Consider: Unenumerated rights, like or government” Miranda; “small Dynamic Constitution” can change over time – “Living – But subjective Significant judicial power – Textual: Meaning of the specific words in the Constitution Changed circumstances Changing technology, etc. that didn’t exist at framing – Hyper-textualism would require constant amendments Intra-textualism The same word means the same thing throughout (McCulloch) – Structural: Inferring rules from the structural relationships in the Constitution E.g. Separation of powers, or federalism Congress regulates army/navy (Art. 1), President is commander in chief (Art. 2), Art. 3 is silent judiciary should give lots of deference in this area Prudential: Cost/benefit with respect to a particular rule Pops up in emergencies isn’t a suicide pact” “Constitution Example (1983) v. Chambers – Burger Holding that Neb. State legislature didn’t violate Establishment Clause (1st – Am.) in permitting/paying for prayers before legislative sessions, paid with public funds Establishment Clause: shall make no law respecting the establishment “Congress of religion” (U.S. Const. Am. 1) Historical: Framers passed statute authorizing chaplain for Congressional prayer, paid with public funds then voted on Am. 1 3 days later not interpret Am. 1 as not allowing what they just passed Brenan J. Dissenting Historical: Constitution as moment of higher lawmaking vs. ordinary lawmaking; Historical intent of framers ratifiers (Bill of Rights was a condition imposed and by the states, not Congress); Constitution is not static, fixed @ framing Doctrinal: Test Statute must have secular legislative purpose; Primary – effect neither advances/inhibits religion; doesn’t foster excessive entanglement with religion Prudential: Separation of church and state protects both religion and states Ethical: Prayer is part of American culture Textual: of Religion” referred to the Church of England “Establishment JUDICIAL REVIEW Analysis Political Question Doctrine (Baker 1962) v. Carr, Textual Constitutional Commitment to another branch someone is SATPOP (1993) Judges should rule on removal of other judges Nixon v. US – Judicial impeachment is an Art. 2 power of Congress Institutional Competence Lack of discoverable/manageable standards – (1939) No standard to determine what is long” for Coleman v. Miller – “too voting on a Constitutional Amendment Comity Prudential reasons to abstain (respect for coordinate branches) – Standing
Consider: Unenumerated rights, like Miranda; or “small government” Dynamic – “Living Constitution” – can change over time But subjective – Significant judicial power Textual: Meaning of the specific words in the Constitution Changed circumstances – Changing technology, etc. that didn’t exist at framing Hyper-textualism would require constant amendments Intra-textualism – The same word means the same thing throughout (McCulloch) Structural: Inferring rules from the structural relationships in the Constitution E.g. Separation of powers, or federalism Congress regulates army/navy (Art. 1), President is commander in chief (Art. 2), Art. 3 is silent judiciary should give lots of deference in this area Prudential: Cost/benefit with respect to a particular rule Pops up in emergencies “Constitution isn’t a suicide pact” Example – v. Chambers (1983) Burger – Holding that Neb. State legislature didn’t violate Establishment Clause (1st Am.) in permitting/paying for prayers before legislative sessions, paid with public funds Establishment Clause: “Congress shall make no law respecting the establishment of religion” (U.S. Const. Am. 1) Historical: Framers passed statute authorizing chaplain for Congressional prayer, paid with public funds then voted on Am. 1 3 days later not interpret Am. 1 as not allowing what they just passed Brenan J. Dissenting Historical: Constitution as moment of higher lawmaking vs. ordinary lawmaking; Historical intent of framers and ratifiers (Bill of Rights was a condition imposed by the states, not Congress); Constitution is not static, fixed @ framing Doctrinal: Test – Statute must have secular legislative purpose; Primary effect neither advances/inhibits religion; doesn’t foster excessive entanglement with religion Prudential: Separation of church and state protects both religion and states Ethical: Prayer is part of American culture Textual: “Establishment of Religion” referred to the Church of England JUDICIAL REVIEW Analysis Political Question Doctrine (Baker v. Carr, 1962) Textual Constitutional Commitment to another branch someone is SATPOP Nixon v. US (1993) – Judges should rule on removal of other judges Judicial impeachment is an Art. 2 power of Congress Institutional Competence – Lack of discoverable/manageable standards Coleman v. Miller (1939) – No standard to determine what is “too long” for voting on a Constitutional Amendment Comity – Prudential reasons to abstain (respect for coordinate branches) Standing
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