Methods & Approaches to Interpretation

Question 1

Originalism Definition

Answer 1

Constitution’s text should be given original public meaning (“objective construct,” not subjective intentions of framers)

Question 2

Policy Repercussions of Originalism

Answer 2

Constitution’s purpose was to make law difficult to change.

Courts can only legitimately interpret it based on the way the ratifying parties understood it.

Any legitimate changes must come from formal ratification (Art. V).

Question 3

Policy Goals of Originalism

Answer 3

Allowing judges to change the Constitution’s meaning based on contemporary values makes the law unstable and this is bad for the economy, liberty, society.

History is an objective source of meaning.

Non-originalism gives judges too much power to impose their policy preferences (“Juristocracy”).

Question 4

Living Constitutionalism Definition

Answer 4

The Court has consistently interpreted the Constitution to reflect fundamental contemporary values.

Question 5

Policy Considerations of Living Constitutionalism

Answer 5

Past generations do not have legitimate authority to consent on behalf of future generations (“dead hand” problem).

Even if inter-generational consent is possible, it is not legitimate with respect to groups that were excluded from ratification debates.

Question 6

Justifications for Living Constitutionalism

Answer 6

Framers used general, abstract language with idea that each generation would interpret in terms of their own values and commitments.

The framers embraced slavery and other illegitimate practices, and they should not be the source of our normative identity (Greene).

Question 7

Policy Goals of Living Constitutionalism

Answer 7

The Constitution’s relevance and legitimacy depends on updating its meaning to reflect contemporary values, technology, knowledge, etc.

Question 8

District of Columbia v. Heller (2008) [Scalia]

Answer 8

Holding (Scalia): The Second Amendment protects the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense.

District’s law is unconstitutional ”[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights.”

Question 9

District of Columbia v. Heller (2008) {Dissent-Breyer}

Answer 9

Interest balancing: Studies on relationship between handgun restrictions and crime are ambiguous, but we should defer to legislative judgements on this question so long as there is substantial evidence supporting them.

Question 10

NYSPRA v. Bruen (2022) [Thomas]

Answer 10

Holding (Thomas): The Second Amendment protects an ordinary, law-abiding citizen’s right to carry a handgun for self-defense outside the home.

Plain Text Argument of the 2nd Am.

Question 11

NYSPRA v. Bruen (2022) {Dissent-Breyer}

Answer 11

The Court’s exclusive reliance on history leaves open a number of ”troubling questions”:
Do lower courts have the research resources necessary to conduct exhaustive historical analyses inevery Second Amendment case?

What historical regulations and decisions qualify as representative analogues to modern laws?

Which history is relevant?

How will judges determine which historians have the better view of close historical questions?

How to address changed circumstances and different modern environments?