Constitutional & Statutory Interpretation

Question 1

What is “originalism”?

Answer 1

Broadly speaking, “originalism” is a judicial concept that holds that the Constitution or a statute is to be understood as it was at the time it was ratified.

Question 2

What role do the text and original meaning of the constitution play when interpreting the Constitution?

Answer 2

Originalism has been recognized by the Supreme Court, and the Court has described the instances in which it applies. As the Court recently held in New York State Rifle & Pistol Association, Inc. v. Bruen, analyzing the 2nd Amendment is one area in which the Supreme Court has found that originalism applies. The Confrontation Clause found in the 6th Amendment is another.

In those areas that the Supreme Court or 9th Circuit has held that originalism applies, I would be bound to apply originalism as a District Judge, if confirmed.

Question 3

What role should originalism play in interpreting the constitution?

Answer 3

Originalism has been recognized by the Supreme Court, and the Court has described the instances in which it applies. As the Court recently held in New York State Rifle & Pistol Association, Inc. v. Bruen, analyzing the 2nd Amendment is one area in which the Supreme Court has found that originalism applies. The Confrontation Clause found in the 6th Amendment is another. In those areas that the Circuit or the Supreme Court has held that originalism applies, I would be bound to apply originalism as a District Judge, if confirmed.

Question 4

Are you a “textualist”?

Answer 4

I hate to label myself since judicial scholars have defined this term differently. As a judge, my approach would be to consider the the text of a statute or the constitution and precedent interpreting the same. The text and precedent are what I would be most loyal to.

Question 5

What sources would you consult on a case that involved interpreting a federal statute?

Answer 5

I would start first with the applicable Supreme Court and Ninth Circuit precedent. If there was no precedent, I would look to the text of the statute as guided by the canon’s of construction. If the meaning of the statute is clear on its face, my process would stop.

If there’s any ambiguity, however, I would look to precent involving analogous statutes, perhaps case law outside the Ninth Circuit for persuasive authority. And lastly, the legislative history of the statute to see if there’s a clear pronounce meant of congresses intent.

Question 6

What sources would you consult on a case that involved interpreting a Constitutional provision?

Answer 6

I would start first with the applicable Supreme Court and Ninth Circuit precedent interpreting the provision. In the unusual event of absolutely no precedent, I would look to the text of the Constitution and interpret it consistent with the methods described by controlling courts in the most analogous situation. For example, in New York State Rifle & Pistol Association, Inc. v. Bruen, the Supreme Court looked to the original public meaning of the Second Amendment. I would also look to other circuits for analogous cases and persuasive authority.

Question 7

What are the canons of construction?

Answer 7

They’re a system of rules or maxims used to interpret a statute. They’re there as a set of principles that guide the interpretation of text to lead to predicable outcomes. For example, one category of canons involves grammar convention and syntax.

Question 8

Do you think the Constitution should be used to create new rights?

Answer 8

Federal judges are bound by the Washington v. Glucksberg test. Lower courts considering whether there are new unenumerated rights under the 14th Amendment’s Due Process clause would need to consider whether the claimed right was:

1. “deeply rooted in this Nation’s history and tradition” and,
2. “implicit in the concept of ordered liberty.”

521 U.S. 702 (1997).

Question 9

Are there fundamental rights that haven’t yet been determined?

Answer 9

That is a question that may come before me so it would be inappropriate for me to respond to that question.

Question 10

Does the Constitution protect rights that are not expressly enumerated in the Constitution? Which rights?

Answer 10

Yes, Washington v. Glucksberg, the Supreme Court held that the Fifth and Fourteenth Amendments protect certain unenumerated fundamental rights and liberties which are, “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”

The Supreme Court has recognized such rights like the rights to marry, Loving v. Virginia, 388 U.S. 1 (1967), have children, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942), and to direct the education and upbringing of one’s children, Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925).

Question 11

When, if ever, is it appropriate to consult the laws of foreign nations when interpreting the provisions of the U.S. Constitution?

Answer 11

The Constitution is a domestic document. If confirmed, I would look to the text, structure, and background of the Constitution itself in carrying out the task of constitutional interpretation.

