Interpreting the Constitution

GOV 30 Fall 2010

There is hardly a political question in the United States which does not sooner or later turn into a judicial one.

Alexis de Tocqueville

Federal and State Court Systems

Original- Jurisdiction cases

Requests for review

U.S.Supreme Court

80 Cases

State Court ofLast Resort

70,000

State IntermediateAppellate Courts of Appeals

168,000

U.S.DistrictCourts

314,000 Cases

StateTrial

Courts101,000,000 cases

U.S. CourtsOf Appeals

52,000 cases

“The judicial power shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”

- Constitution, Article 3, Section 1

Judiciary Act of 1789:

Set up an independent federal court system.

Gave Supreme Court original jurisidiction

in cases involving a writ of mandamus, such as ordering an appointment to take place.

Judicial Review

“The Constitution and the laws of the United States shall

be the Supreme law of the land, and the judges in every

state shall be bound thereby, any thing in the

Constitution or laws of any state to the contrary

notwithstanding.”

-Constitution, Supremacy Clause

Marbury v. Madison

John Marshall (1755-1835)Chief Justice of the United States from 1801 to 1835

Four Principles or Theories that have Guided Constitutional Interpretation

1.Deference to Congress - a law is presumed constitutional unless obviously not.

2.Original intent

3.Experiential

4.Plain meaning of the text.

“When we are dealing with words that also are a

constituent act, like the Constitution of the

United States, we must realize that it cost their

successors much sweat and blood to create a

nation. The case before us must be considered

in the light of our whole experience and not

merely in that of what was said a hundred years ago.”

-Oliver Wendell Holmes

Dred Scott decision

Fifth Amendment

No person shall be deprived of life, liberty or property, without due process of law.

The Missouri Compromise

Lochner v. New York

“It is settled by various decision of this court that state

constitutions and state laws may regulate life in many ways.

A Constitution is not intended to embody a particular

economic theory…It is made for people of fundamentally

differing views.”

- Oliver Wendell Holmes, Lochner v. New York

Only 159 judicial review of federal laws

"the Supreme Court is inevitably a part of the dominant . . . political leadership. . . . The main task of the Court is to confer legitimacy on [the government's] fundamental policies."

A recent study has identified changes in Supreme Court policy that parallel swings in public opinion justices still seem to pay "attention to what the public wants."

“th’ Supreme Court follows th’ ‘illiction returns.”

Bartendender Mr. Dooley

“The Constitution and the laws of the United States shall

be the Supreme law of the land, and the judges in every

state shall be bound thereby, any thing in the

Constitution or laws of any state to the contrary

notwithstanding.”

-Constitution, Supremacy Clause

“I do not think the United states would come to an end if

we lost our power to declare an act of Congress void. I do

think the Union would be imperiled if we could not make

that declaration as to the laws of the several states. For

one in my place sees how often a local policy prevails with

those who are not trained to national views.”

-Oliver Wendell Holmes

Judicial Review: The National-State distinction

Justification for Judicial Review of…..

A. Laws of Congress, Acts of Presidents

Maybe, or Maybe Not

B. State Laws and Gubernatorial Actions

Definitely.

Scalia on 60 Minutes

http://www.cbsnews.com/video/watch/?id=4448191n

Statutory Interpretation

1. Most court decisions intrerpret statutes, not the Constitution.

2. Less controversial because Congress (or state legislature) can pass new statute reversing court decision.

3. But very important because legislatures cannot easily pass legislation reversing existing laws (Minorities can block the change.)