1. Supreme Court is “LEAST DANGEROUS BRANCH”. Why? no power of the purse (like Congress); no power of sword (like President).
2. Because no power of sword or purse, MUST insulate judges from attacks by other branches, therefore life terms for federal judges.
3. MUST have jud. rev. because Constitution is supreme over Congress, so if conflict, Court MUST say Constitution (social contract) overrides.
i. John Hart Ely and Cass Sunstein—OK when court upholds democratic values (e.g. equality, voting rights, etc.)if court is promoting/encouraging/protecting the democratic process itself, then it’s not undemocratic.
ii. Ronald Dworkin, Richard Epstein: Court was intended to protect minority groups against majority tyranny;
i.e. the Court was intended to be “antidemocratic”; to be a check against “democratic excess.”
iii. Raoul Berger, Robert Bork, Richard Ackerman: Upholding Constitution IS democratic. Constitution was made by sovereign people—a supermajority of ratifying states in the ratifying conventions—so legislatures like Congress are below the people and hence below the Constitutoin, so court upholding Constitution IS democratic.
2. Incomplete evidence?. Didn’t have recording devices, so we don’t have verbatim transcripts of most speeches, it’s merely summaries. For example, by one estimate, Madison recorded only at most 8-10% of debate in the constitutional convention. Was he biased? What was left out?
3. Biased evidence? Madison or other speech transcribers—did their subconscious biases for or against positions come out when they summarized speeches? Some evidence seems to show Madison intentionally altered his convention notes later to reflect his changed views about the constitution. Or did some recorders perhaps even intentionally distort positions to make them weaker or leave them out so they’re nonexistent? The Pennsylvania and Maryland debates were recorded by a staunch federalist who was paid to delete all the anti-federalist speeches.
4. Stated or Actual Intent (publicly stated intent v. privately stated secret intent)? The evidence seems to show that Madison and Hamilton in the Federalist papers made arguments to get the Constitution approved that they themselves disagreed with. For example, both wanted broad powers of the national legislature and thought the constitution granted broad powers, but publicly argued the constitution didn’t mean that and it would never happen… So did the ratifiers believe those arguments?
5. Ideal or compromised intent (what they wanted or what they agreed to)? Many votes for ratification were based on political compromise/ bargaining—most voted for things they didn’t want. A framer or ratifier wanted one thing, but settled for another, and many provisions were intentionally left vague and open-ended to achieve majority support. For example, Hamilton wanted the president to have the power of a king but was willing to settle for the strongest executive he could get. So do we give his desire any weight? Others may have been against certain elements of the constitution but voted anyway in order to get what they wanted passed. For example, many northern state delegates opposed slavery, but left it in constitution to get the support of southern state delegates for the constitution as a whole. Do we go by what the northern delegates wanted or by what they finally approved?
6. Intent at which step? The person who wrote the actual text (Madison) the committee who modified his draft? the entire constitutional convention who approved that text be sent to the States for ratification (the convention delegates) or the state convention delegates who ratified the text? What Madison intended it is maybe quite different than what the ratifiers intended (and this would be a much larger group).
7. Which supporter’s intent? Supporters differed in intent—For example, some supporters of First Amendment Establishment Clause thought it would only prohibit a national religion, others thought it would prohibit favoring one religion over another, others thought it would prohibit favoring religion over nonreligion. Some thought it would allow government financial aid to religion, others didn’t. So, do you go by the majority view? But how do you determine what that was?. Can’t poll them, and just because more speeches or writings on one side doesn’t mean that side had the majority. Could be a small but active minority, just like often occurs today. (e.g pornography on the internet—a space alien interpreting our culture from the internet would think the dominant majority lifestyle of our culture is constant extreme sexual indulgence.)
8. General or specific intent? Do you look at the intended general principle or how it was intended that the principle apply in specific situations. For example, the 14th Amendment guarantees the equal protection of the laws, yet there were racially segregated schools in Washington D.C., and no one seemed to think at the time that this was improper under the 14th Amendment. Also, specific application wouldn’t even apply to some situations today—e.g. first amendment would not apply to regulation of TV, radio, or internet.
9. A lack of any intent? Evidence shows that many framers and ratifiers simply went along with sections of the constitution not being sure what it meant, or not having time to determine it’s meaning, leaving it’s interpretation and meaning to be determined in the future. In fact, Federalists often intentionally avoided any specifics during the ratification debates so that those specifics couldn’t then be attacked and jeopardize the constitution’s ratification. Mr. Ghorum said on July 16 during the convention, in response to a charge by Mr. Butler that “The vagueness of the terms rendered it impossible for any precise judgment to be formed.” Mr. Ghorum replied: “The vagueness of the terms constitutes the propriety of them. We are now establishing general principles, to be extended hereafter into details which will be precise & explicit.” Senator Howard, author of the 14th Amendment, said “I don’t know what it means.” (…)
10. Internal inconsistency: Intent was to change with the times… Ironically, on this point there is a lot of historical evidence : there’s a good body of evidence that the original intent was that courts should not look to original intent, but that constitution should have evolving meaning. Edmund Randolph, a member of the Committee on Detail, provided written guidelines to guide the committee’s drafting process. One of the goals was “1. To insert essential principles only, lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to time and events.” also; Madison’s letter to Thomas Ritchie: “As a guide in expanding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character.”
1. “Plain Meaning” Not ALL constitutional or statutory provisions are vague. Some involve “BRIGHT-LINE rules” or “Bright-line distinction” e.g. Constitution: must be 35 to be president. Statute: must be 21 to drink alcohol; or response to lawsuit must be filed in 30 days.
2. Determine the “plain meaning”
A. Expressio unius est exclusio alterius. The expression of one thing is the exclusion of another.
City Ordinance: Residents may keep dogs or cats as household pets. Pot-bellied pig?
B. Ejusdem generis. Of the same kind/class/type.
City Ordinance: Residents may keep dogs, cats, or other household pets.Pot-bellied pig?
C. “May” = permissible; “shall” = required.
D. Don’t interpret a statute so as to render one of its provisions meaningless (as if it doesn’t exist).
2. “Attitudes” = personal policy preferences, such as liberal v. conservative
3. “Roles” = individual judge’s belief whether a judge should follow the law (positivist) or seek justice (natural law).
4. Institutions: characteristics/ features/ mechanisms of judicial institution–e.g. how are judges selected, retained, term length, etc.
5. executives—e.g. Solicitor General (arguing for Attorney General): wins more often than not, and more often than other litigants.
6. legislatures: Supreme Court Generally agrees with/supports policy positions of Congress and President 2/3 of time.
7. Small-group dynamics—other justices (persuasion, bargaining, threats, norm of unanimity).
8. Interest groups
9. Public opinion—mixed evidence.
Claims (asserting injury rather than fearing confrontation, accepting, abandoning, forgiving, or resorting to self-help (retaliation)): 718
Disputes (disagreement about injury (which might be settled by negotiation or formal ADR): 449
Lawyers (hire attorney to legally represent you): 103
Court Filings (seeking official judicial resolution of injury): 50