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Politics by Other Means Constitutional Law in the United States I. Law is Politics Courts respond to public opinion – but are not democratic Judicial Elections Even the “nonpartisan” ones: parties endorse them anyway

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Politics by Other Means

Constitutional Law in the United States


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I. Law is Politics

  • Courts respond to public opinion – but are not democratic

    • Judicial Elections

      • Even the “nonpartisan” ones: parties endorse them anyway

      • Even in “merit selection” systems: politics is displaced to selecting the nominating board

      • Small, highly organized interests manipulate elections: “Axiom of 80”

        • 80% want to elect judges

        • 80% fail to vote in judicial elections

        • 80% of voters don’t know the candidates

        • 80% thinks campaign finance determines judicial outcomes


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2. Other elections politicize law

  • Presidential and Gubernatorial – Campaigns routinely attack judicial selections

  • Elected District Attorneys – Most states. “Springboard” office.

  • Elected public defenders! Florida, Nebraska, Tennessee, San Francisco


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3. Unelected courts follow politics too

  • Appointment power: Presidents seek open allies if they can get them, “stealth” allies otherwise

  • “Senatorial Courtesy:” Power to block District judges

  • Courts presume that people’s will is Constitutional; burden of proof lies against challenges to elected branches

  • Court is aware of political currents: “The Switch in Time That Saved Nine.” Results from 1953-1995:



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4. Failure to play politics  backlash

  • Court-Stripping: Congress has power to define Court’s jurisdiction

  • Court-Packing: Number of Justices not set by Constitution

  • Impeachment: Unpopular decisions  pressure to impeach

  • Amendment: 11th, 16th are examples

  • Non-enforcement: President checks court authority to order remedies


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B. Courts make policy decisions

  • Allocation of resources

    • When judges design remedies

    • Vague language (remember “judicial lotteries?)

    • Regulatory agency review: Vague delegation of power based on policy outcomes

  • Resolving Competing Values: Ninth Amendment allows limitless expansion of individual rights


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C. Political affiliation predicts case outcomes

  • Best predictor of state court decisions is ideology of appointers or ideology of electorate

  • Supreme Court: Ideology consistently predicts outcomes


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C. Political affiliation predicts case outcomes

  • Best predictor of state court decisions is ideology of appointers or ideology of electorate

  • Supreme Court: Ideology consistently predicts outcomes

  • Supreme Court more likely to defer to President of similar ideology


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D. Political actors manipulate law

  • Interest Groups and Amicus Curae: “Battle of the Briefs.” It works.

  • Test cases and forum-shopping

  • Side-payments and “moot cases”

  • Lawsuits as harassment


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E. Law is not fair

  • Money matters: Wealthy litigants more likely to win

  • State Supreme Courts: Repeat players (Haves) Beat One-Shot Appellants (Have-Nots)

    • Relationship decreases when outside amici favor have-nots

  • Interest groups more likely to gain “standing” than individuals: You can’t sue over your tax dollars


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F. Law transmits values

  • Evangelical state judges more likely to: uphold death penalty, dismiss gender discrimination complaints, and uphold obscenity convictions


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II. The Virtues and Hazards of Consistency

  • Consistency as a Virtue

    • Increases respect for the law

    • Increases efficacy of the law

    • Generates predictable feedback for lawmakers

    • Enables decision-making in hundreds of cases

    • Checks tendencies to vote politically


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B. Hazards of Consistency

  • Consistent standards can still be political ones

  • Consistency  non-responsive to public opinion  public distrust

  • Consistency can mean making the wrong decision for the right reasons, i.e. allowing the ends to justify the means

  • Consistency assumes inerrancy


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C. What do we want?

  • Do we want the law to be consistent from case to case?

  • Do we want judges who ignore the consequences of their decisions?

  • Are some principles so important they should always be followed?

  • Do we want judges who assume the role of policymakers?

  • Do we want the law to be fair, i.e. rich, poor, organized, unorganized all equally likely to win?


