Modalities of Constituional Interpretation

Question 1

What are the six modalities of interpretation?

Answer 1

1) Historical/Intentional/Originalist
2) Doctrinal
3) Ethical
4) Textual
5) Structural
6) Prudential

Question 2

Historical/Intentional/Originalist

Answer 2

Look to intentions of those who passed the text (framers AND ratifiers–though more data for framers)

Question 3

Authority of Historical Modality?

Answer 3

Authority of Consent

Question 4

Criticism of Historical Modality?

Answer 4

Concerns about the dead hand of the past controlling a changed nation
-might be different if Constitution more easy to ammend

Question 5

Doctrinal

Answer 5

Classic stare decisis: precedents must be followed or overturned
Asks if there is a prior interpretation of the relevant Constitutional provisions.

Question 6

Authority of Doctrinal Modality?

Answer 6

Authority of Law

Question 7

Criticism of Doctrinal Modality?

Answer 7

• overly path-dependent/blind–need better reason than b/c it was laid down in the past
• Dependent on views of Justices as much as framers

Question 8

Ethical Modality

Answer 8

Relies on moral rules embedded in the Constitution, certain ethos people have about the Constitution.

Question 9

Authority of Ethical Modality?

Answer 9

No Authority: basis is reservation of powers not delegated to a limited government

Question 10

Criticisms of Ethical Modality?

Answer 10

Why not let ethos bubble up from the grassroots and have an Article V Amendment, rather than have 5 judges tell us what a particular ethos is?

Question 11

Textual Modality

Answer 11

Relies on contemporary meaning of words to average person (differs from historical)

Question 12

Structural Modality

Answer 12

Relies on structure of institutions created by the Constitution–how branches relate to each other. Says one branch is better at something than other branch.

Question 13

Steps of Structural Modality?

Answer 13

1) Uncontroversial statement about constitutional structure (e.g. right to vote is provided for in Constitution)
2) Relationship inferred based on structure (this right gives rise to federal power to protect it)
3) Factual assertion about the world (w/o protection, the right is at the mercy of the states)
4) Conclusion drawn provides rule (fed gov’t can dictate national voting requirements)

Question 14

Prudential Modality

Answer 14

Relies on utilitarian cost-benefit analysis approach to outcomes (limited pragmatism)
Functions as a safety valve when other modalities would lead to absurd result.
(Constitution not a suicide pact–should not lead to economic disaster)

Question 15

Criticism of Prudential Modality

Answer 15

If you let this utilitarianism go too far, it can trump the constitution completely, unless it only kicks in at the margins.