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Flashcards in Fall 2017 Deck (159)
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What are the Six Modalities of Constitutional Interpretation?

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

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


What is Standing?

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.


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?

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


What constitutes a concrete and particularized case?

  1. Injury in Fact (Type)
  2. 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.


When does a Taxpayer have standing?

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


Can 3rd Party's have standing?

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.


What are the policy reasons for no 3rd party standing?

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


What is "fairly traceable"?

The injury must be plausibly traceable to the defendant. 


What is redressable?

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


What is the Supremacy Clause?

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