History of the Constitution
Why is the constitution special (3 reasons)?
1. It is difficult to change - it requires a supermajority at state and federal levels.
2. It contains general and abstract terms - this allows the constitution to endure time because it can be adopted differently.
3. It is the highest law in the government.
What is Interpretivism / Originalism?
It is an interpretive approach that focuses on the intent of the framers by the text clearly written in the constitution or expressed intent. The "four corners approach".
What is judicial review?
The power of the judicial branch to review the acts from other branches of government for constitutionality.
What is the Supremacy Clause?
The constitution is the supreme law of the land. State laws are only valid if they are made in pursuant with the constitution.
What do the articles of the constitution do?
Article 1 creates the legislature power and vests it in Congress.
Article 2 places the executive power in the president.
Article 3 provides the judicial power of the US.
What is non-interpretivism / nonoriginalism?
A view that the text is something that is supposed to evolve over time to enforce norms that are not in the document. This is "living constitutionalism", and the framers would have wanted the constitution to grow with society and to be looked at in the light of today.
Arguments for Judicial Review and the Dangers of Judicial Review (3 of each).
Arguments for: 1) The supreme court judges are insulated from outside influence because they are not elected and they serve life terms allowing them to be more neutral. 2) Without judicial review, there are less checks and balances and there can be chaos in the government. 3) The judicial branch is the least dangerous branch because it does not control the military or finances.
Dangers: 1) If the court is wrong, their decisions are very hard to undue. 2) There is a counter-majoritarian issue where the unelected court can act against the will of the elected officials. 3) Fear of judicial tyranny where no-one can check the checkers.
The best way to structure an exam answer
Background of the Issue
Word of the text (the constitution)
Conclusion
Describe all information for the field discussed
Conclusion
Why was the constitution created?
Out of a fear of an overly strong government (like the British Monarchy), it was created to protect individuals from the government and establish a separation of powers.
Strict originalists, moderate originalists and preferential interpretivists.
Strict Originalists (Constructionism): mostly look into text, history and tradition. They have the most concrete view of intent and will only take action if the intent is text or intent clear. If the intent is not clear, they will end the analysis.
Moderate Originalists: They inquire beyond the text, history and tradition. They have a more abstract view of intent and they are willing to act if the text or intent is less clear. They are more concerned with adopters general purpose. If the intent is not sufficiently clear, they will end the analysis.
Preferential Interpretivists: Start with moderate originalism, and then move to non-originalism methods, then if all that fails, they are willing to use interpretivist methods. If the intent is not sufficiently clear, they will continue and go beyond interpretivism.
Describe approach 1 of Judicial Review (weak).
All branches of the government are co-equal and all can interpret the constitution. Branches can disregard what other branches do. The court can decide for itself, and if the only action to be taken is within the judiciary, it has the final say. If it is not, then the court can attempt to persuade other branches (Marbury p. 6).
What is Expressio Unius Exclusio Alterius?
When one or more things of a class are expressly mentioned, others of the same class are excluded.
Ex: "No cats, dogs, birds or reptiles" in a leasing agreement, will probably also include pigs, rabbits, and and fish.
What is the difference between Formalism and Functionalism?
Formalists believe that the lines of separation between the state government, federal government are bright lines and should never be crossed.
Functionalists believe that the lines of separation are not always clear and that is okay. There doesn't need to be a strict separation so long as the purpose of the separation of powers is being upheld.
What ways are there to determine the intent of the framers?
Look at the subjective intent of the founders (Purposivism). Look into prior decisions to see what the words meant on the day it was passed. Look into what the framers communicated through express intent, public meaning of words at the time, and the levels of abstraction in the framing.
Describe approach 2 fo judicial review (moderate).
Each branch can interpret the constitution within its own sphere, but the court can order other branches to act or not act in an attempt to uphold the constitution because the court has the power to do so. Seen in Nixon 1974 (p. 2) where the court ordered the president to do something.
A Method / Map of Doctrinal Options for Judicial Review
1) Create a list of all the possible doctrinal options and possibilities (List all logical options by level of power). 2) Look to see which one(s) the courts have chosen or eliminated 3) Consider the policy implications for each 4) See where there is ambiguity in the decision or discussion.
How was the constitution created (initial creation and implementation)?
The constitution was originally the Articles of Confederation which created a weak and ineffectual government. The ratification process included 85 essays written by Hamilton, Madison, and Jay, and after all 13 states accepted it, it was ratified in 1970. The Bill of Rights was not included, but when it was proposed, the southern states were not allowed to be re-admitted to the union until they ratified the 14th amendment.
Arguments for and against Interpretivism / Originalism (3 for and 4 against).
For: 1) Reduces judicial discretion because you focus on strict language 2) the only way to evolve the constitution is through amendments, it was set when it was adopted. 3) It is an attempt to constrain the power of unelected judges in a democratic society.
Against: 1) It is unclear if it really fulfills it's purpose (does it really limit judicial discretion), 2) the constitution needs to evolve to meet the needs of a changing society, 3) there was limited representation among the framers and they are out of touch with modern society, 4) it is extremely difficult to know the framers intent.
Describe approach 3 of judicial review (Strong).
The judiciary is the authoritative and final interpreter for all the spheres of the government, the other branches cannot interpret the constitution. No one really takes this approach seriously because all members of congress take an oath to uphold the constitution.
What makes something a political question?
If the law does not provide discretion, it is not a political question.
ex:
“You can do this, but you don’t have to” = PQ
“you must do this” ≠ PQ