Constitutional Law Outline
Constitutional Law II
Professor Peter J. Smith
Fall 2011
Outline
Introduction
Background
1. Originalism v. Non-Originalism a. Originalism i. Characteristics 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 iv. Characteristics 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 i. Characteristics 1. Universal, non-contingent standards for right and wrong. Do not change over
Professor Peter J. Smith
Fall 2011
Outline
Introduction
Background
1. Originalism v. Non-Originalism a. Originalism i. Characteristics 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 iv. Characteristics 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 i. Characteristics 1. Universal, non-contingent standards for right and wrong. Do not change over
Cited: 5. Good News Club v. Milford (2001) p 6. Santa Fe Independent School District v. Doe (2000) r 7. Epperson v. Arkansas (1968) t 8. Edwards v. Aguillard (1987) v 9. Marsh v. Chambers (1983) y 10. Lynch v. Donnelly (1984) |