Question 12

What is “federal common law”?

Answer 12

Broadly speaking, I understand federal common law to refer to rules of decision that are formed by federal courts as part of their Article III authority to decide cases and controversies that come before them. I understand there to be limited power to formulate common law in certain settings (e.g., admiralty), but The Supreme Court has long emphasized, however, that “[t]here is no federal general common law.” Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).

Question 13

When the text appears to conflict with what you believe the legislative body had in mind, what do you do?

Answer 13

The best evidence of what the legislature had in mind is the plain text of the statute. If the statute is clear and unambiguous, my job as judge is to apply the law as written, even if I think congress intended something else.

Question 14

Can the meaning of a statute change over time?

Answer 14

The best evidence of the meaning of the statute is the statutory text itself. Unless the statutory text changes, of the controlling precedent interpreting that text changes, the meaning of a statute will remain the same.

Question 15

What role does legislative history play when interpreting ambiguous statutory terms? Is all legislative history created equally?

Answer 15

There are numerous instances where the Supreme Court has considered legislative history in interpreting ambiguous text. But some forms of legislative history are more persuasive than others. For example, a statement of purpose in a bill will be more persuasive than statements made during a floor debate.

Question 16

What is judicial activism? Do you consider judicial activism appropriate?

Answer 16

That’s a loaded term that carries different meaning depending on who you’re speaking with, but I understand it to include situations where judges (1) decide a case based on their personal views rather than what the law requires or (2) go beyond the case before them to reach issues that are not properly presented. Neither scenario is appropriate in my view.

Question 17

Do you believe in a “living Constitution”?

Answer 17

I don’t believe that there is a living Constitution in the sense that it is changing or infused with the policy perspective of the day. The Constitution has an “enduring fixed quality to it,” and it’s the rock to which our society is tethered. It’s one of the geniuses of the Constitution, and to the extent I’m called upon, it would approach interpreting the Constitution in that way.

Question 18

How do we know what the framers intended?

Answer 18

We look to the text of the constitution. To do otherwise, implies there’s a lack of clarity in the words of that document. As a District Judge, I would rely on Supreme Court and 9th Circuit precedent to derive the meaning of any Constitutional provision.

Question 19

How do we know what the framers intended?

Answer 19

We look to the text of the constitution. To do otherwise, implies there’s a lack of clarity in the words of that document. As a District Judge, I would rely on Supreme Court and 9th Circuit precedent to derive the meaning of any Constitutional provision.

Question 20

“Will” of the legislature vs. “judgment” of the courts?

Answer 20

I’m not familiar with Federalist Paper No. 78, so I’m reluctant to venture a guess. As a judge, if confirmed, I would rule from a place of knowledge, not conjecture.

I think it means that judges should not use their “judgment” to override the “will” of the Constitution, as embodied by its plain text.

Question 21

“Every time the Supreme Court defines another right in the Constitution, it reduces the scope of democratic debate.” - Scalia. What does that mean?

Answer 21

I don’t know the context in which the statement was made, so I hesitate to venture a guess. As a judge, if confirmed, I would rule from a place of knowledge, not conjecture.

To the extent, the sentiment speaks to the separation of powers I agree. It’s for the legislature to pass laws. It’s for the courts to interpret the constitution and to apply those interpretations to controversies.

Question 22

When can a lower court depart from Circuit Court of Supreme Court precedent?

Answer 22

As a District judge, I would be bound by Circuit and Supreme Court precedent. It is never appropriate for a District judge to depart from precedent.

Question 23

What is federalism?

Answer 23

Federalism describes a system of government where some powers belong to the national government, and some powers belong to the state government.

Question 24

What is “rational basis” review?

Answer 24

It’s a test courts use to determine the constitutionality of a statute or ordinance. To pass the rational basis test, the statute or ordinance must have a legitimate state interest, and there must be a rational connection between the statute’s/ordinance’s means and goals. The test is used when no fundamental rights are at stake and no suspect classes implicated.

Question 25

What is intermediate scrutiny?

