Constitutional Law

Non-Originalism

"Contrary view that courts should go beyond that set of references and enforce norms that cannot be discovered w/in the four corners of the document." - Permissible for the Court to interpret the Constitution to protect rights that are not expressly stated or clearly intended - Appropriate for the Court to decide that the word "liberty" includes a right of privacy and that reproductive freedom is an essential aspect of privacy People: Justice Brennan, Posner, Justice Jackson, Robert Bork, Prof. Ely

"Irony of Marbury

(1) Marshall presided over a legal proceeding that came about, in large part, b/c of his failure as Secretary of State and predecessor of James Madison, to deliver Marbury's commission (2) Even though the Court ultimately ruled that it lacked the jurisdiction to issue a writ of mandamus, Marshall did not hesitate to find a vested legal right at issue, for which mandamus was an appropriate legal remedy (3) Manner in which Marshall deliberately crafted a conflict b/ween Section 13 of Judiciary Act and Article III

Moderate Originalist

- "more concerned w/the adopters' general purposes than w/their intentions in a very precise sense." - Would argue that the court was correct in ordering school desegregation b/c it advances the general purpose of the equal protection clause even if it does not follow the framers' specific views

Values Served by Limiting Standing

1) Promotes separation of powers by restricting the availability of judicial review 2) Serves judicial efficiency by preventing a flood of lawsuits by those who have only an ideological stake in the outcome 3) Improves judicial decision making 4) Serves the value of fairness

Key points about Marbury v. Madison

1. Authority for judicial review of exec actions 2. Establishes that Article III is the ceiling of federal court jurisdiction 3. Authority for judicial reivew of legislative acts

Three factors that make constitutional interpretation complicated/produce many interpretative questions

1. Countless problems arise that the Constitution does not expressly consider 2. How should the Court decide the content and meaning of open-textured language? 3. What, if any, government justifications are sufficient to permit the government to interfere w/a fundamental right or to discriminate

Three Primary Limits on Federal Judicial Power

1. Interpretative limits - raises question of how Constitution should be interpreted; narrowly define judicial power or accord courts broad latitude in interpreting Constitution 2. Congressional limits - ability of Congress to restrict fed court jurisdiction 3. Justiciability limits - series of judicially created doctrines that limit the types of matters that fed courts can decide

3 Issues from Marbury v. Madison

Does Marbury Have a right to the commission? Yes, Do the Laws afford marbury a remedy? yes, Can the supreme court issue this rememdy? Is mandamus an appropriate remedy? No, yes

Prohibition of generalized grievances

Plaintiff may not sue as a taxpayer who shares a grievance in common w/all other taxpayers

Redressability

Plaintiff must allege that a favorable federal court decision is likely to redress the injury (Lyons v. Los Angeles)

Injury in fact

Plaintiff must allege that he or she has suffered or imminently will suffer an injury that is both "concrete and particularized" and "actual and imminent" (Schlesinger v. Reservists Committee to Stop the War) "Actual or imminent" = P must show they have personally suffered or will suffer some injury "Concrete and Particularized" = Personal harm; no generalized interest in law compliance

Causation

Plaintiff must allege that the injury is "fairly traceable" to the defendant's conduct (Lujan v. Defenders of Wildlife); (Lyons v. Los Angeles)

Originalists

- Amendment is the only legitimate means for constitutional evolution - Court should find a right to exist in the Constitution only if it is expressly stated in the text or was clearly intended by the framers; if its silent, its for the legislature to decide - Meaning of provision was set when it was adopted and that it can be changed solely by amendment People: Justice Scalia, Justice Thomas

Exceptions to prohibition of third-party standing

1) Close relationship or, 2) Third-party obstacles

Constitutional Standing Requirements (Jurisdictional)

1) Injury in Fact 2)Causation 3) Redressability

Justiciability Doctrines

1) Standing 2) Ripeness 3) Mootness 4) Political Question Doctrine

Requirements for third-party standing

1) Third-party they are seeking to represent is suffering actual injury; 2) Plaintiff can reasonably be expected to litigate the issues w/sufficient zeal; and, 3) Sufficient connection b/w the injured party and the plaintiff

Three main arguments for Non-Originalism

1. Desirable to have the Constitution evolve by interpretation and not only by amendment = necessary if the Constitution is to meet the needs of a changing society 2. There is not an unambiguous, knowable framers' intent that can be found to resolve constitutional questions = process of determining framers' intent is a process of interpretation affected by contemporary values 3. Approach Intended by the framers = following originalism requires that originalism be abandoned b/c the framers did not intend this method of interpretation

Arguments for Originalism

1. The very nature of interpreting a document requires that its meaning be limited to its specific text and its framers intentions 2. Approach is desirable to constrain the power of unelected judges in a democratic society

Prudential Standing Principles

Based on prudent judicial administration, not the Constitution, so Congress may override 1) Prohibition of third-party standing 2) Prohibition of generalized grievances 3) Zone of interest (not one of the "major" principles)

Strict Originalist

Court must follow the literal text and the specific intent of its drafters Likely to believe that the Court was wrong in ordering desegregation of public schools b/c the Congress that ratified the 14th amendment also approved the segregation of the DC public schools

Standing

Determination of whether a specific person is the property party to bring a matter to the court for adjudication

Justiciability

Determine which matters federal courts can hear and decide, and which must be dismissed

Marbury v. Madison (1803)

Established authority for judiciary to review constitutionality of executive and legislative acts

Scalia's interpretative approach

Focuses on finding the "original meaning" of constitutional provisions Original meaning = found in the historical practices and understandings of the time, not the views of the document's drafters

District of Columbia v. Heller (2008)

For the first time in US history, SCOTUS invalidated a law as violating the Second Amendment and held that it protects a right to have guns apart from militia service Issue = Does 2nd Amendment create... i. An individual right to own firearms unconnected to service in a milita ii. A militia-based individual right (right linked to be being part of a militia) iii. A collective right to the people to maintain effective state militias Holdings: Scalia (5-4, Roberts, Kennedy, Thomas, and Alito) held that: - (1) Second Amendment conferred an individual right to keep and bear arms; - (2) Statutes banning handgun possession in the home violated Second Amendment; and - (3) Statute containing prohibition against rendering any lawful firearm in the home operable for purpose of immediate self-defense violated Second Amendment. Underlying issue = how the Supreme court (or lower court, or a member of congress, or you) should decide the proper meaning of the Second Amendment

Most oft-cited quote from Marbury

It is emphatically the province and duty of the judicial dept. to say what the law is

Prohibition of third-party standing

Party generally may assert only his or her own rights and cannot raise the claim of third parties not before the court; this issue arises when an individual alleges they should be allowed to represent and advocate for the rights of others Rationale: - Third party is in the best position to bring the claim b/c they have more of an incentive

Cases regarding prohibition of third party standing

Singleton v. Wulff Gilmore v. Utah Griswold v. Connecticut NAACP v. Alabama Elk Grove Unified School District v. Newdow Hamdi v. Rumsfeld

Originalism vs. Non-Originalism

basically an argument over how the Constitution should evolve