University of Texas School of Law
Constitutional Law
Fall 2015
Professor Chesney
II. TYPES OF CONSTITUTIONAL ARGUMENT
A. Originalism – determining what the Constitution means by looking back to some point in time
1. Types
a. Drafters’ Intent – determining the meaning by what the original drafters of the document intended the Constitution to mean
b. Ratifiers’ Intent – determining the meaning by what the people who approved the document intended the Constitution to mean
c. Original Public Meaning Irrespective of Intent – interpreting the Constitution by looking at what the popular understanding of the words would have been at that time. (And historical practices, see Scalia)
i. This is the popular form of modern Originalism. It’s similar to Ratifiers’ Intent if we assume that the people who ratified the Constitution used words in their ordinary public meanings.
2. Pros
a. We need a reference point for anchoring a static meaning to the document so it does not change over time.
b. The drafters were especially wise in some way.
c. Analogy to contract interpretation (when in doubt, ask the original parties to the document).
d. One of the most authoritative sources regarding the meaning of the Constitution
e. Constrains the power of unelected judges to legislate from the bench (judicial activism).
3. Cons
a. Over-prioritizing drafters’ intent can under-prioritize the people, and by extension the democratic legitimacy of the inquiry. Ratifiers’ intent is more democratic, but does not solve this problem.
b. Can there ever be one “collective intent” when you are dealing with a multi-member body? This problem is exacerbated the larger the body is. Epistemic problem of discovering collective intent.
c. Where exactly do we look to find this intent?
d. Whose intent should we prioritize?
e. Raises issues of dead hand control.
B. Textualism – determining what the Constitution means by looking at the plain text of the document
1. Types
a. Plain Text – determining meaning by looking only to the plain text of the Constitution
b. Intratextualism – determining meaning by looking to different parts of the document and using them to interpret another part
c. Contextualism – determining meaning by examining where a certain provision is found within the document
2. Pros
a. Seems to be a relatively authoritative source.
b. Analogy to statute interpretation (generally courts start with the plain language of a statute when interpreting).
c. If clear and unambiguous, then it yields a relatively determinative answer.
3. Cons
a. Word meanings change over time.
b. Raises issues of dead hand control – do we want to be tied to one static meaning?
c. Very rarely clear and unambiguous, so must use in conjunction with other types of argument.
C. Structuralism – determining what the Constitution means by looking to the structure provided by the document. This is a very common type of argument.
1. Types
a. Vertical Distribution of Powers – a certain right is reserved for the states/the federal government
b. Horizontal Distribution of Powers – a certain right is reserved for a certain branch of the federal government
2. Pros
a. If an enumerated right or power, its hard to argue with.
3. Cons
a. If right or power is not specifically enumerated, this method is less helpful.
b. Can’t answer hard questions.
c. Not a lot of concrete textual support.
D. Precedent – determining the what the Constitution means by turning to prior decisions
1. Types
a. Judicial Precedent – determining meaning by looking to prior judicial decisions
b. Practical Precedent – determining meaning by looking to custom or practice
2. Pros
a. Reliance on one static meaning and stability for the future.
b. Judges are generally seen as the most competent branch for constitutional interpretation.
c. Increases the institutional legitimacy of the Court.
3. Cons
a. Raises issues of dead hand control. Less flexible to adjust as times change.
b. Generally, “it’s always been done this way” is not a persuasive argument. Tradition does not make something constitutional.
c. Judicial interpretations change. When the Court deviates from precedent, it lowers institutional legitimacy.
d. While lower courts are bound to judicial precedent, that does not mean it will be persuasive to the broader public.
E. Consequentialism – interpreting the Constitution according to the best policy outcomes
1. Pros
a. If you decide without looking at the consequences, it’s like making decisions in a vacuum.
b. Constitution is meant to be flexible.
c. More legitimate if backed up by statistics and facts.
