Fall 2017 Flashcards Preview

1. Text
2. Structure
3. History
4. Doctrinal
5. Prudential 
6. Ethical

A strict reading of the text of the constitution

Using other parts of the constitution to provide meaning and context (comparative)

• Original Intent
• Original Meaning
• Context
• Traditions

Historical evaluation of the framing, ratification, and other actions during the time of the creation of the constitution.

Stare Decisis - prior interpretations of the constitution by the supreme court.

Balancing the costs/benefits of various interpretations to seek the most practical or pragmatic alternative.

The moral and ethical commitments reflected in the constitution.

The people are sovereign and grant power to the government which limits governmental power.

• 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.

Separation of Powers - checks and balances

• 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

• Textual, Structural, Historical - Originalist
• Doctrinal (precedential) - C.L. Traditionalist
• Moral/Ethical - Ethical
• Prudential - Pragmatist

Adverse proceeding between litigants

Muskrat - Request for advisory opinion denied

1. Case or Controversy (No Advisory Opinions)
2. Standing
3. Ripeness
4. Mootness
5. Not a Political Question

A party must be the proper person to bring suit

1. Real Injury
2. Injury "fairly traceable" to Defendant
3. Redressable by judicial action (Remedy by judgment)

Lujan - Future observations of endangered species was too speculative to serve as a real injury.

A case or controversy whose disposition is not too early or too late for ajudication

A question that has already been resolved, no longer requiring ajudication

A question whose remedy is best resolved by political action, either through the legislative or executive branches.

1. Concrete and Particularized
2. Causation (Traceable)
3. Redressable by Judicial Action

1. Injury in Fact (Type)
2. Actual or imminent, not conjectural (Time)

Real not abstract (tangible harm), or ideological harm (government not following the law)

• Injury suffered by oneself (subjective injuries are not particularized)
  • Violation of a constitutional right is an injury

• When an injury exists at time of filing (original case)
• No standing, if an injury does not exist at time of filing 

• 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.

Generally no standing for unconstitutional "tax and spend", exceptions are;

1. A taxpayer,
2. That can show a logical link between the status and issue,
3. A nexus between status/issue and unconstitutionality;
   1. Like the Establishment Clause (separation of church and state)

Flast - tax and spend for religious aid group

Generally no, except when:

• no antagonism exists between the 1st and 3rd party.
  • That is, they share common interests and identities of rights, or
  • there is an obstacle/impediment for the 1st party to bring suit.

Singleton - A doctor (third party) brings an action for his patients regarding overly restrictive abortion laws.

1. 3^rd parties must assert their own rights
2. Parties (1^st and 3^rd) may be antagonistic

The injury must be plausibly traceable to the defendant. 

That a judicial action will have some effect or provide some remedy.

U.S. Constitution is the supreme law of the land