal legi legisl legislation/statutes legislative/administrative legislatur legitim legitimaci less let level levels/modes lgi liabl libertarian liberti life light like likewis limit line link list liter literaci littl live ll lo loan local lochner london lone long longer look loos loosen lopez loretto loss lot lotteri love luca m ma made madison mahon main major majoritarian make make-up male male-on malfunct man manag mandatori mani manifest manner manufactur map marburi marijuana marit marker market market/citizenship marri marriag marshal maryland mass massachusett materi matter may mcclung mcculloch md mean meaning means/ends meant mechan med meddlesom medic meet member men mental met meta method methodolog metro meyer mi michael might militari milk mine minim minimum minor mission missouri mistak misus mlb mo model modern mom monopoli month moot moral moratorium moreno morrison most motel mother motherhood motiv mount mov move much mugler muller murphi must myer mysteri narrow narrowli nat nation nativ natl natur nebraska necessari necessarili need needs/biological negat neither neutral never nevertheless new nguyen nine nlrb nollan non non-english non-enumer non-marri non-raci normal northern notabl note noth notif notion novel nt number numer ny o object obliter obscur obstacl obviates/eliminates obvious occup occur ocean offic offici often ogden ok oklahoma old olli omit one open opinion opportun oppos opposit option order ordin oregon organ organize/conduct orient orig origin originalism/process originalist originalist/textualist other otherwis out outcom outlaw outlin outsid over over-rip over/debated over/under overal overcom overextend overinclus overrul overturn overview owen owner p pa pack page pain painter palko palmer paper parent parenthood parham parish park parker part parti partial particip particular pass passiv past patern patient pedagog penalti penn pennsylvania penumbra peopl per perez perform perhap period permiss permit perpetu person personnel persuas pervers phenomenon philosophi physic physician pile pitfal place plain plain-mean plan play plenari plessi plumb plural plus po pocket poe point polic polici polit pool poor popul popular pose posit possess possessori possibl post post-griswold post-lochn post-ro post-viabl pot potenti powel power powerless practic pragmatic/institutional pre pre-dat pre-exist pre-viabl preced prefer pregnanc pregnancy-rel prejudic present present-day preserv pressur presumpt pretext prevail prevent previous price primari primarili principl prior priorit privaci privat privileg privileges/benefits proactiv problem procedur process procreat produc product production/manufacture program prohibit project promis promot prong proof prop proper properti property/enviro propon proport pros protect protest prove provid provis proxi psych psycholog public purchas pure purpos purpose/motive purposes/objectives pursuit push put q qs quarter quasi quasi-suspect question quintessenti quong quota race race-bas racial raich railway rais rang rape rapist rare rate ratif ratifi ration rational rb re re-seg reach read reaffirm reagan real realiti realti reason receiv recent recogn recognit reconstruct recov red redevelop redistrict reed reflect refug refus reg regard region regist registr regul regulatori rehnquist rehnquist/stevens reinforc reject relat relationship relev reli reliabl relief reluct remain remedi repeat replac report represent req reqt request requir reserv residenti resolv resourc respond respons rest restrain restraint restrict result resurg retain retard revenue/promote revers review rezon richardson richmond right rights-hold rights/sexual rigid ripe risk roadway robert roe role romer roof room roosevelt root rostker rough rr rule run s/fed sabotage/espionage safeguard safer safeti sale salvag same-sex sanction sanctum santa satisfi save say sc scalia scarc scheme school scope scott scrutini se seat section secur see seed seek seem seep seg segreg select self self-govern self-sovereignti sell separ sequenc seri serious servic set settl sever sex sex-neutr sexual sf shall shark sharp sherman ship short short-sight shouldn shreveport shut sibhuel side sierra sight signatori signific similar sinc singl situat skeptic skills/abilities skinner skirt slaughter slaughterhous slave slave-own slaveri slight slum small smoke social societ societi sodomi sole solut someth sometim somewhat sonoma sort sourc souter south sovereign sovereignti space spatial special specif specifi specul speech spell spend sphere spite split spousal sr ss st stamp stanc stand standard stare start stat state state-sanct state/state states/municipalities station status status/protection statut statutori statutorili stay std steer stenberg step stereotyp steril steven stick stigma stigmas/practices stigmas/stereotypes stigmat still stir stop store strauder strength strict strike strong strongest struck structur stuck su subcontractor subject subsequ substanc substant substanti substitut subterfug success suffic suffici sugar suggest suicid suit sum summari superior supplement suppli support suprem supremaci surpris surround surviv suspect suspici sweat switch system taho tailor taint take taken talk taney target tax team technic term termin test testimoni texa text textual textual/historical textualist textur thayer theoret theori therebi therefor thing think thoma though threat threatened/involved throughout thrown thurgood tide tie tier tigard tighter tilt time tix today togeth total toward tract trad trade trade/distribution tradit traffic trait transcend transpar transport travel treat treatment trend tri triadic trial tribe trim trimest troop troxel trpa true truli trump trust turn tv twin two tx type u uc ullman ultim um un un-enumer unbeliev unborn unconstitut under under-inclus undergrad undermin underrepres understand understood undertak undu unduli unelect uniqu univers unless unlik unmarri unpopular unsuccess unw unwant unwarr unwork unwritten up upbring upheld uphold upon us use usual usurp ut v va vagu valid valu various vast vawa vehicl version veteran vi via viabil viabl victim victori view vigor vii violat violenc virginia virtu virtuous visibl visit vmi voic voluntari vote voter vs w w/any w/cleburne w/combat w/commerce w/foreign w/individual w/interstate w/intimacy w/judicial w/living w/military w/o w/original w/personal w/provision w/public w/pure w/r/t w/the w/trust wade wage wait want war warrant warren washington waterway watkin wave way weak wealth wedlock week weigh welfar went weren west whatev wheat wherea whether white who/what whole whose wick wickard wide will william wing winkler within withstand wo wo/gomillion wolf woman womb women won word work work-week worker workplac worst worth would write write-up written wrong wrote ww2 wygant yardstick year yes yick zone