Law and society

1. Constitution
and
Legislation
Nuances in interpretation

2. McCulloch v. Maryland
• In a unanimous decision, the Court held that
Congress had the power to incorporate the bank
and that Maryland could not tax instruments of the
national government employed in the execution of
constitutional powers.
• Pursuant to the Necessary and Proper Clause (Art. I,
Section 8), Chief Justice Marshall noted that
Congress possessed powers not explicitly outlined in
the U.S. Constitution. Marshall redefined
“necessary” to mean “appropriate and legitimate,”
covering all methods for furthering objectives
covered by the enumerated powers.
• Marshall also held that while the states retained the
power of taxation, the Constitution and the laws
made in pursuance thereof are supreme and cannot
be controlled by the states.

3. Formational difference
• Constitution was made by the Constituent Assembly:
• Total strength of the assembly: 389
• 296 seats for British India and 93 seats to princely states
• 292 seats allocated for British India were to be from eleven governor’s provinces and four from Chief commissioner’s provinces
• Seats were allocated based in proportion to their respective population.
• Seats allocated to each British province were to be decided among the three principal communities- Muslims, Sikhs and general
• Representatives of each communities were to be elected by members of that community in the provincial legislative assembly and voting
was to be by the method of proportional representation by means of single transferrable vote
• Representatives of princely states were to be nominated by head of these princely states

4. Repealing the
Constitution. Is it
possible?
Art 368
It stand amended-
‘Change’ used in
proviso-substitute,
or repeal is not
possible

5. Repealing a statute! Is it possible? Art 245
Repealing an entire statute is
very much possible
1
Replacing a statute is not
mandatory
2

6. Can we have multiple
constitution?
No, but we have many
statutes

7. Theories of
constitutional
interpretation
9.2.1. Originalist
approach
9.2.2. Living
constitution
9.2.3. Dynamic
interpretation

8. Reasons to
be an
Originalist!
1. Originalism reduces the likelihood that unelected judges
will seize the reigns of power from elected
representatives.
2. Originalism in the long run better preserves the
authority of the Court.
3. Non-originalism allows too much room for judges to
impose their own subjective and elitist values. Judges need
neutral, objective criteria to make legitimate
decisions. The understanding of the framers and ratifiers
of a constitutional clause provide those neutral criteria.

9. Originalism…
4. Lochner vs. New York (widely considered to be a bad non-
originalist decision).
5. Leaving it to the people to amend their Constitution when need
be promotes serious public debate about government and its
limitations.
6. Originalism better respects the notion of the Constitution as a
binding contract. (Social contract theory)
7. If a constitutional amendment passed today, we would expect a
court five years from now to ask what we intended to adopt. [Can
the same be said for a court 100 or 200 years from now?]
8. Originalism more often forces legislatures to reconsider and
possibly repeal or amend their own bad laws, rather than to leave
it to the courts to get rid of them.

10. Facts of the case
The state of New York enacted a statute known as the Bakeshop Act, which forbid bakers to
work more than 60 hours a week or 10 hours a day.
Lochner was accused of permitting an employee to work more than 60 hours in one week. The
first charge resulted in a fine of $25, and a second charge a few years later resulted in a fine of
$50.
While Lochner did not challenge his first conviction, he appealed the second, but was denied in
state court.
Before the Supreme Court, he argued that the Fourteenth Amendment should have been
interpreted to contain the freedom to contract among the rights encompassed by substantive
due process.

11. Question…and a departure from originalism…
Does the Bakeshop Act violate the liberty protected by the Due Process
Clause of the Fourteenth Amendment?
The New York law violated "liberty of contract" protected by the Due
Process Clause of the Fourteenth Amendment
The majority reasoned that the Bakeshop Act had no rational basis
because long working hours did not dramatically undermine the health of
employees, and baking is not particularly dangerous.

12. Social Contract Theory
For Hobbes, the necessity of an absolute authority, in the form of a Sovereign,
followed from the utter brutality of the State of Nature. The State of Nature
was completely intolerable, and so rational men would be willing to submit
themselves even to absolute authority in order to escape it.
Property plays an essential role in Locke’s argument for civil government and
the contract that establishes it. According to Locke, private property is created
when a person mixes his labor with the raw materials of nature.

13. Originalist Judges Justice Hugo Black
Justice Antonin Scalia
Justice Clarence Thomas
Judge Robert Bork

14. Robert Bork Making the Case for Originalism:
• If the Constitution is law, then presumably its meaning, like that of all other law, is the
meaning the lawmakers were understood to have intended.
• If the Constitution is law, then presumably, like all other law, the meaning the
lawmakers intended is as binding upon judges as it is upon legislatures and executives.
• There is no other sense in which the Constitution can be what article VI proclaims it to
be: "Law...." This means, of course, that a judge, no matter on what court he sits, may
never create new constitutional rights or destroy old ones. Any time he does so, he
violates not only the limits to his own authority but, and for that reason, also violates
the rights of the legislature and the people....
• the philosophy of original understanding is thus a necessary inference from the
structure of government apparent on the face of the Constitution.