The Path of Constitutional Law

Charles D. Kelso - Professor of Law , Pacific McGeorge School of Law
R. Randall Kelso - Professor of Law , South Texas College of Law
Vandeplas Publishing, 2007
ISBN 978-1-60042-020-6




Table of Contents

Preliminary Materials

The Material of Judicial Decisionmaking

§ 1.1 Introduction to the Path of Constitutional Law Decisionmaking. § 1.2 Understanding the Causes of Constitutional Interpretation. § 1.2.1 Aristotle's Four Causes Used to Explain Any Thing or Situation: Material, Formal, Efficient, and Final Causes. § 1.2.2 Application of a Causal Analysis in the Four Parts of This Book. § 1.3 Use of the Four Causes in Each Part of This Book. § 1.3.1 Part I - The Materials of Constitutional Law. § 1.3.2 Part II - The Form or Shape of Constitutional Law . §...

The Form or shape of Judicial Decisionmaking

§ 2.1 Introduction to the Form or Shape of Judicial Decisionmaking. § 2.2 The Nature of Law. § 2.2.1 Analytic versus Functional Approaches to the Nature of Law. § 2.2.2 Discussion of Analytic versus Functional Approaches in Terms of the Four Causes. § 2.2.2.1 Material Causes and the Nature of Law. § 2.2.2.2 Formal Causes and the Nature of Law. § 2.2.2.3 Efficient Causes and the Nature of Law. § 2.2.2.4 Final Causes and the Nature of Law. § 2.3 The Nature of the Judicial Task. § 2.3.1 Positivi...

Efficient Causes: The four Decisionmaking Styles

§ 3.1 Formalism: The Analytic/Positivist Approach. § 3.2 Holmesian: A Functional/Positivist Approach. § 3.3 Instrumentalism: A Functional/Normative Approach. § 3.4 Natural Law: The Analytic/Normative Approach.

Final Cause: Structure of Law as Determined by Judges

§ 4.1 Common-Law versus Civil-Law Countries: Induction versus Deduction. § 4.2 The Form or Shape of Legal Doctrine. § 4.2.1 Categorical Rights versus Balancing Tests. § 4.2.2 Elements versus Factors. § 4.2.3 Rules versus Standards. § 4.2.4 Issues of Fact versus Issues of Law. § 4.3 Use of Judicial Precedents. § 4.3.1 General Observations on the Theory of Precedent. § 4.3.2 Four Different Reasons to Follow Precedents: Precedent is Right, Is Settled Law, Substantial Reliance Exists, or No Speci...

Part I: The Material Of Constitutional Law

The Form or Shape of Constitutional Law

Material Sources of Constitutional Interpretation

§ 5.1 Introduction to the Material Sources of Constitutional Interpretation. § 5.2 Contemporaneous Sources of Meaning. § 5.2.1 Text. § 5.2.2 Context. § 5.2.2.1 Basic Elements of Context. A. Verbal Maxims. B. Policy Maxims. C. Related Provisions and Other Contextual Considerations. § 5.2.2.2 Structure. A. Judicial Review. B. Federalism. C. Separation of Powers. D. Checks and Balances. § 5.2.3 History. § 5.2.3.1 Introduction. § 5.2.3.2 Specific versus General Historical Evidence. § 5.2.3.3 Spec...

The Form or Shape of Constitutional Interpretation

§ 6.1 Introduction to Defining Constitutional Interpretation. § 6.2 Treatment of Contemporaneous Sources of Interpretation. § 6.2.1 Treatment of Text. § 6.2.1.1 The Debate Between Subjective versus Objective Interpretation of Text. § 6.2.1.2 The Debate Between Literal and Purposive Interpretation of Text. § 6.2.2 Treatment of Context. § 6.2.2.1 Treatment of Context: Restrictive versus Receptive Use. § 6.2.2.2 Treatment of Judicial Review. § 6.2.2.3 Treatment of Federalism. § 6.2.2.4 Treatment...