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III. Theories of Legal Interpretation

  • Original Intent: What did the Framers intend the words to mean?

    • Method: Examine writings, speeches previous laws and precedents, context of adoption, etc.

    • Strengths

      • Constancy: Law retains same meaning over time

      • Legitimacy: The people’s representatives intended a particular reading


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Case study: Scalia and the 11th Amendment

  • 11th Amendment bars lawsuits that are “commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state”

  • Scalia and most judges who champion textual analysis agree that the 11th Amendment bars lawsuits against your own state

    • Is there any reasonable definition of “another” that means “the same?”

  • Conclusion: Even textualists care about the INTENT of the text, not just its words


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3. Weaknesses

  • Compromises and Disagreements: Framers may not have shared common preferences or interpretation

  • Historical Indeterminacy: New data is discovered about old beliefs

  • Invites Distortion: Pick and choose between Framers


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B. Plain Meaning (Strict Constructionism)

  • Method: Examine text using “plain,” i.e. dictionary or legal definitions

  • Strengths

    • Consistency: Laws with similar phrases mean the same thing

    • Neutrality: In principle, plain meaning is not a value statement

    • Accountability: Public and Framers both know what has been adopted


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3. Weaknesses

  • Deliberate Vagueness – Congress compromises with a “judicial lottery”

  • Overbroad Terms: Words like “liberty” and “right” can mean almost anything

  • Meaning Shifts: Often forced to examine “original intent” or “living meaning” to define words

  • Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” – Do definitions help here?


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Example: “Common Sense” and Typos

  • Class Action Fairness Act (CAFA) says parties must appeal a ruling “not less than 7 days after entry of the order.”

  • Two Circuit Courts have decided that "not less than 7 days after" actually means: "not more than 7 days after."


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Democracy”

“Separation of powers”

“Federalism”

“Separation of Church and State”

“God”

“Checks and balances”

“Judicial review”

“Right to Privacy”

“National security”

“Executive Order”

“Executive Privilege”

“Jury of one’s peers”

“Presumed innocent until proven guilty”

e. Common Misconceptions: Not Part of the Constitution’s Text


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C. Living Constitution(Living Meaning)

  • Method: Examine function that text currently serves in society

  • Strengths:

    • Response to Change: Laws/Constitution need not be rewritten every time society of technology advances, i.e. wiretaps

    • Preserves Core Values: Interprets words in a way that defends particular values, i.e. freedom, self-expression, etc.


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Example: Wiretapping

  • Fourth Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated”

  • Is your phone call or email message a person? A house? A paper? An “effect”?

  • Because modern society relies on telephones, the courts treat phone calls as if they were mail/papers  preserving the “function” of the 4th Amendment while ignoring its text


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3. Weaknesses

  • Judicial Policy-Making: Judges becomes the arbiters of which policy best achieves a particular goal

  • Unpredictability: Values differ over time and between judges, i.e. “our Judeo-Christian heritage” vs. “separation of Church and State”


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D. Pragmatism

  • Method: Avoid “activism” by respecting precedent (Stare Decisis) and presuming constitutionality; minimize disruption otherwise

  • Strengths

    • Stability: Change occurs incrementally

    • Democracy: Deference allows representatives to make policy


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3. Weaknesses

  • Inconsistent: What minimizes change in one are may lead to radical change in another, so different laws interpreted by different standards

  • Status quo bias: Bad precedents and outmoded laws go unchallenged

  • Legal indeterminacy: Precedents often go both ways, enabling judges to make policy as they see fit


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Example: Bowers and Privacy

  • Bowers vs. Hardwick: “Sodomy” between consenting adults is not private

  • Griswold: Use of birth control during sex is private.  Roe: Abortion is private

  • Lawrence vs Texas: Court revisits Bowers

    • Uphold precedent  threatens other precedents

    • Overrule precedent  possible expansion of gay rights into other areas of law



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