Constitutional-Law-Rodriguez-Sp07 - Spring 2007 1L Con Law...

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Spring 2007 – 1L Con Law, Rodriguez I. Structure of Government a. Judicial Review and Constitutional Interpretation i. Modalities of Constitutional Interpretation 1. Marsh v. Chambers, 1983: gov’t chaplains are ok b/c of unique history of U.S. 2. Post: Theories of Constitutional Interpretation 3. Bobbit: Modalities of Constitutional Interpretation a. Need theories of interpretation to give Constitution meaning i. Historical/originalism, Textual, Structural, Doctrinal, Ethical, Prudential b. Historical interpretation : figure out what the Framers thought about issue i. Advantages 1. Theoretically verifiable – can look at historical sources 2. Continuity – won’t change over time – fixed. 3. Stability – change can only come through constitutional amendment and not judicial interpretation 4. Way to constrain judges from making personal policy judgments ii. Disadvantages 1. Founders didn’t have unified visions a. They didn’t want notes from Constitutional convention – didn’t want people to use their intentions b. So judges must make personal judgments when choosing which historical interpretation to use 2. Circumstances change – Founders couldn’t have foreseen or even contemplated many issues today 3. Problem of dead hand of past c. Textual interpretation : Only a starting point – can never use this alone i. Advantages 1. Most verifiable – we can all see the text 2. Limited inquiry – constrains interpretation ii. Disadvantages 1. Meaning can’t come from text but from individual’s reading of it – will always be framed by reader 2. Provisions are usually general and can be read in different ways 3. Text is often abstract, vague and general d. Structural interpretation : Infer relationships between structures set up in Constitution and make policy judgments. Main form of interpretation for federalism cases – relationship between national govt and states i. Form of argument: 1. Identify structure 2. Infer a relationship 3. Make assumption about that relationship changing and what policy implications that would have ii. Advantages: Coherent/Holistic reading of Constitution iii. Disadvantages 1. Requires lots of judicial inference 2. Potential to be inconsistent 3. Requires policy judgments e. Doctrinalism: Apply rules based on precedent
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i. Advantages 1. Generally rules can be applied to multiple fact patterns 2. Predictability 3. Reliance interest protected – provides notice and allows parties to form and rely on expectations 4. Stability – change is slow ii. Disadvantages 1. Precedent can be wrongly decided 2. Can become cumbersome and unworkable (multi-prong tests, etc.) f. Ethical interpretation: Derives rules from moral commitments reflected in Constitution. Key ethical commitment is idea of limited government. Usually seen in federalism cases or “rights cases” (personal autonomy) i. Advantages 1. Similar to original intent but slightly more sophisticated 2. Allows for change – can express Constitution as living body
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Constitutional-Law-Rodriguez-Sp07 - Spring 2007 1L Con Law...

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