Fall 2017 Flashcards
(159 cards)
What are the Six Modalities of Constitutional Interpretation?
- Text
- Structure
- History
- Doctrinal
- Prudential
- Ethical

What is Textual Interpretation?
A strict reading of the text of the constitution

What is Structural Interpretation?
Using other parts of the constitution to provide meaning and context (comparative)

What is Historical Interpretation?

- Original Intent
- Original Meaning
- Context
- Traditions
Historical evaluation of the framing, ratification, and other actions during the time of the creation of the constitution.
What is Doctrinal Interpretation?
Stare Decisis - prior interpretations of the constitution by the supreme court.

What is Prudential Interpretation?
Balancing the costs/benefits of various interpretations to seek the most practical or pragmatic alternative.

What is Ethical Interpretation
The moral and ethical commitments reflected in the constitution.

What is individual sovereignty?
The people are sovereign and grant power to the government which limits governmental power.

What is the Locke Theory of Governance?
- Each person has a state of nature of perfect freedom and equality.
- Government is necessary to enforce the law, fairly without prejudice
- People consent to form and restrict rights to protect life, liberty, and property.

What is the Montesqui view of Government?
Separation of Powers - checks and balances

What are the major outcomes of Marbury?
- Constitution is regulatory
- Congress cannot exceed limits of constitution in granting jurisdiction
- Court can compel excutive action for ministerial (legal) duties, cannot for political duties
- Judicial Review - review of legislation for constitutionality
- Appellate Review not Orginal Jurisdiction
Categories of Justices

- Textual, Structural, Historical - Originalist
- Doctrinal (precedential) - C.L. Traditionalist
- Moral/Ethical - Ethical
- Prudential - Pragmatist
What is a case or controversy?
Adverse proceeding between litigants
Muskrat - Request for advisory opinion denied

What are the 5 limits on Jurisdiction?
- Case or Controversy (No Advisory Opinions)
- Standing
- Ripeness
- Mootness
- Not a Political Question
What is Standing?

A party must be the proper person to bring suit
- Real Injury
- Injury “fairly traceable” to Defendant
- Redressable by judicial action (Remedy by judgment)
Lujan - Future observations of endangered species was too speculative to serve as a real injury.
What is Ripeness?
A case or controversy whose disposition is not too early or too late for ajudication

What is Mootness?
A question that has already been resolved, no longer requiring ajudication

What is a Political Question?
A question whose remedy is best resolved by political action, either through the legislative or executive branches.
What are the 3 elements of standing?
- Concrete and Particularized
- Causation (Traceable)
- Redressable by Judicial Action
What constitutes a concrete and particularized case?

- Injury in Fact (Type)
- Actual or imminent, not conjectural (Time)
What is concrete?

Real not abstract (tangible harm), or ideological harm (government not following the law)
What is particularized?
- Injury suffered by oneself (subjective injuries are not particularized)
- Violation of a constitutional right is an injury
When does a party have standing?
- When an injury exists at time of filing (original case)
- No standing, if an injury does not exist at time of filing
When is a case moot?
- When a case that had standing (injury at time of filing) loses standing because the injury is gone (settlement, withdrawl, etc.) after filing.
- De Funis* - University of Washington law school student’ s challenge to an affirmative action program, where DeFunis graduated before the Supremes could hear it.
































