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Contemporary Supreme Court Approaches to Constitutional Interpretation

Ralph A. Rossum, Claremont McKenna College
February 25, 2006

Ralph A. Rossum is Henry Salvatori Professor of Political Philosophy and American Constitutionalism at Claremont McKenna College in Claremont, California where he also serves as the Director of the Rose Institute of State and Local Government. He is the author of several books including The American Founding: Politics, Statesmanship, and the Constitution; Federalism, the Supreme Court, and the Seventeenth Amendment: The Irony of Constitutional Democracy; and, most recently, Antonin Scalia’¬ís Jurisprudence: Text and Tradition.

Focus: This seminar will focus on the Senate confirmation hearings of John Roberts and Samuel Alito and the questions they were asked concerning their general jurisprudential approach to the meaning of the Constitution and its various provisions and amendments. Through the use of various opinions and brief essays, the seminar will focus on the following seven approaches to constitutional interpretation (and the justice with whom each approach is most clearly associated): Textualism (Scalia), Reliance on Precedent (Marshall and Kennedy) Constitutional Doctrine (O’Connor), Belief in a Living Constitution (Souter), Reliance on Human Dignity (Brennan), Reliance on Foreign Courts and Law (Stevens and Kennedy), and Original Intent/Original Understanding (Thomas).

Readings:

Textualism:

  • Justice Scalia’s majority opinion in Coy v. Iowa (1988).
  • Chief Justice Taft’s majority opinion and Justice Brandeis’s dissent in Olmstead v. United States (1928).
  • Justice Black’s dissent in Katz v. United States(1967).

Reliance on Precedent:

  • The debate between Justices Marshall (defending precedent) and Scalia (attacking precedent) in Payne v. Tennessee (1991).
  • The defense in the plurality opinion (O’Connor, Kennedy, Souter) of precedent, even when the justices believe that the precedent was wrongly decided in Planned Parenthood v. Casey(1992).

Constitutional Doctrine:

  • Justice O’Connor’s substitution of the “endorsement” theory for the words, “an establishment of religion” in Lynch v. Donnelly(1984).

The Living Constitution:

  • Justice Holmes’s majority opinion in Missouri v. Holland (1920).
  • Justice Souter’s dissent in Alden v. Maine(1999).

Reliance on Human Dignity:

  • Justice Brennan in Furman v. Georgia (1972) and Gregg v. Georgia (1976).
  • Brennan’s Text and Teaching Address at Georgetown University.

Foreign Courts and Law:

  • The debate between Justices Kennedy (for the majority) and Scalia (in dissent in the juvenile death penalty case of Roper v. Simmons(2005) and the discussion between Justices Breyer and Scalia at the Washington School of Law at American University on January 13, 2005.

Original Intent/Original Understanding:

  • Chapter One of The American Constitution (6th edition, by Ralph A. Rossum and G. Alan Tarr), spells out the Original Intent/Original Understanding of the framers in what they call a “Means Ends Approach” to constitutional interpretation which asks: What were the ends that the framers of the United States sought to achieve, and what were the means they employed to achieve these ends?
  • Justice Thomas’s concurrence in Adarand Constructors v. Pena(1995).

Additional Readings:

  • Ralph A. Rossum, Antonin Scalia’s Jurisprudence: Text and Tradition, Chapters 2 and 5
  • Antonin Scalia, A Matter of Interpretation, “Common-Law Courts in a Civil Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws,” pp. 1-47.
  • Joseph Story, Commentaries on the Constitution of the United States, Vol. 1 (Boston: Hilliard, Gray and Company, 1833), “On Interpretation.”
  • Ralph A. Rossum and G. Alan Tarr, American Constitutional Law, Vol. I. The Structure of Government (6th Edition, Belmont, CA.: Wadsworth, 2003), Chapter One: “Interpretation of the Constitution.”
  • Sanford Levinson, “On Interpretation: The Adultery Clause of the Ten Commandments,” Southern California Law Review, Vol. 58, No. 2 (January 1985), pp, 719-725.

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