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Constitutional Law I
Villanova University School of Law
Samahon, Tuan N.

Interpretative Methods
Tuesday, April 05, 2011
8:37 AM
Originalism: Scalia; Thomas
·         Constitution has a fixed textual meaning
·         Text–>state ratifications–>pre-ratification and period history–> precedent
·         Originalist more likely to overrule prior cases–not big on precedent
·         'Anti consequentialist'
·         Ex. SCOTUS is definitive interpreter of Constitution; not exec, not leg.
·         Look @:
o    Text of constitution, including structure and other provisions bearing on the issue
·         What is 'plain meaning' of the language
·         Original public meaning: How would a reasonable person in the Framer's era have understood the language (time of ratification)
·         Look at dictionary from times of drafting/ratification
§  Most textualists prefer original meanings, but are open to reasonable updating
·         Intra-textual meaning: use the const. as its own dictionary; how is the term used in another part of the const.
·         Read the provision in light of the whole document–each amendment should fit and be read as  part of the larger document
§  Presumption that a document uses the same term consistently throughout–so can look to use of term in other part of documents to clarify meaning in specific provision
§  Don't construe one provision in a way that is plainly inconsistent with another current provision
§  Structuralism: read the text in light of the overall constitutional principles
·         The constitution has principles built into it:
·         Democratic representation; accountability of representatives to their consituents; const. counsels against race-based discrimination
·         Problem  = this is so general and can often be applied in either way when a case is split
o    Context within which text was drafted, debated, ratified, and include legal background and traditions
o    Original goals and norms that were accepted by those who ratifying and framing the constitutional provision in question
o    Original understanding: focus on state ratifications–focus on the state debates to determine meaning
·         Benefits:
o    Constitution is written–'lock-in' the meaning
o    If a Constitution is supposed to be the law governing law makers, it cannot be remade by the parties which it is designed to govern
·         Criticisms:
o    Framer's didn't have a single intent
·         Most originalists explain that Madison isn't 'Madison.'  He's a representative of the views of 'we the people'
o    Epistomological difficulty:
·         Lack of records from that era
o    Dead-hand control argument: approatiate to limit interpretation to what those who framed it 200+ years ago thought?  World has changed.
·         Also, founders not represent 'we the people'–they are dead white guys who owned slaves
o    Interdeterminacy problem:
o    Cognitive Dissonance problem: possible for any judge to remain objective for normatively charged issues of Con Law?
Legal Process Theory–John Hart Ely
·         views the law from an institutionalist and procedural  perspective
·         Const. interpretation is not based on interpretation–based on 4 corners; but not as rigid as originalism
·         Substantive values should not be in const. only procedural methods
·         Use values and considerations from within 4 corners; but defer to judgment of individual institutions
·         Representation-Reinforcement: elected officials are better representatives of 'we the people' than life-tenured judges
o    Court should get involved if
·         Ex. Other branches are adopting policies to try to stay in power/gain power
·         Ex. The majority is attempting to 'choke out' the minority votes
·         Criticisms of Proceduralism
o    Outcome-driven: process may be working, opponent doesn't like outcome
o    Public Choice Theory: Judiciary should defer to the political process unless a political market failure occurs
·         difficult to organize large groups of people, can't really have direct democracy in the US today
Common Law Constitutionalism: Rehnquist, O'Connor, Stevens
·         Modern con law less concerned w/ determining framers' expectations and more with applying precedent in new factual settings
·         Primary tool of con law interpretation is judicial precedent–rather than originalist hx or abstract moral theory
§  Approach mirrors reality of constitutional advocacy–use precedent, but use original understanding/intent/morality as support
·         Authoritative hierarchy:
§  Constitutional text
§  Original intent
§  Precedent and hx practice
§  Original or evolved purpose of the provision
§  Practicality and potential resistance
§  Ethical and political norms
·         Look at what the consequences will be of taking certain actions and aim for a fair and just outcome
·         The founding fathers couldn't have foreseen the present state of our nation and the problems it faces
·         Functionalist-Courts should exercise deference to legislative power, but should be able to interpret the constitution in a way that still preserves the core powers of each branch.
·         Formalist-It is the duty of a Judge to enforce the constitution as originally written and to police the lines the constitution created
Hamiltonian (Pro Executive)-The functionalism/formalism debate largely centers around the separation of powers and checks and balances.
·         Functionalist (variety of pragma

rine”–seeks to prevent states from regulating interstate commerce in ways that discriminate in favor of in-state economic interests.
Necessary and Proper Clause
McCulloch v. Maryland (1819)–crucial in defining scope of congressional power and relationship of fed and state gov't
·         F: state of MD tax 2nd nat'l bank of US–and bank refused to pay the tax
·         P: trial ct. ruled in favor of MD, pl., MD ct of appeals affirmed
·         I: whether the state of Maryland could collect a tax from the Bank of the United States
·         H: Marshall (Marshall used the case as an occasion to broadly construe congress's powers and narrowly limit the authority of state gov't to impede on the fed gov't)
o    Federal gov. has the power not only to exercise their express powers AND
o    Under the necessary and proper clause Art I § 8, congress may choose any means not prohibited by the const. to carry out its express authority
·         A: two main issues
o    Does congress have authority to create the bank of the united states?
·         4 arguments:
§  Historical practice established the power of congress to create the bank–1st bank gives authority for 2nd bank
§  Refute the state of MD argument that states retain ultimate sovereignty bc it was states that ratified the constitution–marshall, No, it was ratified by 'we the people'
§  Scope of congressional power under article I
·         MD: creating bank not an enumerated power
·         “in considering this question, then, we must never forget that it is a constitution we are expounding”
·         even though const. not mention power to create bank, congress can do so as a means to carrying out many of its other powers
·         BROADENED power–expanded congressional authority to include IMPLIED congressional powers
§  Necessary and proper clause
·         this provision makes it clear that congress may choose any means not prohibited by the const. to carry out its express authority
·         Opposing view: necessary and proper clause is a limit on congress's powers allowing congress to adapt laws that are truly necessary
·         Marshall counters by: necessary here means useful or desirable, not indispensable or essential