Answer 25

It’s a test courts use to determine the constitutionality of a statute or ordinance. Intermediate scrutiny is only invoked when a state or the federal government passes a statute that negatively affects certain protected classes. It’s used in Equal Protection challenges based on gender, illegitimacy, and some first amendment claims.

To pass intermediate scrutiny, the challenged law must:

1. further an important government interest,
2. and must do so by means that are substantially related to that interest.

Question 26

What is strict scrutiny?

Answer 26

It’s a test courts use to determine the constitutionality of a statute or ordinance. Strict scrutiny applies where the law in question burdens suspect classes (race, religion, alienage, national origin) or fundamental rights. To pass strict scrutiny, the legislature must have passed the law to further a “compelling governmental interest,” and must have narrowly tailored the law to achieve that interest.

Question 27

What is the commerce clause?

Answer 27

The Commerce Clause refers to Article 1, which gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”

Case law has limited this power primarily three areas:

1. Congress may regulate the use of the channels of interstate commerce.
2. Congress may regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce
3. Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce

Question 28

What is the dormant commerce clause?

Answer 28

The “Dormant Commerce Clause” refers to the prohibition, implicit in the Commerce Clause, against states passing legislation that discriminates against or excessively burdens interstate commerce.

Question 29

When should a federal court declare a statute enacted by congress unconstitutional?

Answer 29

Congressional statutes are entitled to a presumption of constitutionality, and federal courts should take care to avoid the unnecessary resolution of constitutional questions. But when congress exceeds its constitutional limitations found in Article I or violates some constitutional right of the people, Courts must find the law unconstitutional.

Question 30

What is the necessary and proper clause?

Answer 30

It is found in Article I of the Constitution and states, Congress has the power “to make all Laws which shall be necessary and proper for carrying” out its duties under the constitution.

Question 31

What is justiciability?

Answer 31

Justiciability refers to a matter which is capable of being decided by a court. Justiciable means that a case is suitable for courts to hear and decide on the merits.

Typically to be justiciable,

• the court must not be offering an advisory opinion,
• the plaintiff must have standing, and
• the issues must be ripe but neither moot nor violative of the political question doctrine.

Question 32

What are the limits of the presidents ability to issue executive orders?

Answer 32

The Supreme Court has held that the President’s ability to issue executive orders “must stem either from an act of Congress or from the Constitution itself.” Whether the president has acted within this authority would need to be analysis under applicable president. If confirmed, and presented with this issue, I would diligently research all controlling authority and apply it to the facts of the case.

Question 33

What is the Chevron doctrine?

Answer 33

Chevron deference refers to the doctrine of judicial deference given to an administrative agencies construction of a statute during agency rule making. Courts use a two-step process to determine whether deference is warranted:

1. considers whether or not the statute that authorizes the agency’s regulation is either clear or ambiguous, and at that step, the judge looks at the text, considers structure, history, canons of construction and precedents and decides is the statute clear or is the statute ambiguous. If the statute is clear, if it clearly authorizes the regulation, then the regulation is valid. If the statute is clear and it clearly does not authorize the regulation, then the regulation is invalid.
2. However, if the statute is ambiguous, then the judge moves to Chevron step two and at Chevron step two, the judge considers whether the agency’s interpretation of the statute is a reasonable interpretation.

Question 34

What is the “major question doctrine”?

Answer 34

The “major-questions” doctrine is the idea that if Congress wants to give an administrative agency the power to make “decisions of vast economic and political significance,” it must say so clearly.

In West Virginia v. EPA, the Supreme Court explained that the major-questions doctrine requires federal agencies to have “clear congressional authorization” when they address important issues.

Question 35

What is a fundamental right?

Answer 35

Fundamental rights are a group of rights that have been recognized by the Supreme Court as requiring a high degree of protection from government encroachment. These rights are specifically identified in the Constitution (especially in the Bill of Rights), or have been found under Due Process.

Laws encroaching on a fundamental right generally must pass strict scrutiny to be upheld as constitutional.

E.g., voting, child-rearing

Question 36

What is the Free Exercise clause?

Answer 36

The Free Exercise Clause is found in the 1st Amendment, and protects the right of citizens to practice their religion, so long as the practice doesn’t run afoul of “public morals” or a “compelling” government interest.