Week of August 31 thru September 4: Assignments and Zoom Schedule: Update

 Zoom schedule: 

Wednesday September 2 @ 5 PM (videos 5 & 6) (casebook p. 43-66)

Thursday September 3 @ 5 PM (video 7) (casebook p. 66-76)

I have decided to go with the  alphabetical on call heads up.

For Wednesday those with a last name beginning with a J or a K will be up.

For Thursday those with D, E or F are up.

Assignments (number 4 and the first part of number 5)

 Casebook p.43-66

Casebook p. 66-76;

Class Videos 5, 6 & 7

 

Video 5

https://unl.box.com/s/ug9d6lftye5perksccu2m15htdlw7h52

 

Video 6

https://unl.box.com/s/mkr12reydchne05rbpqb028hevihzb8y

 

Video 7

https://unl.box.com/s/ysm7xo5dbeplujxxpb0d8vxiyrviny0s

 

Art. III (Judicial Power) and Art. VI (Supremacy Clause)

Article III

Section 1.

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

Section 2.

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.

Article VI

....

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

Randy Barnett's Video on Originalism

 Here are a few of my thoughts and notes on Prof. Barnett's talk:

1. The Constitution is not the law that governs us. It "is the law that governs those who govern us." --Randy Barnett 

Those who govern us ought to follow the law that governs them. Each and every person who receives power to govern us has taken an oath to abide by the Constitution. There is "100% consent" by those who govern us to abide by the Constitution. Not to abide by the Constitution as they decide to change it, or as they wish it to be. It would be an "oath to nothing" if Justices swore to abide by their own ideological preferences.

Here by the way is the oath federal judges take:

“I, _________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that 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 on which I am about to enter. So help me God.”

2. The meaning of the Constitution must remain the same until it is changed by the amendment process. The meaning is "fixed" at the time the text is enacted (ratified). Normative principle--Constitutional actors are (and ought be) constrained by that original meaning.

3. New originalism, original meaning originalism: Not framer's intention ("What Would James Madison Do"), but original public meaning of the text as understood by the society that ratified it. Public meaning, communicative content, not subjective intent of James Madison.

4. Interpretation vs. construction. Interpretation seeks to ascertain the original communicative content. Construction is putting that content into legal effect, applying the communicative content to cases that arise. Originalism tells us that whatever doctrines the Court comes up with should be consistent with the original meaning of the text. The original public purpose also should constrain courts. Constitutional doctrine can evolve (change) so long as it is faithful to the original meaning and purpose of the text.

Assignment and Video for Week Two (Week of August 24)

 This is for tomorrow. Just wanted to give you a heads up:

 

 3 Strauss article (link); Ed Whelan article: (link);Sollum Article (link); Brennan Speech (link);
Prof. Randy Barnett on Originalism

 

Video Number 4 Link: 

https://unl.box.com/s/nlldr6uqcw4g6cm8jddfnonvr4vokn6c

Original Public Meaning Originalism vs. The "Common Law Living Constitution"

The “Great Debate” in constitutional law, one that has raged for over 200 years, is this: Should courts interpret the Constitution’s text as it would have been understood by ordinary citizens alive at the time the text was ratified? Or should judges interpret the Constitution as a common law, “living” organism, one meant to evolve to suit the changing needs and values of contemporary American society? 

Originalists believe that if the Constitution must evolve to keep pace with our constantly changing world, we should seek this change through the legitimate amendment process of Article V. Simply put: amendments should come from the people, not the Supreme Court.

However, proponents of a Living Constitution believe that the formal amendment process is too “cumbersome” to keep the Constitution current, and that necessity therefore requires the Supreme Court to preside over the "evolution" of the Constitution from the Bench. For example, if the written Commerce Clause does not give Congress sufficient power to deal with a global economy and contemporary problems such as the health care crisis, then it is the duty of the Court to recognize that the Constitution has evolved to meet our ever-changing political needs. After all, why should contemporary Americans be saddled with the views and philosophies of long-dead white males who had no understanding of the needs and values of America in 2018?

Here is what I would like you all to do for our zoom session. 

Think about the readings and your personal understanding of what it means to have a written Constitution, a Constitution that is the supreme law of the land and invalidates all federal and state laws that are inconsistent with the Constitution, and compile several lists as follows:

1. a list of at least 3 reasons why you support an originalist interpretation of the Constitution 

2.  a list of at least 3 reasons why you support a common law "living" interpretation of the Constitution

3. a list of three arguments against originalism

4. a list of three arguments against common law constitutionalism