And legal theory
Two Main Constitutional Claims
“Due Process” – Vth, XIvth Amendments
“Equal Protection” – XIVth Amendment
“Law of the Land” – Art. VI
Due Process
Art. 39 Magna Charta, “Law of the Land”
“Law of the Land” – Art. VI, U.S. Const.
Amendment XIV
Due process is the government power versus the private person‘s rights
It includes rights of self defence against the government: trial by jury, in public, knowing one‘s accusers, of what one is accused, no torture etc. Right to notice and hearing.
Denial of political rights like the right to vote could also be a violation of the law of the land.
Proportionality is used here.
Equal Protection
Procedural formal equality.
Not substantive equality.
Proportionality is used here too!<
Notice that both Due Process and Equal Protection are protecting the individual against state action – not against private action.
Currently there is no third party effect doctrine in the U.S. That will change.
Currently there is color of law.
Or finding state action in e.g. the use of the courts.
Justiciability
A group of judge-made doctrines that define and limit the powers of Article III courts.
Definitional: The scope of the power vested in those courts by Article III.
Structural: Limitations designed to ensure that the federal judiciary does not improperly interfere with the constitutional prerogatives of a coordinate branch or of the states.
The Case or Controversy Requirement
A definitional limit on judicial power premised on the text of Article III.
Note: Subject Matter Jurisdiction
A structural limit on judicial power designed to avoid unnecessary interference with the political branches.
Definition of a case or controversy:
Actual dispute involving the legal relations of adverse parties for which the judiciary can provide some type of effective relief.
The Case or Controversy Requirement
Three Doctrines:
Standing – Who
Ripeness/Mootness – When
Political Questions – What
Standing
Theory
Federal courts can exercise judicial power only in cases and controversies of an “adversarial nature”
To be adversarial, litigants must be in particular relationship with one another such that they have personal stake in outcome of case
Judicial power is the power to decide cases. If a federal court is unable to give effective relief, then it is not deciding a case, but merely rendering an advisory opinion.
Standing Elements
Discrete and Palpable Injury
Caused by Defendant’s (alleged) Action
Remediable by Court
Plaintiff’s personal rights at stake
Standing
Organizational Standing
Third Party Standing
Generalized Grievances
Taxpayer & Citizen Standing
Ripeness
(When – Too Soon)
Claimed injury contingent on future events
E.g., seeking injunction against a threatened search
Factors:
Probability that the predicted harm will occur
Hardship to the parties w/o immediate review
Fitness of the record
Mootness
(When – Too Late)
Case must remain “live” during the entire litigation process.
The elements of standing must remain satisfied during the entire litigation.
Critical factors:
Change in law
Change in facts
Mootness: “Exceptions”
Collateral Consequences
Classic Example: Criminal Conviction
Capable of Repetition Yet Evading Review
Short duration
Capable of repetition as to this plaintiff
Classic Example: Abortion Challenge
Voluntary Cessation
Class Actions
Political Question
What is it?
An issue pertaining to the exercise of constitutional power by either the executive or legislative branch that is not reviewable by the Supreme Court.
Political Questions
Primary Considerations:
Does the question implicate the separation of powers?
Does the Constitution commit resolution of this issue to either the President or Congress?
Prudential Concerns
Court decides whether a PQ is presented.
Political Questions
A “textually demonstrable constitutional commitment of the issue to a coordinate political branch.”
A “lack of judicially discoverable standards.”
The “impossibility for a court independent resolution without expressing a lack of respect for a coordinate branch of the government.”
The “impossibility of deciding the issue without an initial policy decision, which is beyond the discretion of the court.”
An “unusual need for unquestioning adherence to a political decision.”
The “potentiality of embarrassment from multifarious pronouncements by various departments on one question
Formalism (Begriffsjurisprudenz)
There is a correct outcome to cases which can be deduced (Ableitung) from legislation and or principles (concepts=Begriffe) and or other cases.
The judge is like a machine for pronouncing the law.
Dura lex, sed lex.
Legal Realism (Freirechtslehre)
Formal law (literalism) leads to substantive justice
Law reflect class prejudice
Law reflects subjective psychology not objective truth
“Law” is the mask of power
Rather than seeking to conform cases to law courts should aim to obtain the substantively fair outcome by focussing on standards rather than rules and outcomes rather than processes
Legal Process Interest Balancing (Interessenjurisprudenz)
Balancing of competing interests
Realism: Interest balancing (Interessenabwägung)
Tried to combine formalism and realism
Not too succesful – because formalism and realism say antithetical things about law
Conceptual jurisprudence tends toward Originalism and Literal interpretation.
Legal realism tends toward interpretivism (teleological interpretation – Zweckmäßigkeit)
Literalism
Textualism: the proper judicial function ins interpretation as opposed to law-making.
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 Scalia.
Originalism
Originalism: Judges should attempt to determine the original “meaning” or “intent” of the Founders (or Framers).
Important distinction
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 ascertained
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.”
Activism vs. Restraint
Activism v. Restraint: opposing philosophies of judicial power
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 policy-making process.
“it is far more important to be respectful to the Constitution than to a coordinate branch of government” William O. Douglas