Constituional Interpretation

Question 1

Original “Interpretivists”

Answer 1

The only legitimate form of judicial review is interpretation of the written constitution.

“if the legislator creates a law within the scope of the constitution = courts cannot void it, (even if it is contrary to our idea of natural justice)

Question 2

Non-Originalist / Noninterpretivists

Answer 2

interpretation is not limited to the text, but interpretation may include extraconstitutional norms as a source for a constitutional decision.

“acts of the legislature contrary to the vital principles of our government (spirit of the law) = Void / forbidden

Question 3

Originalism (two types)

Answer 3

1) Determining the original Intent of the drafters of the constitution
2) Establishing the original meaning of the text.

Question 4

Original Intent of the Authors

Answer 4

• Prevents politically unaccountable judges from

making the constitution reflect their personal beliefs = creates a standard for a decision.

Question 5

Original Meaning of the text

Answer 5

Meaning at the time it was drafted.

Question 6

Vectors of History Arguments

Answer 6

“what does the law mean today?”
“what role does tradition play?”

Static vs. Dynamic interpretation of the constitution.

Question 7

Structural Arguments

Answer 7

• Certain principles or practical results are implicit in the structure of the government and the relationships created by the constitution.

E.G. Marbury v. Madison (Origin of Judicial Review)
- Structure of the constitution implies an active role for the courts in deciding constitutional law.

Structural Arguments are common with Federalism issues.

Question 8

Doctrinal Arguments

Answer 8

Assert Principles from:

1) Precedent
2) Judicial Commentary
3) Academic commentary or precedent

= Weakest principle

Question 9

Prudential Arguments

Answer 9

Practical wisdom of using the courts in a particular way.

“Proper role of the courts + separation of powers”

Question 10

Cultural Arguments

Answer 10

Rooted in "widely shared cultural norms"
1) Moral Concepts of Justice
2) Theories of Human Freedom / Autonomy 
3) Cultural Assumptions about Fairness
"Non-interpretivist arguments?"

Question 11

Interpretation vs. Implementation (Construction)

Answer 11

E.g. Constitution says, buy a dog.

Interpretation narrows the meaning of “dog”
- Does not mean a wolf, a hyena, or a coyote.

Construction of the meaning of Dog.
- German Sheperd? Collie? Poodle?
= Political Question.

Question 12

Problems with Constitutional Interpretation

Answer 12

1) Countless issues the constitution is silent on.
2) Constitution is written in “open-textured” language. e.g. commerce among the states,
“Necessary and Proper”, “equal Protection”
3) Courts must decide what, if any, Governmental justifications allow the gov. to interfere with a fundamental right. e.g. limiting free speech so people do not yell “fire” in a theater.