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Constitutional Law I
Wayne State University Law School
Weinberg, Jonathan T.

Modalities of Constitutional Interpretation
1. Historical / Intentional –  Relying on the intentions of the framers and ratifiers of the constitution
-Intentionalist/OriginalistàFramers or ratifiers intended, or did NOT intend, or it cannot be ascertained whether it was their intention to X.
-Does not consult contemporary mores
-Looks at it in a vacuum.
-Counter-argument:
-Constitution as a living documentàDoesn’t need to be amended all of the time; what the framers wrote just needs to be interpreted in contemporary mores.
-Unelected judges are making decisions that displace a democratic decision
-Transhistorical Modality (subset/counter argument)
-The Constitution is a living document
-The framers intended to pitch rights at a high level of generality such that one can suspect that they meant to leave the principle to the intelligence of successive generations (e.g. some things seemed self-evident in the past, e.g. blacks were inferior, that have become refuted)
-Counter argument:
Originalismàconstitution lives in the minds of the framers only.
2. Textual – Looking to the meaning of the words of the constitution alone, as they would be interpreted by the average contemporary “man on the street.”
-The text either declares it, doesn’t declare it, or is ambiguous
-Intra-Textualism (subset)- Use one party of the document to inform the meaning of another part of the document.
-Counter argument:
common usage test, look to the ratification process (this is because different parts of the text represent compromises and have different drafters so the “whole legislation” approach is not a legitimate tool of interpretation.)
-Counter Arguments
-Dictionary stacking; words do not always have the same meaning
-Original Purpose/Legislative History
3. Structural – Infers rules from the powers granted to government
-Is not about the structure of the constitution itself. It is about the structure of government set forth in the constitution, i.e. federalism concerns, separation of powers concerns, incorporation:
Steps:
1.      An uncontroversial statement about a constitutional structure is introduced (the statement that a right to vote for a member of congress is provided in the constitution)
2.      A relationship is inferred from this structure (this right gives rise to the federal power to protect it and is not depend on state protection.)
3.      A factual assertion about the world is made (if unprotected, the structure of the federal representation would be at the mercy of local violence)
4.      A conclusion is drawn that provides the rule of the case (the constitution provides for a federal power to protect the right to vote).
Counter arguments
-Not specific enough to handle pointed substantive questions
-Textualism
-Intentional (depending on whether the framer’s intent is consistent/supportive of the inference.)
-Prudential
-Historical
4. Doctrinal – Applying rules generated by precedent
-Stare Decisis: when we say that a neutral general principle derived from the caselaw construing the constitution should apply, does not apply, or may not apply
-Counter Arguments:
-Holmes: “It is revolting to have no better reason for rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished since, and the rule simply persists from blind imitation of the past.”
-Judicially established Meta-rules about stare decisis lead to an authority of consent (historical modality) problem when the courts make rules about how stare decisis should be interpreted (e.g. Casey)
-Prudential
-Intentionalist
-Counter-majoritarian difficulty->The minority speaking for the majority, not democratic
-Cherry-picking or ignoring the caselaw
-Healing a line of case-law by calling a particular case an outlier.
5. Ethical – Deriving rules from those moral commitments of the American ethos that are reflected in the Constitution
-Denotes an appeal to those elements of the American cultural ethos that are reflected in the Constitution; the “spirit” of the law.
-Eschews authority of law/stare decisis; appeals to the counter-majoritarian difficulty.
-Counter Arguments:
-Unelected j

ral Government is Much More Powerful
-This was quite controversial
-There is a lot of initial debate as to exactly what each of the power mean
-Values of Federalism
1. Promotion of efficacy
-The national government is more efficient at solving coordination and collective action problems.
-State governments are better to solve local problems.
2. Promotion of Individual Choice
-Permitting states to come to their own solutions ensures that more people’s preferences are satisfied.
3. Promotion of Experimentation
-States as laboratories for social and economic experiments.’
4. Promotion of Citizen Participation
-“Genuine room for noninstrumental participation in American political life can realistically exist only on the local level.”
-Maybe less of an argument for federalism than an argument for localism
5. Prevention of Tyranny
-“Ambition counteracts ambition; different governments control each other and so will control themselves” FED # 51
-Although this doesn’t work when the federal government says “no one shall do X” because the state can’t step in.
-The supremacy clause only runs in one direction
-Power of Incorporation
-At this time, there were no general incorporation statutes, and corporations were rare. Corporate sponsors had to petition one of the thirteen states for a special corporate charter.
-MADISON proposed that the government should have the power to issue charters of incorporation.
-This ended up being not included because of pushback from New York and Philadelphia business communities because they were afraid that a Bank of the United States would get set up.
Bank of the United States
-Ends Up being set up to:
-Increase liquidity