2. Cons
a. Frequently seen as imposing policy preferences dressed as best policy outcomes.
i. Attitudinal model/External Accounts – the proposition that all the arguments judges offer are window dressing. Judges use consequentialist reasoning, but don’t talk about it and dress their opinions in other types of arguments. This is a deeply contested model.
b. We are not psychics. We may think a decision will have one effect, but we may be wrong.
c. Generally you will have disagreement about what the best policy outcome is.
d. Can lower the institutional legitimacy of the Court.
III. COMPARATIVE INSTITUTIONAL LEGITIMACY/COMPETENCY; THE COUNTER-MAJORITARIAN DIFFICULTY; FORMALISM
A. Comparative Institutional Competency: Which institution is most likely to get the answer right?
B. Comparative Institutional Legitimacy: Which institution is most qualified to make this decision?
C. The Counter-Majoritarian Difficulty
1. Alexander Bickel coined the term counter-majoritarian difficulty. He used the term to describe the argument that judicial review is illegitimate because it allows unelected judges to overrule the lawmaking of elected representatives, thus undermining the will of the majority. The problem stems from the understanding that a democracy's legitimacy arises from the fact that it implements the will of the majority.
2. Criticisms of the Counter-majoritarian Difficulty
a. Perhaps the constitution does not actually value majoritarianism. Exs: Each state has the same number of votes in the Senate, Filibuster, Presiden
coln ordered a blockade w/o congress declaring civil war first, which led to litigation that eventually went to SCOTUS. Whenever a ship is seized, there is a judicial hearing to validate the seizure.
Eventually congress passes laws saying everything Lincoln did was ok.
Congress said the President had a duty to act bc of the militia laws (allow President to call up state militia troops since there's no standing army) and the to react when attacked.
Holding:
Court does not deny that international law requires there to be a war in order to have a legit blockade and only congress can declare war.
Court says president has obligation to act when being defensive but congress has authority to act when we are offensive in a war.
Certainty, timing, and nature of possible attack determines whether or not the act is offensive or defensive.
Hepburn v Griswold (1869) (Legal Tender)
Context:
If statutory law does not make an item legal tender (textbook or silver), then another person is not required to accept it as payment.
There's no way to make more gold or silver but you can print as much money as you want which would deflate the value. Paper money is great for debtors but bad for creditors.
Fed govt. had federal notes but it was not legal tender meaning no one had to accept it as payment
Fed. Govt. does not want to pay in gold bc they may not have enough. They used greenbacks in 1862 and mandated it as legal tender even if the value has declined.
The govt. in a war is always a debtor.
Creditors:
Drafters’ & Ratifiers’ intent was to stick to gold or silver
consequentialist – this leads to inflation
opposite consequentialist – it is necessary bc of the war
Holding:
Drafters’ intent – Madison's notes shows congress rejected paper money
Plain text says coin money not paper money (could argue originalism on what coin actually means)
SCOTUS rules the paper money is unconstitutional even though C.J.'s face is on the greenback
Salmon Chase's rights argument is that when the value of paper money declines, the creditor is paid back with less value than expected which violates the just compensation clause 5th amendment (fed govt. taking property)
He says it is also violating 5th amendment substantive due process bc govt. should never be able to devalue your contract obligations. This is after Dred Scott, which is also 5th substantive due process case.
Contracts clause only applies to states but Chase argues natural rights (like and ) and that it is implied in the spirit (
Knox v. Lee (1871) – overrules Hepburn v Griswold
Context:
There is a war again so its okay
said it was N&P bc of war and war powers clause
Julliard v. Greenman (1884)
Holding:
Now
Its okay bc of practical precedent and consequentialism
Dissent:
agrees w/ Chase in Hepburn which is that drafters intent did not want federal or state govts. to make paper money.
Tax & General Welfare Spending Power
Lots of revenue coming to fed govt. bc of larger economy. There is much more regulation of infrastructure as upheld by .
Court said spending power was expanded bc rise of railroad and steam power has created large interstate structure but the general welfare spending argument is easier to justify through arguing improving infrastructure is good for everyone.
