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127 Winkler Killer Outline Essay

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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...

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