This is an extract of our Methods Of Constitutional Interpretation document, which we sell as part of our Constitutional Outlines collection written by the top tier of U.C. Berkeley School Of Law (Boalt Hall) students.
The following is a more accessble plain text extract of the PDF sample above, taken from our Constitutional Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Methods of Constitutional Interpretation a) Interpretation i) Discovering the meaning of words ii) "The right to bear arms" = right to have a gun for selfdefense b) Construction i) Coming up with rules to put that meaning into effect ii) The gov't cannot ban handguns c) Controversy over who has power to interpret i) 1801: Alien and Sedition Act Controversy. Extensive role of Executive in determination of the constitutionality of the Act ii) 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." d) Methods i) 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 ii) 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 iii) 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 iv) 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
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