Process

Constitutional Interpretation [93-94] I. First Question: WHAT do you interpret' What takes precedence in a “constitution' [What is actually viewed as “fundamental” and of primary importance'] Is it one of these or a combination' A. Is it the language itself' [e.g., What “Commerce” means]' [legalistic] B. Is it structure first' [Congress was given Article I, Section 8 – Federalism] C. Is it “thematic” or philosophic goals' [Liberty, Equality, Expression, Due process] II. Second Question: Are these “fundamentals” above to be viewed as “Static” or “evolutionary”' III. Third Question: What Interpretative Method and/or Over-Arching constitutional “rule”, if any, should be used' [which then usually dictates what source(s) of authority should be used when utilizing such an interpretive method]. A. Literalism/ Textualism 1. Emphasis on…[Static view of the constitution] a. Static Nature of Fundamental Law [the constitution], authority. 1) I.e, Strict interpretation 2) Highly suspicious of Judicial Authority 2. Source of Consitutional Authority a. History of how the language would have been understood. 1) Not with what the framers thought/intended solely. b. Emphasizes the notion that applicable facts change, but not the scope of the underlying constitutional rule 3. De-emphasizes a. Balancing of Interests b. Current political needs or developments. 4. Allied with Contemporary Conservatism a. Suspicion of Judicial Authority 1) Actively promotes judicial restraint. 5. Problems' a. How do you gauge collective “meaning”' b. Informal changes in the current polity are not accounted for. B. Intent of the Framers / Original Intent 1. Emphasis on… [Static view of the constitution] a. Static Nature of Fundamental Law [the constitution], authority. 1) ie, Strict interpretation b. Restricting Judicial Authority 2. A single source of constitutional authority a. The authors/ratifiers of the original document and their mental state. 1) not necessarily with how the public at-large might have understood a phrase’s meaning. c. History [but going to mental state] 3. Problems' a. Whose Intent' [which framer' Ratification or convention'] b. Informal changes in the current polity are not accounted for. 4.. De-emphasizes a. Balancing of Interests b. Current political needs or developments. c. Informal constitutional changes [outside Article V] 5. Allied with Contemporary Conservatism a. Restricting Judicial Authority 1) promotes judicial restraint. C. Balancing Of Interests 1. Emphasis on…. [Evolutionary View of the Constitution] a. Dynamic, fluid view of the underlying constitutional rule. b. Current political needs and problems 1) economic and political changes -rise of industrial state, universal suffrage,\ political equality [egalitarian, individual] c. Change in the underlying order by informal means outside Article V. d. a view of constitutional decision-making which posits that most decisions really involve balancing between individual and the community [individualism vs. communitarianism] 1) A single constitutional interpretative scope or source cannot be known and shouldn’t be used. [e.g., literalism, textualism]. (a) - says authority is never clear; most interpretation is subjective. 2. De-emphasizes… a. History b. Intent of the framers. c. Suspicion of judicial authority d. the possibility or need of fixed meanings of law to historical actors e. the need for a solitary interpretive source of authority or interpretive method. 3. Problems' a. Can undermine the objective and authoritative nature of the law. b. Can portray the Court as performing the functions of elected branches. 3. Allied with Contemporary Liberalism in American Politics. D. Stare Decisis [int. “to stand on previous decisions”] 1. Emphasis on… a. Past decisions of the Court [first]. b. Precedents that resemble the current case or controversy. c. Incremental and gradual changes; traditional should be respected. d. Organic nature of the Court. e. Suspicion of the Courts as a political branch. 2. De-Emphasizes a. Balancing of Interests and/or radical changes in constitutional precedent. b. Current political needs or developments. c. Informal constitutional changes [outside Article V] 3. Although inherently conservative, all lawyers are trained to think in this manner.