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Unformatted text preview: Six Modalities of Constitutional Interpretation/Argument (from Constitutional Fate by Bobbit): 1. Precedent/doctrine 2. History 3. Text 4. Constitutional Structure 5. Prudential (Consequentialism) 6. Ethos/Ethical (appeals to the "kind of country we are", traditional values, etc.) 1. The Role of the Supreme Court in the Constitutional Scheme A Modern Day Look at Judicial Review United States v. Virginia CL 640-50 U.S. v. Virginia (1996) o Facts: • Women previously excluded from VMI • Challenge brought on EP clause of 14th Amendment Originally brought by U.S. in 1990 • 4th Circuit found in favor of U.S., and remanded to district court for a remedy • Original remedy was to create Virginia Women's Institute for Leadership (VWIL) at Mary Baldwin College 25-30 students, less Ph.D. at faculty, SAT scores 100 pts lower than VMI, no engineering, not adversarial, not military, etc. Ginsburg MO: o defenders of "gender-based government action must demonstrate an 'exceedingly persuasive justification' for that action…." • "The burden of justification is demanding and it rests entirely on the State." • State must show that the challenged classification: "serves important governmental objectives" AND that the discriminatory means employed must be " substantially related to the achievement of those objectives." • "Justification must be genuine, not hypothesized or invented post hoc in response to litigation." "A tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded." • "And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females." • This precedent doesn't forbid sexual classification. Although "inherent differences" are banned as a justification for race or national origin classifications, "physical differences b/t men and women, however, are enduring…." "But such classification may not be used, as they once were, to create or perpetrate the legal, social, and economic inferiority of women." o Sweatt precedent emphasized "those qualities which are incapable of objective measurement but which make for greatness in a school" (including reputation, alumni, prestige, etc.). • EP clause required Texas to admit African-Americans to the UT School of Law Rehnquist concurrence: o Old test was good. New test is too vagues. • Old test: ["important governmental objective"] + [classification must be "substantially related to achievement"] • New test: Adds that State must demonstrate an "exceedingly persuasive justification"...
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This note was uploaded on 04/17/2008 for the course LAW 534 taught by Professor Steiker during the Fall '07 term at University of Texas.
- Fall '07
- Constitutional Law