Efficient Causes of Constitutional Interpretation

§ 7.1 Deductive versus Inductive Reasoning. § 7.2 The Form or Shape of Constitutional Law Doctrine. § 7.2.1 Balancing Tests in Constitutional Doctrine: The "Base Plus Six" Model of Review. § 7.2.2 Categorical Tests in Constitutional Doctrine. § 7.2.3 Rules versus Standards in Constitutional Doctrine. § 7.2.4 Law versus Fact in Constitutional Doctrine. §7.3 Dealing with Precedents. § 7.3.1 Strict versus Loose Use of Precedent. § 7.3.1.1 Cases Focusing on the Core Holding of Precedent, Not its ...

The Purposes or Ends of Constitutional Interpretation

§ 8.1 Allocating Government Power: Forming a More Perfect Union. § 8.1.1 Judicial Review. § 8.1.2 Federalism. § 8.1.3 Separation of Powers. § 8.1.4 Checks and Balances. § 8.2 Producing Well-Formed Doctrine that Treats Constitutional Text and Precedents in a Principled Manner: Establishing Justice. § 8.3 Reconciling Government Power and Individual Rights: Securing the Blessings of Liberty to Ourselves and Our Posterity. § 8.3.1 Securing the Blessings of Liberty Under the Civil War Amendments. ...

Part II: The Form Or Shape Of Constitutional Law

The Efficient Causes of Constitutional Law

Formalist Constitutional Interpretation

§ 9.1 Introduction to Formalist Decisionmaking. § 9.2 Defining the Formalist Style of Constitutional Interpretation. § 9.2.1 Treatment of Contemporaneous Sources of Interpretation. § 9.2.1.1 Treatment of Text. § 9.2.1.2 Treatment of Context. § 9.2.1.3 Treatment of History. § 9.2.2 Treatment of Subsequent Developments. § 9.2.2.1 Legislative, Executive, and Social Practice. § 9.2.2.2 Judicial Precedents. § 9.2.2.3 Prudential Considerations. § 9.3 Variations in the Formalist Approach. § 9.3.1 Su...

Holmesian Constitutional Interpretation

§ 10.1 Introduction to Holmesian Decisionmaking. § 10.2 Defining the Holmesian Style of Constitutional Interpretation. § 10.2.1 Treatment of Contemporaneous Sources of Interpretation. § 10.2.1.1 Treatment of Text. § 10.2.1.2 Treatment of Context. § 10.2.1.3 Treatment of History. § 10.2.2 Treatment of Subsequent Developments. § 10.2.2.1 Legislative, Executive, and Social Practice. § 10.2.2.2 Judicial Precedents. § 10.2.2.3 Prudential Considerations. § 10.3 Variations in the Holmesian Approach....

Instrumentalist Constitutional Interpretation

§ 11.1 Introduction to Instrumentalist Decisionmaking. § 11.2 Defining the Instrumentalist Style of Constitutional Interpretation. § 11.2.1 Treatment of Contemporaneous Sources of Interpretation. § 11.2.1.1 Treatment of Text. § 11.2.1.2 Treatment of Context. § 11.2.1.3 Treatment of History. § 11.2.2 Treatment of Subsequent Developments. § 11.2.2.1 Legislative, Executive & Social Practice. § 11.2.2.2 Judicial Precedents. § 11.2.2.3 Prudential Considerations. § 11.3 Variations in the Instrument...

Natural Law Constitutional Interpretation

§ 12.1 Introduction to Natural Law Decisionmaking. § 12.2 Defining the Natural Law Style of Constitutional Interpretation. § 12.2.1 Treatment of Contemporaneous Sources of Interpretation. § 12.2.1.1 Treatment of Text. § 12.2.1.2 Treatment of Context. § 12.2.1.3 Treatment of History. § 12.2.2 Treatment of Subsequent Developments. § 12.2.2.1 Legislative, Executive, and Social Practice. § 12.2.2.2 Judicial Precedents. § 12.2.2.3 Prudential Considerations. § 12.3 Variations in the Natural Law App...

