2305 – Week One
Spring 2016 DHS Dual Credit
January 19:
Here’s what we’ll do today:
1 – Walk through the syllabus and blackboard and the blog.
2 – Explain the goal of the class: to understand the struggle over constitutional meaning
3 – Discuss recent topical debates related to the meaning of constitutional language
First: The key points to get from the syllabus are the two additional assignments that will suffice for the college level material. They are both written and will require critical thinking – analysis – on your part. Each week you will be assigned small written assignments which will primarily ask you to analyze events of the day in light of recent events. The second is the critical essay due at the end of the semester. This will require you to analyze a recent decision by the Supreme Court. There will be more on that below. We will also walk through Blackboard and the blog so you’ll understand how each relates to the course.
Second: We’ll talk in general about the point behind the essay assignment. Each student in class will be assigned a separate recently decided Supreme Court case by the second week in class. The cases have been selected because the members of the Supreme Court were conflicted about the case. The court occasionally decides cases unanimously, but just as often they can be divided. Sometimes these divisions can be due to substantive disagreements about how constitutional language should be interpreted. That’s the point of the exercise, and looking through these cases can help us understand what the Constitution – or at least specific clause within in – means at this point in time.
Third: To give you a general idea about how these conflicts over constitutional meaning are in the news regularly, I want to point out some recent stories covering them. We can spend a bit of time in class discussing them. Three recent areas of dispute involve (1) whether the “natural born clause” allows Senator Cruz to hold the office of the presidency, (2) whether the Second Amendment prohibits the enforcement of the executive orders issued by President Obama regarding gun violence, and (3) what procedure the states can use, based on the bare outline established in Article V, to call a constitutional convention in order to propose potential amendments to the U.S. Constitution.
Here are blog tags that can provide additional information on each of these.
- Natural Born Citizen.
- Second Amendment.
- Article V Convention.
We’ll talk generally about these topics – which we’ll dig into further later in the semester – but I do intend to walk through the following article since it lays out the different ways that constitutional language can be interpreted, and the consequences of that difference.
- Is Ted Cruz a ‘natural born Citizen’? Not if you’re a constitutional originalist.
January 21
I plan to spend Thursday going over a few items that should be helpful for doing well on the critical essay that will be due at the end of the semester. Most will focus on the role the Supreme Court plays in clarifying constitutional meaning. I’ll use this opportunity to walk through key terms and concepts will be useful over the course of the semester. You’ll cover some of this material in the chapter on the judiciary later this semester, so this’ll be a bit of a head start.
Here are the questions I hope to cover:
1 – What is the role of the court in the system of separated powers?
This is not clearly stated in the constitution – what does “the judicial power” mean?
- the vesting clauses
What is the purpose of the separation of powers?
- Fed 47: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
How is it established?
- each institution has “a will of its own”
- - unique modes of appointment
- - unique terms of office
How is it maintained?
- Fed 51: ambition counteracts ambition
- the checks and balances
2 – Why does the judiciary have the power of judicial review?
Some system of judicial review was considered necessary.
- Federalist 78: The U.S. Constitution is a limited constitution, but limitations can only be maintained if there is a way that the violations of limits can be negated. That is the purpose of judicial review.
But why is judicial review not mentioned in the Constitution?
- Concerns over abuse
- Councils of Revision
Judicial review should be given to the courts for at least a few reasons
- it involves interpretation of the law, which is what the judiciary does anyway
- the judiciary is the weakest of the branches which means two things:
- - that it cannot use the power of judicial review to dominate the other branches
- - it needs to be able to protect itself from the other two branches
- - - the judiciary can become dangerous if it is controlled by either of the other two branches.
Judicial review is the reason the courts the courts have any strength at all
How was the power acquired? Marbury v. Madison – which will be discussed later
3 – If there is a conflict between constitutional law and statutory law, why does the former win out?
Again, Fed 78: Statutory law must not violate constitutional law, but why does constitutional law take precedence?
- constitutional law reflects the will of the people since it went through the ratification process.
- statutory law reflects the will of the representatives of the people
4 – What is the process cases take on the way to the court?
Key Point: The Supreme Court reacts to cases brought before it.
First, let’s think about how judicial procedure. How do cases make it to the Supreme Court?
- Trial: First step – matter of facts and evidence
- - civil or criminal
- - local, state or national
- - - test cases
- Appeals: Second step – matter of procedure
- - state
- - federal
- The Supreme Court
- - Writ of certiorari
- - Rule of Four: roughly 10,000 cases are appealed to the Supreme Court each year. Recently the court has heard roughly 75 or so. Often these cases involve conflicts over constitutional interpretation.
- legal briefs submitted
- - petitioner / respondent
- - amici
- - - precedence
- - - stare decisis
- oral arguments
- vote in conference
- written opinions
- - majority or plurality
- - concurrence
- - dissent
5 – How do Supreme Court justices apply the constitution? How do they interpret the document?
Two basic approaches:
- originalism
- non originalism
Related approaches:
- Strict Construction – The Constitution was written with a narrowly defined meaning that needs to be adhered to, unless the meaning is changed by the amendment process.
- Loose Construction – The Constitution was written in loose terms with the idea that these terms could be reinterpreted to apply to the changing circumstances of society.
More specific:
- original intent
- textualism
- the living constitution
Also: Judicial activism vs Judicial Restraint
6 – What determines which interpretative style wins out?
- the composition of the court
- which presidents have been able to appoint people to the court
- a word or two on the Roberts Court.
Week Two:
- A walk through the Constitution
- Introduction to the court cases I will be assigning you
