Fall 2005, Professor Johnson
Traditional Sources for Interpreting the Constitution
Other constitutional provisions
Structure of the constitution
When, if at all, may a judge depart?
Conflict in constitutional norms
When two provisions are conflicting
Over time, specific intent on narrow issues conflicts with larger intent
Segregation of schools and equal treatment under the law
Over time, conditions change and broad policy applies to additional situations.
Broadening the equal protection clause for women
Marbury v. Madison
The Judiciary Act of 1789 granted original jurisdiction
if the Supreme Court identifies a conflict
between a constitutional provision and a congressional statute, the Court has the authority
(and the duty) to declare the statute unconstitutional and to refuse to enforce it.
Constitution is paramount because it is written, either paramount or ordinary, the purpose of the
constitution, supremacy clause.
Judiciary should determine repugnance
because of institutional competence, oath, “arising under”
language (Art. III, § 2, cl. 1), otherwise courts must ignore the constitution, legislative history,
because of the weakness of arguments (1), (2), can be countermajoritarian,
and it is well-established.
asks who is bound. Everyone (
Cooper v. Aaron
), and how are they bound?
minimum: if court says death penalty
constitutional, you can’t contradict by saying it
, but you
don’t have to allow the death penalty. If Supreme Court says you
do something (not you
then you are bound.
The Scope of Judicial Review
Includes acts of Congress (
Review of state court judgments if a fed q is involved it can review cases where state laws violate the
constitution. It must be the
state’s highest court
Martin v. Hunter’s Lessee
State criminal cases if a fed q (
Cohens v. Virginia)
supremacy clause; 11th Amend doesn’t bar it bc the State
brought the action.
Limits on Judicial Review
, textually demonstrably committed to a coordinate branch: Powell v. McCormack
could determine if a member satisfied constitutional qualifications, but not what the qualifications