Formal Causes and the Five Eras of American Law

§ 13.1 Classic Account of American Legal History: Five Eras of American Law. § 13.2 A Similar Critical Legal Studies Version of American Legal History. § 13.3 Results of The Decisionmaking Styles: Constitutional Law Doctrine. § 13.4 Decisionmaking Styles of the Justices: Current and Recent Past.

Material Causes of the Five Eras of American Law

§ 14.1 Defining Four Approaches to Social and Political Issues. § 14.2 Five Political Eras of American History and Supreme Court Doctrine. § 14.2.1 The Original Natural Law Era: 1789-1873. § 14.2.2 The Formalist Era: 1873-1937. § 14.2.3 The Holmesian Era: 1937-1954. § 14.2.4 The Instrumentalist Era: 1954-1986. § 14.2.5 The Modern Natural Law Era: 1986-Present. § 14.3 Further Details on the Modern Era of American Politics: 1986-2000. § 14.4 Reflections on the Nature of Politics and the Supreme...

Efficient Causes of the Five Eras of American Law

§ 15.1 Kinds of Societies in World History. § 15.2 Kohlberg's Six Moral Reasoning Stages. § 15.3 Piaget's Theory of Individual Cognitive Developmental Stages,Selman's Social Perspectivism, and Kohlberg's Moral Reasoning Stages. § 15.4 Moral Reasoning and Societal Development in America and Elsewhere. § 15.4.1 Cognitive Development and Moral Reasoning Stages as Efficient Causes of the Five Eras of American Judicial Decisionmaking. § 15.4.2 Moral Reasoning and the Eras of Societies In World His...

Final Causes and the Five Eras of American Law

§ 16.1 Material Base of Moral Reasoning: Faith in Custom or Reason. § 16.2 The Form or Shape of Emerging Stage 6 Moral Reasoning: § 16.2.1 The Philosophic Base of Stage 6 Natural Law Reasoning. § 16.2.2 The Enlightenment Form or Shape of Stage 6 Natural Law Reasoning. § 16.2.3 The Religious Form or Shape of Stage 6 Natural Law Reasoning. § 16.2.4 The Issue of Sexual Orientation as an Example of Stage 6 Reasoning from Both an Enlightenment and Religious Natural Law Perspective. § 16.3 Stage 6 ...

Part III: The Efficient Causes Of Constitutional Law

The Final Cause of Constitutional Law

Structural Issues in Constitutional Law

Judicial Review

§ 17.1 Foundations of Judicial Review. § 17.1.1 The Nature and Basis of Judicial Review. § 17.1.2 Judicial Review During the Original Natural Law Era: 1789-1873. § 17.1.2.1 Marbury v. Madison versus the Tripartite Theory of Judicial Review. § 17.1.2.2 Martin v. Hunter's Lessee and Federal Court Supremacy. § 17.1.3.1 Judicial Review During the Formalist Era: 1873-1937. § 17.1.3.2 Judicial Review During the Holmesian Era: 1937-1954. § 17.1.3.3 Judicial Review During the Instrumentalist Era: 195...

Federalism

§ 18.1 National Power: Its Nature and Scope. § 18.1.1 Background for Studying the Nature of Federal Power: Text, Structure of the Constitution, and History. § 18.1.2 The Natural Law Approach: The Nature of Federal Power as Spelled Out in McCulloch v. Maryland. § 18.2 Congressional Power to Regulate Under the Commerce Clause. § 18.2.1 The Natural Law Approach: Broad Power to Regulate Commercial Activity Which Concerns More States Than One. § 18.2.1.1 The Marshall Court: The Concurrent Power Ap...

