THE BASICS II
Rule of Law
Constitution is the “Supreme Law of the Land”
Separation of Powers
The Distributive Articles: I, II, & III
Checks and Balances
Marbury v. Madison
Dual vs. Cooperative Federalism
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
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
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
Ancient common law device persons use to challenge the
legality of an arrest or imprisonment (recognized by
Interpreting the Constitution
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
Living Constitution: Meaning of constitution must evolve to fit
the spirit of the age
Interpretivism (textualism): the proper judicial
function ins interpretation as opposed to law-
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
Originalism: Judges should attempt to determine the original
“meaning” or “intent” of the Founders (or Framers).
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
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?
Activism vs. Restraint
Activism v. Restraint: opposing philosophies of judicial
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
“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
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
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
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
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
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
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.