Constitutional Interpretation

Question 1

Originalism - Defined

Answer 1

look at everything and ask “what would the public have thought of X provision of the Constitution at that time?”

Question 2

Originalism - The Good

Answer 2

can help get a more impartial view.

Question 3

Originalism - The Bad

Answer 3

difficult to apply to modern situations, difficult to discern actual intent, dead-hand theory (why be bound by someone from 1700s?)

Question 4

Strict Textualism - Defined

Answer 4

text of the Constitution and what it means today - they don’t care about the history bc text in the answer.

Question 5

Historical Textualism - Defined

Answer 5

ask “what did the words used mean at the time they were written?” - not looking at what anybody said, but yes to looking at words and their meaning at the time.

Question 6

Textualism - The Good

Answer 6

can help get a more impartial view.

Question 7

Textualism - The Bad

Answer 7

strict is impossible for most of the Constitution, historical can be difficult especially with modern situations.

Question 8

Doctrinal Interpretation - Defined

Answer 8

seeks to use interp. to establish Neutral Rule for each Constitution Provision.

Question 9

Doctrinal Interpretation - The Good

Answer 9

test allows court to apply without going into the well for each new situation, theoretically contrains judicial bias

Question 10

Doctrinal Interpretation - The Bad

Answer 10

test can be overly formalistic, neutral rule may not be neutral but instead based on preconceived bias, rule may also be so general it’s easy to manipulate

Question 11

Prudentialism

Answer 11

infers Constitution meaning from practical consequences (ptx & econ) & considers the institutional role of decision makers.

Question 12

Structuralism

Answer 12

infers Constitution meaning by reference to the systems that the Constitution sets in place & the relationships it establishes.

Question 13

Ethicalism

Answer 13

“Ethos” - infers meaning by looking at the spirit of the Constitution and what it seeks to accomplish.

Question 14

DC v. Heller

Answer 14

Special officer + weapon. Ruling: 2nd amendment included the private right to bear arms based on the reading of the Consitution. Scalia & Stevens had different interpretation.

Question 15

Original Intent of the Framers

Answer 15

We don’t know what they thought - their original intent was that we do NOT use their intent & instead talk to the ratifiers who wrote it.

Question 16

Original Intent of the Ratifiers

Answer 16

Check out the Ratifier Convention.