Methods Of Constitutional Interpretation - Constitutional

Interpretation

1. Discovering the meaning of words

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

Construction

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

2. The gov’t cannot ban handguns

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.”

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”

District of Columbia v. Heller (2008) – pg 14 – DC criminal statute makes it a crime to carry an unregistered firearm and prohibits the registration of firearms.

1. Competing interpretations of Second Amendment: “a well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

   1. Textualism

      1. Ambiguous terms in Prefatory Clause

         1. Militia: everyone that could be a part of a militia? Just a subset of people?

         2. Well-regulated: well trained? Regulated by some authority?

         3. State: California? Government more broadly?

      2. Ambiguous terms in Operative clause

         1. The people: everyone or a subset?

         2. Arms: weapons of offense? Or armor of defense?

         3. Keep and bear Arms: disagreement over whether these have military meaning

   2. Intratextualism

      1. Scalia: says that in all other parts of the Constitution, “the people” unambiguously refers to all members of that political community, not an unspecified subsets.

   3. Originalism

      1. Original meaning

         1. Scalia: analogous arms-bearing rights in state constitutions and the understanding of 19th century legal scholars

      2. Original intent

         1. Stevens: drafting history of the Amendment

   4. Precedent and Tradition

      1. Until 2001, every court had determined that the Amendment protected a militia-related right to bear arms

         1. United States...