Methods of Constitutional Interpretation

1. Interpretation

   1. Discovering the meaning of words

   2. “The right to bear arms” = right to have a gun for self-defense

2. Construction

   1. Coming up with rules to put that meaning into effect

   2. The gov’t cannot ban handguns

3. Controversy over who has power to interpret

   1. 1801: Alien and Sedition Act Controversy. Extensive role of Executive in determination of the constitutionality of the Act

   2. 1803: Judicial push-back in Marbury v. Madison – “It is emphatically the province and duty of the Judicial Department to say what the law is.”

4. Methods

   1. Constitutional textualism

      1. In accordance with meaning of the words. Text is central & binding because it has been adopted and ratified by “the People”

      2. Pro: interpretive clarity, limits judicial discretion

      3. Cons: approach is difficult to apply because the Constitution’s text is often vague and ambiguous

   2. Structural Approach (intratextualism)

      1. Derive evidence from how similar words/phrases are used in other parts of the Constitution

      2. Pro: interpretive clarity, limits judicial discretion

      3. Con: unproven assumption about the Constitution as a coherent document

   3. Originalism

      1. Original intent – Framers’ intent and expectations

      2. Original understanding – Ratifiers’ intent and expectations

      3. Original meaning – public meaning attached to a term/phrase at time provision was adopted

      4. Pros: limits judicial discretion, puts impetus for change in amendment process

      5. Cons: Dead hand, framers’ intent unknowable, incoherence of “group intent,” democratic deficit of the Framer, rigid interpretations

   4. Pragmatism/Living Constitution

      1. Interpret Constitution to promote evolving national values and particularly “our common commitment to the flourishing of the mutual enterprise of nationhood.”

      2. Rooted and responsive to the specific context at hand

      3. Pros: frees from dead hand, something that judge is arguably competent to discover

      4. Cons: unpredictable and inconsistent rules, no clear mechanism for resolving conflict over dispute between national values, gives courts too much power

   5. Tradition and Precedent

      1. Ascertain & follow tradition

      2. Stare Decisis et non quieta movere – to stand by decisions and not disturb the undisturbed

      3. Pros: continuity, predictability

      4. Cons: tradition and precedent is sometimes wrong; hard to tell if case “controls”

5. District of Columbia v. Heller (2008) – pg 14 – DC criminal statute makes it a crime to carry an unregistered...

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