Then shape it so that it’s relevant today in settling Constitutional issues Problem than textualism, but possible multiple views from the same theory Broader Scalia, Thomas Textualism – Text is the only subject of inquiry Although the language may be ambiguous, the text gives us something concrete to hold on to Problem Words can change their meaning Ely Interpretivism – Courts can interpret the Constitution when the result can be fairly implied or derived from its language Uses the Constitution as an anchor AND to provide some structure Grey Non-Interpretivism – When we have complex words found in the Constitution we should be open to conceding Fundamental issues in our society are protected by vague phrases and we should concede that SCOTUS relies on norms and other sources Frankfurter Neutral Principles – The courts should interpret the Constitution in complete detachment Look for the most neutral principles Judges should be free from any kind of result oriented jurisprudence Judicial Restraint Passive Virtues – Even when courts have power to act they should be reluctant to do so Legitimacy on the judiciary depends on its restraint It’s better for a complex problem to be solved by the Executive and Legislature working together, than the Judiciary itself Participatory Values When there is a dispute of law, it is best to combine the view of the Judges with that of the Legislature FEDERAL JUDICIAL POWER Limitations on Judicial Review Limitations on Judicial Review Types Textual Exceptions Clause (Congress can limit jurisdiction) Constitutional Limitations Case or Controversy Standing Mootness Ripeness Judicial Limitations Political Question Doctrine TEXTUAL LIMITATIONS - Congressional Control of Federal Jurisdiction Exceptions Clause Gives Congress power to the appellate jurisdiction of the Supreme Court LIMIT
Then shape it so that it’s relevant today in settling Constitutional issues Problem Broader than textualism, but possible multiple views from the same theory Textualism – Scalia, Thomas Text is the only subject of inquiry Although the language may be ambiguous, the text gives us something concrete to hold on to Problem Words can change their meaning Interpretivism – Ely Courts can interpret the Constitution when the result can be fairly implied or derived from its language Uses the Constitution as an anchor AND to provide some structure Non-Interpretivism – Grey When we have complex words found in the Constitution we should be open to conceding Fundamental issues in our society are protected by vague phrases and we should concede that SCOTUS relies on norms and other sources Neutral Principles – Frankfurter The courts should interpret the Constitution in complete detachment Look for the most neutral principles Judges should be free from any kind of result oriented jurisprudence Passive Virtues – Judicial Restraint Even when courts have power to act they should be reluctant to do so Legitimacy on the judiciary depends on its restraint It’s better for a complex problem to be solved by the Executive and Legislature working together, than the Judiciary itself Participatory Values When there is a dispute of law, it is best to combine the view of the Judges with that of the Legislature FEDERAL JUDICIAL POWER Limitations on Judicial Review Limitations on Judicial Review Types Textual Exceptions Clause (Congress can limit jurisdiction) Constitutional Limitations Case or Controversy Standing Mootness Ripeness Judicial Limitations Political Question Doctrine TEXTUAL LIMITATIONS - Congressional Control of Federal Jurisdiction Exceptions Clause Gives Congress power to LIMIT the appellate jurisdiction of the Supreme Court
Constitutional%20Law%20I%20-%20Barron%20-%20Spring%202011.docx