Intro to American Constitutional LawLecture One

Argumentative practice, Casebook Sectioning on Fridays, Thursday afternoons Practice engaged by a lot of people with a loose understanding of what the arguments are, but they engage in argument Challenge is how to understand the practice and themselves in an area where there are a lot of controversiesArgumentative, text-centered practice e.g., affirmative action

Text equal protection clause challengers would say that this disadvantages those without a boost However, are those who did not graduate/people without test scores also being denied that same privilege? Therefore, you cant just look at the language to determine History Article on September 3 from Scalia, stressing importance of history when making SCOTUS decisions In 1868 the clause actually enacted a number of statues providing benefits on a number of explicitly based legistlation Structure Able to infer things from the constitution Right to travel Not there in the Constitution, but the unity inferred in te constitution implies that the right to travel is there Precedent Bakke (1978), Grutter (2003), Gratz (2003), Brown v BOE Argument about the significance for a current case about cases that have been decided in the past Bakke and Bollinger SCOTUS explicitly upholds constitutionality of aff am, but states that universities if implementing affirmative action should have compelling government interest its ok for universities to have race play a factor but not the factor Demeaning of everybody to be reduced to just race Gratz SCOTUS states that race played too much of a factor Compare with BOE separate but equal was unconstitutional Was the animating principle of BOE that the govt should never classify anyone on the basis of race (if so aff am is wrong under BOE and previous cases should be reversed) Or was it segregated schooling that was inferior (creating a social stigma) Values What is the best way to interpret the history, BOE, the language, etc? You cannot keep values out of the discussion on how the constitution should be interpreted Practice Text centered, argumentative, assumed that judges will decide on constitutionality, how judges should decide is very controversial

How did we get here? Foundational History Articles of Confederation (1777-1781) Confederation of separate states, for the confederation to do anything, the agreement of 9/13 states was required Most people agreed by the 1780s that the current structure was not working Convention (1787) and illegality Meant to propose amendments to the Articles of Confederation not an brand new document First thing they decided was to create a new constitution They agreed that rather than submitting it to the states for new ratification, the constitution would be deliberated by conventions of the people People would not be bound by any current law, but would do what they thought would make sense The Constitution Structure Most of the constitution was about the structure of government and how it should run Most of t remains the same to the present day Bill of Rights Originally did not have a bill of rights James Madison et al gladly agreed to propose amendments including a Bill of Rights 17 more amendments The constitution provides for its own amendments to be made Has to be approved by 2/3 of both houses of congress Then ratified by of states Creates a situation where states with less than 10 percent of population can block an amendment in full Difficulty of amending Because of this, SCOTUS has assumed responsibility for modernizing the Constitution, which otherwise would have been dealt with by a constitutional amendment Social Security Case Study At the time it was hailed as a good idea People felt that it would be a bad precedent to amend something that would be perceived as very modern because its so hard to

Age, Change, and Adaptation Varieties of adaptation: saying yes and no SCOTUS is asked either to approve what political branches have done, or deny what they have done is constitutional Sometimes SCOTUS says no, Congress cant do that, so courts should be the ones driving change Gay marriage some people say it is more problematic when the courts are saying no to political democracy than vice versa Countermajoritarian difficulty Idea is that majorities want something but SCOUTUS says no how does SC justify Conservatives say this about Roe, liberals say this about Citizens United, gun control How has the SCOTUS justified its role Pre-commitment explanation? cf. Ulysses being strapped to the mast We decided we wanted to be bound by the Constitution Inter-temporal difficulty None of us bound ourselves to the Constitution, that was the old people who did stuff a while back who had no ideas of modern society However all of us at least accept that we are a part of this government and so we kinda precommited? Intra-temporal difficulty What is there is not a situation where we individually pledged ourselves, instead 9 people on the bench in Washington are doing that job for us What we have are people who do that jo of interpreting the Constitution for us, whose views some of us may view as repugnant

Stances towards current practice Enormous power within a narrow range of issues People argue about what the role of the Supreme Court actually be Critical Originalism Justice Scalia the meaning of the Constitution was fixed at the moment the Constitution was ratified. Judges dont have the rightful authority to do it. What is it? Intent, actual understanding, public, or semantic meaning? Arguments: rule of law, democracy, moral soundness Thats the only way we get the rule of law through originalism. Law gets its meaning from the time that it is brought into being. It establishes a stable platform on which democracy can work. This would give us, in their opinion, a better stability. Most are conservatives Critique of it is it too late to actually be originalist at this time? No one understood race discrimination, rights of women, minorities, etc at the time. Scalia says he may make an exception for things that have been decided stare decisisHowever, look at Roe v. Wade for his stance to see how BS that is Judicial restraint Some people hold it but almost no one holds it consistently How do judges put their own contentious interpretation of the constitution on a majority of Americans? Judge Learned Hand (see Dworkin) Any time it is arguable that something is constitutionally permissible, you should let the people decide or let the political process work Accepting Dworkin the Constitution uses moral sounding language see the rights in the Constitution therefore judges should give the best moral leading of the Constitution. What the court should be concerned with is understanding the language of the constitution in a moral sense, rather than how the founders expected it to be applied However judges should take into account precedent Minority rights Law and Argument A characteristic of American constitutional law is the intermingling of theoretical arguments concerning the judicial role with case specific arguments about the rights that people have in light of Text History/original meaning Constitutional structure Precedent Values