Constitutional Interpretation - Four positions

Question 1

1. Original Intent Originalism:

Answer 1

The word means what it was intended to mean in 1777.

a) Less common now for three reasons:
i) it is never quiet certain at what level of generality we should understand that intent (whose intent? Drafters, ratifying states?
ii) the embarrassment problem - original intent originalism turns out to generate some number of outcomes that 200 years after the fact the population is unwilling to accept.
b) Similar: “Public Meaning Originalists”: what did the words mean at the time?

Question 2

2. Textualist:

Answer 2

look at the text and only the text so help you God
a) Scalia: people vote for different reasons, the only thing they agreed upon was the actual text. In statutory as well as in constitutional interpretation he is unwilling to look to actual intent.

Question 3

3. Living Constitutionalism:

Answer 3

the words of the constitution should be interpreted in light of modern realities. (Marshall’s opinion in McCulloch)
a) View assisted by the fact that the amenability of the Constitution is practically impossible.
Therefore, it must be interpreted flexibly in light of changing values.

Question 4

4. Contemporary Public Meaning

Answer 4

what the words mean now.

Question 5

5. Other constitutional points:

Answer 5

a) Formalism v. Functionalism:
i) Formalism: take the words and structure as it is written seriously even if it generates a bad result.
ii) Functionalism: interpret accurately according to the function that some legal provision is designed to serve.
b) Enforcement: The sanctity of the constitution was upheld because the federal and state troops obeyed the President’s orders in Cooper v. Aaron.
c) Counter-majoritarian difficulty: when the court declares an act of Congress unconstitutional, 5 - 9 people are overruling a decision of an elected party.
d) State as a Laboratory for Democracy: try novel social and economic experiments without the risk to the rest of the country. Brandies.