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Unformatted text preview: Supreme Court DecisionMaking Legal vs. Extra-Legal or Positivism vs. "Empiricism" Legal Positivism Judicial Formalism ExtraLegal Empiricism Judicial Realism Law as SelfEnforcing Actor Law as Objective Mechanical Jurisprudence Law as Vague Law as Subjective Law as in a "State of Becoming" Judge as Political Actor Difference between Normative (Should be) and Empirical (Is) Unconstrained by Institutional Rules Constrained by Context and Rules Traditional Legal Model Original Intention Based on contract theory What did the framers mean when said.... Religion Cases High Wall of SeparationJefferson's Letter Federal Funded Churches on Government/ Indian land Capital Punishment and Cruel and Unusual Punishment Legal Meaning of Words Literalism: Using the Four Corners of the Document New Textualism: Places a premium on the Constitution itself...objective principles found in the words Scalia...interpret the words as understood by the people...burn the flag "common meaning"...does not matter what intent of framers or legislative intent Delegation Cases What are the Historic meaning of the words Historic: Absolutism Pure Meaning of the Words : Justice Black...no means no and speech means speech works well with speech but what else ...do not burn flag and do not overthrow government Word try had a different meaning in 1787: Not value laden and is static Perceptions of Precedent: The Language of Law Common Law notion that Judges are engage in a process of finding the True Meaning of Law Assumes the Legitimacy of Past Decisions and the desire for stability Notion of Two Constitutions Precedent & Stare Decisis "C" "c" Gobitis (1940) & Barnette (1943) Aguilar v. Felton (1985) & Agostini v. Felton (1997) Roe v. Wade & Casey v. Planned Parenthood Bowers v. Hardwick & Lawrence v. Texas Precedent as Ad Hoc Balancing Balancing Tests: Speech: Religion: Clear and Present Danger Bad Tendency Test Preferred Position Balance Strict Scrutiny/Compelling interest Time Place and Manner Lemon Secular Purpose Neither aids nor inhibits No excessive entanglement Extra Legal Approaches Preferences: Attitudes, beliefs and valuesPolicy prefrences Justices as individual goal seekers Based on the notion of legal realism: Life Tenure No future careers Very little impact from the other branches of government ___x___y_________z________ Justices are human decisionmakers who have ideologies "views of the good world" and want them to become policy Composition Politics or Socialization or Both May have multiple dimensions Economic Civil Liberties Civil Rights Criminal Due Process Government v. Individual Individual v. Corp. Federalist MARBURY V. MADISON, 5 U. S. 137 (1803) In the order in which the Court has viewed this subject, the following questions have been considered and decided. 1. Has the applicant a right to the commission he demands? 2. If he has a right, and that right has been violated, do the laws of his country afford him a remedy? he answer to this question seems an obvious one. The appointment, being the sole act of the President, must be completely evidenced when it is shown that he has done everything to be performed by him. The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain, the King himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court. But the Third 3. If they do afford him a remedy, is it a mandamus issuing from this court? If it had been intended to leave it in the discretion of the Legislature to apportion the judicial power between the Supreme and inferior courts according to the will of that body, it would certainly have been useless to have proceeded further than to have defined the judicial power and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage is entirely without meaning if such is to be the construction. If Congress remains at liberty to give this court appellate jurisdiction where the Constitution has declared their jurisdiction shall be original, and original jurisdiction where the Constitution has declared it shall be appellate, the distribution of jurisdiction made in the Constitution, is form without substance. And So it Begins Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such If an act of the Legislature repugnant to the Constitution is void, does it, notwithstanding its invalidity, bind the Courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory, and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration. It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each. McCulloch v. Maryland Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which, like the Articles of Confederation, excludes incidental or implied powers and which requires that everything granted shall be expressly and minutely described. A Constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American Constitution is not only to be inferred from the nature of the instrument, but from the language. Why else were some of the limitations found in the 9th section of the 1st article introduced? It is also in some degree warranted by their having omitted to use any restrictive term which might prevent its receiving a fair and just interpretation. In considering this question, then, we must never forget that it is a Constitution we are expounding. And What Does this Mean? We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional. ...
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- Winter '08
- Civil Liberties