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Constitutional Law I
University of Illinois School of Law
Solum, Lawrence B.

Constitutional Interpretation
A.     Plain Meaning Theory: In cases where the meaning of the constitutional text is plain, we should follow the directive articulated in the text. The problem with Plain Meaning Theory is that the text is not always clear. Many words/phrases in the Constitution are either ambiguous or vague.
1.      Ambiguity: The problem of multiple meanings. 
a.       Two or more distinct meanings of the text. Multiple meanings for the same term. Which meaning applies for the same word? E.g. school – school of fish, school of law? Domestic violence-spousal abuse or violence within the community
b.      The right one to be applied may be found by looking at context. 
2.      Vagueness: The problem of “borderline cases.” 
a.       Concepts with indefinite application to a particular case. There are cases when the term applies, does not apply, or unsure if it does.
b.      The General/abstract terms are usually vague. E.g. necessary. Or cruel and unusual punishment. When is punishment cruel and when is it not cruel?
3.      Intra-textualism: how the same/similar words are used else where in the Constitution
B.     Originalism: Try to resolve by looking at the original intent, meaning and understanding of the text. Meaning is fixed at time it was passed. 
1.      Original Intent 
a.       Focus on original intent of the framers and ratifiers of the constitution. Examination of historical records to determine the purposes, expectations, or beliefs about the writers and ratifiers. 
b.      Problem: Difficult to determine the original beliefs and expectations because the constitution was written by many people and then ratified by an even larger number of people with differing views.
2.      Original Meaning
a.       Looks to how the public would have understood the text at the time it was written. Conventional semantic meaning.
b.      Not necessarily what the purposes were, but what an ordinary person would have understood it to mean at the time it was adopted. The “public at large” means ordinary people at the time the provision in question was ratified – i.e. the public at large in 1789 when referring to provisions in the constitution itself. 
C.     Living Constitutionalism (non-originalism):Non-originalism is the view that courts should go beyond the four corners of the document.
1.      The meaning and application of constitutional provision is not limited to what the framers intended, but changes and evolves over time.
2.      The living constitution undergoes contemporary ratification by the people electing officials who are in charge of legislation.
D.     The Debate Between Originalism and Nonorginalism
1.      Originalism is the view that judges deciding constitutional issues should confine themselves to enforcing norms that are stated or clearly implicit in the written Constitution.
a.       Believe that the court should find a right to exist in the Constitution only if it is expressly stated in the text or was clearly intended by its framers. If it is silent, then it is for the legislature to decide the law.
b.      Const. evolves solely by amendment. I.e. argue that it was wrong for the Court to do away with state laws that prohibited abortion. Because the Const. is silent about this right, then this matter should be left to the legislatures to deem if they are appropriate. If there is to be a right, then the Constitution is to be amended. Originalists can be strict (literal & precise) originalists or moderate (general purpose)
c.       2 primary arguments
 
