Lesson 1 Flashcards
What are the five principal approaches to constitutional interpretation?
- Originalism
- Precedent
- Longstanding practice
- Judicial restraint
- Living constitutionalism (normative)
What are the two primary classes of institutions?
- Democratically accountable institutions (legislatures, executives, and common law courts)
- Life tenured judiciary
What is originalism?
Looks to the understandings of democratically accountable institutions (Philadelphia Convention, the ratifying conventions, public debate) when the constitutional provision was first adopted.
What is longstanding practice?
Looks to understandings of democratically accountable institutions (legislatures, executives and common law courts) over time.
What is Judicial restraint?
Disposition to defer to decisions of elected bodies when constitutional principles are not clearly to the contrary
Looks to understandings of politically accountable institutions in the present.
What is precedent?
Looks to understandings of life-tenured courts over time.
What is the normative approach?
Normative approach looks to understandings of life-tenured courts in the present.
What do schools of Burkean interpretation emphasize?
Continuity and change over time through reliance on gradual evolution, precedent, and long-standing practice.
What are the two primary arguments for originalism as the most legitimate method for constitutional interpretation?
- Semantic theory
- Democratic theory
What is meant by semantic theory?
Meaning, not intent
What is meant by originalism’s democratic theory?
Controlling meaning is that of citizenry as a whole; ‘original public meaning.’
What is Republican theory?
Representative and deliberative govt, accountable to the people thru elections but not immediately answerable to the people’s instructions is preferable to pure democracy.
What are the three different types of precedent or ‘stare decisis?’
- Vertical precedent (strict following of superior courts in hierarchy)
- Cross jurisdiction (courts give some weight to past decisions of courts in other jurisdictions)
- Same court (same court like SCOTUS is required to give weight to its own past decisions)
‘leave things decided when they suit our purposes’
What are the 4 principal arguments following precedent?
- Necessary for rule of law values of equality, stability and predictability
- Stare decisis is defining feature of legal system
- Might tend towards better substantive results (evolutionary product)
- Precedents become embedded in way our society conducts itself; gain a democratic warrant when legislatures and executives embrace and act on supposition they are true.
What is positivist doctrine?
Assumption that the constitution is what a current majority of SCOTUS says it is.
Not evolutionary development.
What are the 3 understandings of precedent?
- Existence of precedent always counts as a good reasons to support conclusion that flows from it.
- If a particular outcome of the case follows from precedent, judges are obliged either to follow the precedent or explain why not. If the latter, establish new contrary precedent.
- Weight to be given questionable precedents is matter of comity w/in court.
Do courts generally respect precedent or pursue constitutional meaning?
Precedent.
Most disputes don’t get to court bc of lack of standing.
What is the difference between liquidation and and living constitutionalism?
Liquidation: Fix meaning of constitution through course of deliberative decisions. Form of construction.
Living: Constitutional meaning is never fixed.
What is the normative approach?
Judge should decide how abstract moral principles of Constitution are best understood from his moral standpoint
What does judicial restraint do?
Presumed constitution is not designed to produce one best answer to all questions, but a framework for representative govt and to set forth fee substantive principles.
Representatives of people rather than judges entitled to resolve difficult moral economic and practical questions. Const is positive law.
