Relying on the intentions of the framers and ratifiers.
Consent as the source of its authority.
Easy to shift from what was actually consented to, to what should have been consented to.
Some parts of the C are written abstractly, allowing you to interpret them without departing from the intentionalist modality
Textual
Looking to the meaning of the words alone, as they would appear to a man on the street.
Structural
Inferring rules from the relationships that the C mandates among the structures (of government) it sets up
Doctrinal
Applying rules generated by precedent
Authority of law. Predictability & stability, stare decisis
Ethical (Responsive)
Deriving rules from those moral commitments of the American ethos that are reflected in the C.
Idea of the living C.
Not as much authority behind it. Is the SC really the best arbiter of what is the ethos of the nation.
Counter-majoritarian difficulty- unelected officials making decisions about what the electorate wants.
Prudential
Seeking to balance the costs and effects of a particular rule.
Consequentialist form of reasoning.
If the decision is so perverse/destructive, the C doesn’t require it to self-destruct.
Don’t order things that you know won’t stand or won’t be followed.
Otherwise, Court’s legitimacy comes into question.
Post’s three modalities (comparable to 3 of Bobbitt’s)
“Doctrinalinterpretation, which follows the principle of stare decisis, invokes the authority of the C as law. Historical interpretation, which implements an original act of will, is validated by the authority of the C as consent (Burger). Responsive interpretation, which engages in an ongoing process of national self-definition, appeals to the authority of the C as, for lack of a better word, ethos.”
Historical Modality (Authority of Consent) → Doctrinal Modality (Authority of Law) → Responsive Modality (No Authority) → (back around)
Marsh v. Chambers (1983) (supp) [Burger]
Does opening the NE legislature with prayer by a paid chaplain violate the Establishment Clause (1st)?
Held: Not a violation. SC still opens with “God save this Honorable Court”
Lemon Test- if violates any prong unconst. Very strict- invoke sparingly for fear it will be overturned. But if it’s the test, we should just be picking and choosing when we use it.
(1) the statute must have a secular legislative purpose
(2) its principal or primary effect must be one that neither advances nor inhibits religion
Court looks at history- Intentionalist Argument- founders wrote the clause, but then were paying chaplains at the same time- would be contradicting themselves.
Look not just to framers’ intent, but ratifiers intent.
Fails to look at subsequent 200 yrs.
Judicial Review
Marbury v. Madison (1803) pg 108 [Marshall] one week before Stuart
History- power struggle between Federalists and Jeffersonians. Jefferson won the vote- first time in history an incumbent political party had been ousted by popular vote, unsure how to transition. Federalists created “inferior courts” on way out, filled them with Federalist judges.
Marbury had been appointed justice of the peace by Adams, commission had been signed, but not delivered. Jefferson ordered Madison, Sec of State, not to deliver it.
Held:
On the facts and the law, Marbury is entitled to the commission
Commission was valid upon the signing
A judicial remedy wouldn’t improperly interfere with the executives const discretion
A mandamus is the appropriate remedy, Madison can’t assert sovereign immunity
Says § 13 of the Judiciary Act authorizes the mandamus.
But then says § 13 is Unconst.
Stands for:
Constitution trumps legislative acts
The Court has the power to invalidate a federal law on Const grounds.
Political question doctrine- what one sovereign can give, the other can take away. Political and not reviewable.
Could have also avoided the conflict between the C and the Judiciary Act
Went out of their way to create the conflict.
Judiciary Act had created three categories of jurisdiction
Exclusive jurisdiction: Only the SC can hear it.
Original jurisdiction: You can bring it first to the SC.
Appellate jurisdiction: You can only bring it to the SC on appeal
Stuart v. Laird (1803) pg 104
Argued that the SC Justices could not sit as circuit judges without commissions and that the repeal of the circuit judgeship (I think just eliminated them all) was unconst under Article III, which granted life tenure.
Court acquiesced to the Jeffersonian purge of circuit court judges.
State of Law today
Original jurisdiction can neither be expanded nor diminished
In a democracy, minorities lose by definition. Why allow non-elected people to strike down majority opinion?
Sometimes we distrust democracy
May emerge that it’s the same people always on the losing side- result of animus? The loser wasn’t really allowed to be part of the decision making process.
But isn’t the Senate another example of the counter-maj difficulty?