AJ 025 Chapter 3: AJ_25_-_Chapter_3

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AJ 25
Cos
Constitutional law
Matter of Interpretation
Scalia: Originalist approach
Arrived at a court when people were results-oriented; saw the constitution as a
living or evolving document that must adapt to the times
Insisted that the times must form to the constitution
Primacy must be accorded to the text, history and structure must be interpreted
Judge must apply Constitutional interpretation to the statute
Specific text should be followed, or if it is ambiguous, then turning to what it
meant to the society that adopted it
Judges should be governed only by the text of the constitution, and not their own
education
Judges will mistake their own predilections for the law
US v. Church of the Holy Trinity
A fine to employ someone from a foreign nation to come work here
Governed by the text, not what the legislature thinks we should’ve done
Contrast to Breyer: explicit critique of the original meaning or textualist jurisprudence of
Scalia
Common law: judges try to reach the just result.
If you have no law that you’re interpreting, and you’re only looking at facts it
makes sense. But when your looking at a statute, you’re acting like a common law
judge but in a civil law nature
The dangers for judges who apply the Mr. Fix it” approach, how can I get to the right
result when Congress has already attempted to do it
The Common law makes sense but it is in conflict with modern democracy (pg. 9)
District of Columbia v. Heller: held that the right to bear arms in terms of self-defense
Collective right of the militia to bear arms
Some argued the second amendment was a dead letter
Scalia rejected: the right was personal and pre-existing
Public meaning approach led him to a conservative conclusion
Harmelin v. Michigan: Scalia reaches a conservative conclusion (Life in prison was
disproportionate)
Scalia wrote the judgement of the court (and Thomas): 8th Amendment isn’t
violated
Scalia looks like a big liberal in most criminal cases
Fierce defender of 4th Amendment
Kyllo v. United States: overturning the conviction of someone growing marijuana
(thermal imaging device was unreasonable search)
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