1)      The very nature of interpreting a document requires that its meaning be limited to its specific text and its framers’ intentions
2)      Argue that this approach is desirable to constrain the power of unelected judges in a democratic society. 
                                                                                                                                                  i.      Cautious that unelected judges should not overturn the decisions of popularly accountable officials. 
                                                                                                                                                ii.      Thus, the Court is justified in invalidating gov’t decisions only when it is following values clearly state in the text or intent by the framers. 
2.      Non-Originalism believes it permissible for court to interpret the Constitution to protect rights that are not expressly or clearly intended. 
a.       Can evolve through amendment or interpretation. Believe it was OK for Court to interpret ‘liberty’ to include reproductive rights. The meaning and application of constitutional provision is not limited to what the framers intended, but should also evolve through interpretation.
b.      3 major arguments
1)      It is desirable to have the Const. evolve by interpretation and not only by amendment. Amendment process is cumbersome, thus interpretation is necessary to meet the needs of a constantly changing society. I.e. framers may have been for racial segregation.
2)      There is not an unambiguous knowable framers’ intent that can be found to resolve constitutional question s. Instead the process of determining the framers’ intent invariably is a process of interpretation, which is affected by contemporary values. No such thing as a collective intent b/c there were so many people/parties that ratified it. 
3)      Third, Nonoriginalism is the preferable method of interpretation because it is the approach intended by the framers.
             I.      The Foundings. 
Section A: Background Assumptions of the Constitution. 
1. Natural Rights
E.      After English Civil War, civil order broke down and that led to miserable condition resulted by social and religious conflict. Charles II went into exile with his tutor, Thomas Hobbs. 
1.      Hobb’s Social Contract Theory: Leviathan
a.       Begins with construct of state of nature = no government. 
b.      All Human beings are motivated to survive
1)      Problem with social interaction
2)      Best defense is good offense. Preempted strike
3)      Much violence. Even though violence doesn’t occur, one will be in fear of violence
4)      State of nature = state of war
5)      To do better, we need absolute sovereignty b/c if we divide the power, there will exist state of nature among the divided powers
2.      John Locke’s Social Contract Theory: Restoration
a.       Under the laws of nature, people have a moral obligation to act so as not to harm the life, health, liberty, and property of others. People will develop obligations to one another. State of nature will create stable patterns of social cooperation 
b.      In the absence of government, each individual person has the power to enforce these moral obligations, either by acting preemptively to prevent violations or by punishing violators.
c.       State of nature becomes the state of inconvenience. 
d.      Thus, people form governments (“social contracts”) to better protect their natural rights.
e.       Because governments are created to enforce moral obligations that relate to natural ri

olm v. Georgia (1793) p.5. If GA showed up.
1.      GA: we are sovereignty and are not subject to suitChisholm: Article 3 Section 2 “Judicial power shall extend to … between a state and citizens of another state.” The constitution is the supreme law and triumphs GA sovereign immunityGA: the Constitution did not take away the state sovereignty in 1789 when it was ratified. No clause explicitly takes away the state sovereignty. Chisholm: the States gave up some rights. When the Constitution was ratified, it transferred sovereignty to people GA: The Constitution did not say that. We would have never consented to that. Chisholm: in 1773, King George was sovereign. We rejected that by people’s blood during the Revolutionary War. People can sue a mere state.
B.     After this case, the 11th Amendment was proposed and ratified.
1.      Some say this doesn’t say people are not sovereignty. This only is a technical detail. 
2.      some say this transfers sovereignty
3. Fundamental Principles v. Expressed Constraints
A.     Calder v. Bull (1798) p.6: ex post facto laws apply to changes in substantive law, especially criminal law, but not changes in procedural law. 
1.      Justice Chase: Natural law. Principle is built into the idea of republican government and does not need to be written down. 
2.      Justice Iredell: Legal positivism. Cts. Do not have the power to decide natural rights/law/first principle. Cts. Can only invalidate if expressed provision of the Constitution is invalidated. At least in intention with the 9th Amendment.
4. The Alien and Sedition Acts of 1789 p.7: underlying fear of instability by foreign forces and also domestic conflicts between the federalists and anti-federalists (their connection to France)
A.     The Alien Acts
1.      The Alien Friends Act: radical. President alone can deport people whose country we are not at war by saying “I believe he is a threat to our national security”
2.      the Alien Enemy Act
B.     The Sedition Act
1.      Section 1: punishment for people who obstruct security
2.      Section 2: controversial. It’s crime to say something false or scandalous about government of government officials. 
C.     Constitutional arguments
1.      For: we can regulate commerce with foreign nation. People are commerce against: that’s not the meaning of “commerce.” It means trade rights in goods For: Congress has power to suppress insurrection Against: Congress does not have the power to prevent. “Prevent” broadens the scope of power. 
2.      Those arguments led to VA (Madison) and KY (Jefferson) Resolutions. Both anti-federalists. Other states did not join in. If they did, that could have created a new institutional mechanism to nullify federal laws with no cts. Involvement. VA could round up its army and stop the Alien Acts execution. But that naked power struggle never happened.