The Separation of Powers

§ 19.1 The General Nature of the Separation of Powers Doctrine. § 19.2 Congressional Delegation of Legislative Power to the President, Administrative Agencies, or Special Commissions. § 19.3 Presidential Power Over National Policy. § 19.3.1 General Observations. § 19.3.2 International Matters. § 19.3.3 War and National Defense. § 19.3.4 Domestic Policymaking. § 19.3.5 The Pardon Power. § 19.4 Legislative Power Over National Policy. § 19.4.1 General Observations. § 19.4.2 Unconstitutional Atte...

Additional Checks and Balances

§ 20.1. Separation of Powers Checks and Balances. § 20.1.1 Having Some Constitutional Government Structure in Place and Operating. § 20.1.1.1 Ensuring the Continuity of Government. § 20.1.1.2 The 1781 Articles of Confederation and Their Replacement by the 1789 Constitution. § 20.1.1.3 Amending the United States Constitution. § 20.1.2 Issues in the Election of Members of the Federal Government. § 20.1.2.1 Presidential Election. § 20.1.2.2 Congressional Elections. § 20.1.3 Impeachment Power of ...

Individual Rights Doctrines Generally

Individual Rights Protection Under the Constitution

§ 21.1 The State Action Requirement. § 21.1.1 Introduction. § 21.1.2 Historical Development of the State Action Doctrine. § 21.1.2.1 The Original Natural Law Era. § 21.1.2.2 The Formalist Era. § 21.1.2.3 The Holmesian Era. § 21.1.2.4 The Instrumentalist Era. § 21.1.2.5 The Modern Natural Law Era. § 21.1.2.6 "State Action" Based on Laws that Repeal Existing Laws or Restrict Future Legal Change. § 21.2 Structure of Individual Rights Doctrine Once State Action is Established. § 21.2.1 General Co...

Economic Rights: the Contracts and Takings Clauses

§ 22.1 The Contracts Clause. § 22.1.1 The Original Natural Law Era. § 22.1.2 The Formalist Era. § 22.1.3 The Holmesian Era. § 22.1.4 The Instrumentalist Era. § 22.1.5 The Modern Natural Law Era. § 22.1.6 Federal Impairment of Contracts. § 22.2 The Takings Clause. § 22.2.1 The Original Natural Law Era. § 22.2.2 The Formalist Era. § 22.2.3 The Holmesian Era. § 22.2.4 The Instrumentalist Era. § 22.2.5 The Modern Natural Law Era. § 22.2.5.1 Standards of Review in Modern Takings Clause Cases. § 22...

Non-Economic Individual Rights

§ 23.1 Civil Rights Protections: The Second, Third & Seventh Amendments & The Full Faith and Credit Clause of Article IV, § 1. § 23.1.1 The Second Amendment: Right to Bear Arms. § 23.1.2 The Third Amendment: Protection Against Quartering of Soldiers In Individuals' Homes. § 23.1.3 The Seventh Amendment: Right to Jury Trial in Actions At Common Law. § 23.1.4 The Full Faith and Credit Clause. § 23.2 Criminal Defendants' Rights. § 23.2.1 The Fourth, Fifth, Sixth, and Eighth Amendments. § 23.2.1....

Part IV: The Final Cause Of Constitutional Law

Sub-Part Two: Individual Rights Doctrines Generally


Constitutional Impact of the Ninth Amendment

§ 24.1 The Natural Law Approach. § 24.2 The Formalist Approach. § 24.3 The Holmesian Approach. § 24.4 The Instrumentalist Approach.

Sub-Part Three: Civil War Amendments And Due Process Generally


The Civil War Amendments Generally

§ 25.1 The Thirteenth Amendment. § 25.2 The Fourteenth Amendment's Citizenship Clause. § 25.3 The Fourteenth Amendment's Privileges or Immunities Clause. § 25.4 The Fifteenth Amendment's Ban on Race Discrimination in Voting.

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