Professor Peter J. Smith
1. Originalism v. Non-Originalism
1. Historical inquiry.
2. Original meaning of Constitution; intent of Framers; application by first Congress is authoritative. ii. Scalia is a big proponent.
3. Liberals, e.g., Stevens, occasionally employ originalist methods. iii. Criticisms
4. Original meaning/intent/application of Constitution/Framers is subject to differing interpretations. See DC v. Heller (Scalia and Stevens reach different conclusions using originalist methods.). b. Non-Originalism
5. Original meaning, etc. is not singularly authoritative. c. Originalism v. Non-Originalism is biggest constitutional law debate of past 40 years. 2. Structure v. Rights
d. Cases about individual rights are expressly or implicitly about structure or separation of powers. E.g., incorporation of 2nd Amendment individual right to bear arms to states limits what state governments may do. 3. Judicial Role & Counter-Majoritarian
e. Court invalidating legislatively enacted laws, e.g., the DC handgun ban, NY baker law in Lochner, expresses the counter-majoritarian nature of judicial review. 4. Countervailing Precedent
f. Adhere to precedent and cite stare decisis.
g. Overrule earlier decision.
v. Because it is so hard for Congress to amend the Constitution and negate an erroneous Supreme Court decision, there is a strong argument that the Court should overrule earlier erroneous decisions. After all, this is easier than ratifying amendments.
Individual Rights & the States
1. Natural Law v. Positive Law
a. Natural Law
1. Universal, non-contingent standards for right and wrong. Do not change over time. 2. People have certain rights inherently, i.e., prior to any laws or the Constitution. ii. Criticisms
3. Values and norms evolve.
4. Must trust judicial articulation of natural law. b. Positive Law
5. Law enacted through defined law-making process. 6. Limits judges to applying judgments of law-makers, not their own and thereby avoiding judicial legislation. 7. Marbury v. Madison stated that the Supreme Court can invalidate state law that conflicts with the positive law in the Constitution. iv. Criticisms
8. Constitution/laws may be ambiguous. Interpretation requires reference to other standards, e.g., natural law. 9. Must trust judgment of legislatures.
c. Court rarely chooses between natural and positive law. Distinction is rarely stark. 2. Early History
d. Barron v. Baltimore (1833)
v. Facts – Baltimore drained harbor, making the water in his wharf too shallow to be used by most vessels. Claimed a 5th Amendment taking of property without just compensation. vi. Holding (Marshall)
10. Baltimore argues that the Takings Clause applies only to actions of the federal government, not state governments, and Court agrees. a. Nature of Constitution – States established their own constitutions to limit their governmental actions. Federal constitution created the federal government and limits only the federal government. b. Text – Art. I, § 10 lists limitations on state power. By negative implication, one could argue that the Takings Clause does not apply to the states because this is not stated expressly, as in Art. I, § 10. c. History – Members of state ratifying conventions were concerned with limiting the federal government in ratifying the Bill of Rights. They were not concerned with excessive state power. 11....