Methods of Constitutional Interpretation
1) text: looking within the 4 corners of the document
2) theory & structure: looking to the basic & theoretical structure of what the constitution is trying to set up
3) consequences: looking to the consequences of certain interpretations
4) history: what the framers of the constitution meant at the time of its’ creation. What did the authour’s intend when writing the text?
5) precedent: how the constitution has been interpreted in the past
7)national ethos/fundamental values: the fundamental values of the US and what values should be promoted
Robert Cover: when law and morality conflict (page 156)
1) apply the law (even if injustice)
2) apply morality (ignore the lawà but than what is the value of law) (whose morals prevail)
3) resign
4) cheat (intrepret the law in such a way as to resolve the conflict in the moral manner)
BASIC CONSTITUTIONAL HISTORY:
Settlers from Europe brought the notion of a CONSITUTION
US Constitution:
1776: ratified Constitution
1777: ratified the Articles of Confederation (made by the Continental Congress)
1787: revised Constitutionà this was done via an unconstitutional manner
In passing the Constitution, the Federalists promised to the Anti-Federalists that they would create a Bill of Rights (BOR)à the first 10 amendments= BOR
Differences between US Constitution and English Constitution:
1) US Constitution is WRITTEN whereas, the English Constitution is NOT written
à English Constitution is more like the common law.
2) Popular Sovereignty
à the power lies in the people of the US, not in a monarch or other leader
3) Federalism
à 2 governments operating over the same territory. This baffle people abroad
4) separation of powers between executive, Congressional, and judicial branches of government
CONSTITUTION
Preamble:
“more perfect”… reminiscent of the merging of Parliament and Scotland
à merging to create a union rather than a conglomerate of individual states
***Note: Lincoln references the “more perfect” union in his speech re succession***
Article 1: Legislative Powers
à “herein granted…” This indicates that the powers are finite (this is unlike the articles which describe the executive and judicial powers)
Section 8: Main Powers
à enumerates powers of Congress
à NECESSARY AND PROPER CLAUSE-article 1; section 8, subsection 18: Congress may pass all laws that are necessary and proper to carry out any of the foregoing (enumerated) powers.
Section 9: NOT Powers of Congress
Section 10: Things That States CANNOT DO
Article 2: Executive Powers
à NOT limited like in article 1
Discusses th
The authority falls under the NECESSARY AND PROPER clause
à support a very broad reading
To deny Congress this ability would be fatal to the just and indispensable authority of the US
This would aid in collecting taxes, providing loans
Attorney General: UNCONSTITUTIONAL
Similar attitude as Madison
If Congress can do this, than they can do anything
Jefferson: UNCONSTITUIONAL
This right is reserved for the states
If Congress can do this= boundless power
This is giving too much power to Congressà slippery slopeà what would happen next
First and Second Banks of the US:
The First Bank was createdà 1811chater requires renewalà Congress does NOT renew charter
1815, during the presidency of Madison, Congress passes a bill for the second bankà Madison veto’s the bill, NOT b/c of the constitutionality as experience has shown the bank to be constitutional
1816 Madison signs a bill to create the Second Bank of the US. This bank is HUGELY unpopular!!!
