I. Methods of Constitutional Interpretation:
A. Textual Analysis
1. Language – what does the language say
2. Original Intent / Original Meaning
Original Intent – what was the intent of the framers?
For the Body of the Constitution and for the first 10 Amendments what was the intent of the framers of Constitution). For Amendments (13, 14, 15) what was the intent of the framers of these particular Amendments?
Original Intent, however, is difficult to discern, b/c: 1. Records are bad; 2. There is conflicting intent in any legislative body when you are trying to pass something. Therefore this is NOT A GREAT SOURCE FOR ORIGINAL INTERPRETATION.
Original Meaning (the current trend in Originalism) – Looks to the original meaning of the terms and phrases at the time of the framing.
Therefore, for the first 10 Amends and body of the Const what was the original meaning of the textual terms and phrases. For example what did the word Commerce mean at the time of the framing, and we mean THE GENERAL meaning. 1. Use the dictionary definition at the time of the framing for say the words used in the body of the Constitution. Or, what did ‘equal protection’ or ‘due process’ mean at the time of the framing of the 14th Amendment in a dictionary.
3. Where did the clause occur in the document?
Ex. Suspension Clause (suspension of habeus corpus) appears in Art I, under Congressional powers; and so when Lincoln tries to expend habeus corpus (his powers are under Art II), at least one justice of the court says NO, that is an article II power.
4. Look to what is around the phrase you are examining.
Ex. when we look at the 14th, look at the 13th and 15th. There is a “Unity of Purpose” of these Amendments.
5. Look at other provisions within the text of the document.
Ex. When looking at the 10th to see if Congress’ powers infringe on the police powers of the States, focus on the 10th Amend to see how Congress relates to the States in Commerce regulation. Over time, the Court has given different substantive meaning to the 10th. At times the 10th is said to be a truism, and have no substantive content and other times it said to have substance and tell us about Fed and State relationships, and that there can therefore be a violation of the 10th.
B. Analysis Based Upon the Theory and Structure of Government
1. The Nature of a Government in general. What does a sovereign do?
A – those things that are enumerated in a Constitution
B – those things that are a reasonable means to an end. Ex. Think of McCulloch, the national bank case; the bank is not mentioned in the Const, but it is a reasonable means to the taxing power and the spending power and the power to raise and support armies, as well as others.
2.Nature of a Federation of States (such as the Right to Travel as a POI of the 14th. *NOTE WHENEVER you talk about the 4th Amend it is PAI – privileges and immunities, not or*
A citizen of the US has to travel across many states to reach the Federal Gov capital in the Saenz v. Roe Case (1999 case concerning State welfare rights). This right derives from the right vested from citizenship in the collective states, ie the Nation.
C. Prudential and Consequentialist Analysis
1. The bad and good consequences that would flow from the decision of the Court
2. Think about the bad and good consequences that would flow from a particular branch making the decision (ie Should the Leg, Judiciary, and Executive make the decision?
Judicial say over Congress or the Executive). Great example during war time is the power of the Executive to act on threats upon the country. The Executive is uniquely placed to do this b/c it is not a large legislative body like Congress or the Court, which would have to get a whole session together to get a meeting of the minds. The Executive can act quickly.
Other examples: Marbury v. Madison (Judiciary should be the decision maker) or the Prize Cases (the Executive should be the decision maker) or Wickard (Congress should be the decision maker)
D. Historical Analysis
1. Look at the purpose of the clause; what was it designed to achieve?
Look at the historical context of say the Contract Clause. Its historical purpose, as it was enacted for a particular purpose, can give light to its modern interpretation.
2. Original Intent of the Clause in the spirit of Original Intent.
3. Look at the historical context. What was the historical context around the meaning of the Contract Clause, and why was it enacted in the first place?
4. The Historical Practice prior to the adoption. Think about the Suspension Clause and the Writ of Habeus Corpus. The Court in interpreting the Suspension Clause in the Constitution will look to the practice prior to the existence of the Constitution with regard to its meaning to determine the contemporary meaning of the Suspension Clause should be.
E. Precedent and Practice
his unmediated relationship to the Federal Gov; it is not mediated through the States, b/c the Citizens themselves are the constituent parts. ‘We the People’ in the Preamble to the Const. The people have a right to form government.
Sources of Congressional Authority:
Congress gets its authority from authority in Art I Sec 8, sets up the limited enumerated powers – including the Necessary and Proper Clause (its sweep and use as seen under McCulloch), Art I Sec 9 the limitations on Fed Congressional Powers as well as the Bill of Rights (the first 10 Amendments). Particularly, the 9th says that there may be other powers not reserved, and the 10th finds that anything not given to fed is to states.
Separation of Powers:
Art I
Congress – power to make laws
Art II
Executive – power to enforce and execute laws
Art III
Judiciary – the power to resolve disputes under the law and treaties (AND THE POWER TO INTERPRET THE LAWS – giving rise to the idea of Judicial Review)
A. The Arguments:
Bank Arguments:
1. Madison (anti federal bank)
1. (Historical) The power to create the bank was considered by the framers (Madison was at the framing!) and rejected.
2. (Nature of Government) The fed gov is a gov of limited enumerated powers; and the fed bank is not one of them, and therefore there is no power to create one.
3. (Textual) There is no textual support for this in the constitution to support the charter of a bank. Even if we look to the taxing and borrowing powers, the Necessary and Proper Clause does not get us to allow the creation of the federal bank.
4. (Precedent) The former national bank was chartered out of NECESSITY and that there is no necessity here.
2. Attorney Gen Randolph (anti-bank)
1. (Prudential Argument) – If we allow Congress the power to charter the bank, we allow congress the power to do anything as the means to the ends to a power in the Constitution. Slippery Slope type of argument.
2. (Textual) Same as Madison’s.