PHIL 270

Originalism

• considers what a clause meant (or how it was understood) to those who enacted it

• asks what the framers wanted to do

• against legal activists

Pragmatism / Living constitution

considers the effect of various interpretations, suggesting that courts should adopt the one that avoids bad consequences

Conservative

someone who believes that nothing should be done for the first time, to not change

Liberal

They believed that a primary responsibility of the judiciary is to protect individual liberties, and most especially the rights of minorities and others whose rights might not be fairly protected in the majoritarian political process.' They believed that this responsibility was both contemplated and intended by the Framers of our Constitution as a fundamental check on the power of the elected branches of government, and they believed that courts can fulfill this responsibility only by actively interpreting the Constitution to ensure that democracy operates both properly and fairly.

Substantive due process

State has to give a really good (compelling) reason before taking away life, liberty, or property (strict scrutiny)

Equal protection clause

constitutional requirement that states and the federal government treat people in similar circumstances equally

“Blurring the ‘Law/Society’ Distinction”

Surprisingly persistent view that law is peripheral, simply ancillary to the development and optimization of social relations.

Strict Scrutiny

• compelling state interest

• narrowly tailored to achieve it

rational basis

a legitimate state interest and rationally related 

procedural due process (14th and 5th amendments)

State must follow certain procedures before taking away life, liberty, or property

Brandeis in Olmstead (1928)

right to be left alone necessary for the pursuit of happiness

Griswold v. Connecticut

• privacy was established

• fundamental principles of liberty and justice which lie at the base of all our civil and political institutions

Loving v. Virginia

vital personal rights essential to the orderly pursuit of happiness by free men

Two ways of getting rid of stare decisis

• Overruling precedent (as in Dobbs) – has the merit of being honest

• “interpreting precedent into oblivion” – Alito and Roberts and Stone’s concern

Constitutional craft

Web of precedents, evolution against the “sweep of history,” etc.

evolutionary functionalism

single, linear progression of societies toward liberal capitalism and function of law is to facilitate that evolution

fundamental rights

• deeply rooted in history

• “implicit in the concept of ordered liberty”