5/7 Notes (Guest Speaker Lecture)
Introduction
Constitutional adjudication is the formal process that judges and legal scholars use to interpret and apply constitutional principles to specific cases, ultimately leading to a decision or judgment.
The primary focus is on the methodologies employed in constitutional adjudication, particularly concerning the American federal constitution, emphasizing the approaches and frameworks that judges use to resolve constitutional questions.
The speaker explicitly expresses a departure from originalism and textualism, which are common methods, indicating a preference for alternative approaches in interpreting the constitution.
The Oath of Office
Oath to Support the Constitution
The oath mandates that the individual will actively support and defend the Constitution against any threats and faithfully execute the responsibilities of their position.
The full oath reads: "I will support and defend the Constitution of The United States against all enemies foreign and domestic. I will bear true faith and allegiance to the same, and I take this obligation freely without any mental reservation or purpose of evasion, and that I will well and faithfully discharge the duties of the office in which I'm about to enter so may be god."
Judicial Oath
In the judicial oath, the individual commits to administer justice impartially, ensuring equal rights and treatment to all, regardless of socioeconomic status.
The complete judicial oath is: "I, Kyla Draper, do solemnly swear that I will administer justice without respect to persons and give equal right to the poor and to the rich. And I will faithfully and impartially discharge and perform all the duties incumbent upon me as a justice of the Supreme Court of the United States or the bills justice of The United States before there under the constitution and laws of The United States."
The speaker contends that neither oath inherently binds an individual to originalism, suggesting that one can fulfill these oaths without adhering to originalist interpretations.
Religious Beliefs and the Oath
The inclusion of "so help me God" is interpreted as not necessarily requiring a religious belief, accommodating individuals of varying spiritual or secular perspectives.
Foundational Principles: Ethical Adjudication
Justice and Beneficence
Judges should conduct adjudication ethically, with a focus on upholding justice and promoting beneficence, ensuring that decisions align with both legal and moral standards.
The speaker suggests that many justices often fail to prioritize morality, seeking justifications to avoid addressing ethical considerations in their rulings.
Rejection of Utilitarianism
Classical utilitarianism is dismissed for reducing morality solely to the promotion of well-being, overlooking other essential ethical considerations.
Utilitarianism and its Shortcomings
Utilitarians oversimplify morality by focusing primarily on maximizing well-being and happiness, thereby misunderstanding the broader scope of beneficence.
Responsibility and Justice
Responsibility is highlighted as a critical element in moral decision-making, standing independently of beneficence and influencing ethical judgments.
Self-defense against malicious attackers is presented as an example where responsibility justifies actions, regardless of the immediate consequences or potential harm.
Justice as a Foundational Principle
Duty to Do Justice
Judges are obligated to ensure justice for all parties involved in a case, preventing the court from being complicit in any form of injustice.
Laws that mandate injustice are deemed void, indicating a higher moral standard that supersedes legal requirements.
Consent and Authority
Legitimate government and laws derive their authority from the consent of the governed, underscoring the importance of popular sovereignty and democratic principles.
Laws that require injustice are considered to lack authority because the people do not possess the right to authorize injustice, reinforcing the idea that justice is a fundamental and inalienable right.
Case Example: Harmelin v. Michigan
Harmelin faced a life sentence without parole for possessing a substantial quantity of cocaine and argued that this violated the Eighth Amendment, which prohibits cruel and unusual punishment.
Scalia contended that the Eighth Amendment does not include a proportionality requirement, thus disagreeing with the claim that the punishment was excessively severe.
The speaker would determine whether the text supports the idea that a grossly disproportionate punishment is cruel and, if affirmed, rule against the unjust punishment, emphasizing the importance of proportionality in sentencing.
Textualism and Original Understanding
Importance of Textualism
Judges should generally adhere to the original meaning of the text to ensure consistent and reliable interpretation.
This approach is crucial for preventing arbitrary interpretations that could lead to adverse outcomes and instability in the legal system.
Exceptions to Textualism
Strict adherence to the text might sometimes result in undesirable outcomes, justifying deviations from strict textualism in certain cases.
Stare Decisis and Precedent
Following established precedent ensures stability and predictability in the law, even if it diverges from the original meaning.
Overturning precedents can destabilize the legal framework and negatively impact reliance interests, highlighting the need for caution when considering such actions.
The Bitter Pill Objection
Challenging Originalism and Textualism
The "bitter pill" objection posits that strict adherence to originalism and textualism can lead to outcomes that are absurd, unjust, or otherwise undesirable.
Examples of Bitter Pills
The constitutional provision designating the president as commander in chief of the army and navy is argued not to extend to the air force under a strict interpretation.
A strict reading might suggest that due process must be afforded even to those who pose an imminent threat to others before they can be deprived of life or liberty by the government.
Some interpretations suggest that there is no constitutional right to legal representation if an individual cannot afford an attorney, which is seen as a bitter pill.
Additional examples are provided in the handout to further illustrate the potential problems associated with strict constitutional interpretation.
Case Study: Katz v. United States
Background of the Case
This case, related to the Fourth Amendment, addresses the issue of wiretapping and the protection of individual privacy.
The Fourth Amendment states: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."
Olmstead and Katz
Olmstead (1928) established that government wiretapping did not constitute an unreasonable search under the Fourth Amendment.
Katz v. United States overturned Olmstead, mandating that a warrant is required for wiretapping to comply with the Fourth Amendment.
Originalist Critique of Katz
Originalists might argue that Katz was wrongly decided based on a strict interpretation of the Fourth Amendment.
From an originalist perspective, merely listening to a conversation does not qualify as a search or seizure, thus placing wiretapping outside the Fourth Amendment's scope.
According to this viewpoint, there must be a physical intrusion or confiscation for a Fourth Amendment violation to occur.
Arguments Against Katz
Eavesdropping is distinct from searching and should not be equated with a seizure, suggesting it falls outside the Fourth Amendment's protections.
A phone booth does not qualify as a constitutionally protected area (persons, houses, papers, and effects), further weakening the argument for Fourth Amendment protection in this context.
When new technologies and functions emerge, analyzing their legality requires relying on underlying abstract principles.
Alternative Arguments and the Ninth Amendment
The Ninth Amendment can be invoked to support a broader right to privacy, underlying and complementing the protections provided by the Fourth Amendment.
Consequences and Hypocrisy
Overturning Katz is viewed as undesirable due to the potential negative consequences for privacy rights and surveillance practices.
Avoiding the issue is seen as hypocritical for those who genuinely advocate for originalism and textualism, as it requires confronting the implications of their interpretative approach.