Rodriguez[1].ConstitutionalLaw.Fall2005.doc

Rodriguez[1].ConstitutionalLaw.Fall2005.doc - CON LAW...

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CON LAW OUTLINE Opening Remarks 1. Two main questions of the course a.Who has the power to decide these constitutional decisions? i.Which branch? ii.Any branch? b.Who are “we the people”? i.The Framers? Majority of voters? Some other group? ii. Ackerman’s idea of constitutional moments during which people devote concentrated attention to fundamental issues of democratic govt (p.5, 28) 1. Founding 2. Civil War 3. New Deal 2.Why do we need a constitution? a. Helps define national identity. b. Text identifies common principles c. Limits power of govt by defining it 3.Why should a constitution be written down? a. Historical reasons – declaration to world of separate identity from England, US to be taken seriously, starting from scratch b. History of abuse of power – want to bind and confine govt. J UDICIAL R EVIEW AND C ONSTITUTIONAL I NTERPRETATION A. Modalities of Constitutional Interpretation a. Need theories of interpretation to give Constitution meaning b. Phillip Bobbitt identifies 6 modalities of interpretation i. Historical/originalism ii. Textual iii. Structural iv. Doctrinal v. Ethical vi. Prudential c. Historical interpretation i. Try to figure out what the Framers thought about issue ii. Advantages 1. Theoretically verifiable – can look at historical sources 2. Continuity – won’t change over time – fixed. 3. Stability – change can only come through constitutional amendment and not judicial interpretation 4. Way to constrain judges from making personal policy judgments iii. Disadvantages 1. Founders didn’t have unified visions
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a. They didn’t want notes from Constitutional convention – didn’t want people to use their intentions b. So judges must make personal judgments when choosing which historical interpretation to use 2. Circumstances change – Founders couldn’t have foreseen or even contemplated many issues today 3. Problem of dead hand of past d. Textual interpretation i. Only a starting point – can never use this alone ii. Advantages 1. Most verifiable – we can all see the text 2. Limited inquiry – constrains interpretation iii. Disadvantages 1. Meaning can’t come from text but from individual’s reading of it – will always be framed by reader 2. Provisions are usually general and can be read in different ways 3. Text is often abstract, vague and general e. Structural interpretation i. Infer relationships between structures set up in Constitution and make policy judgments ii. Form of argument:
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  • Fall '09
  • Steiker
  • Supreme Court of the United States

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