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CON LAW OUTLINE MODES OF INTERPRETATION TEXTUALISM A. Taking the words of the Constitution to mean exactly what they say, e.g. No law, means no law. 1. Words in Constitution should be defined by plain meaning, i.e. the dictionary. 2. Scalia’s dissent in Hamdi the Constitution says Charge him, let him go, or ask congress to suspend the writ under Art I §9 cl 2 3. Dictionaries written at the time of drafting can also be used, Thomas likes this for Commerce. B. Often use the original intent of the framers when text is unclear, but a textualist need not always be an originalist.. ORIGINALISM A. To the extent that a textual provision is quite broad-say “equal protection”- the specific intentions of the drafters should govern-i.e., if the Reconstruction Congress mandated segregated schooling, then the Equal Protection Clause should not be interpreted to bar segregation. B. Generally involves ascertaining meaning of test by reference to specific intentions of those who enacted it, i.e. what did they mean at the time. C. To get intentions look to: 1. Statements of those at the convention. 2. How the original Congress treated issues. 3. Federalist Papers. D. Originalsim and Judicial Activism:” Scalia thinks that Textualism/Originalism restrains judicial activism because court exercises only those powers enumerated in the Constitution. 1. One can be textualist and still be very activity, e.g. Thomas dissent in Lopez would have invalidated 60 years of commerce clause legislation. 1
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INTERPRETIVISM A. The broad phrases of the constitution invite interpretation and that interpretation should involve best judgment that judges can offer, and should not be limited by the specific intentions of the drafters. 1. “Eat healthy foods” should not be limited to what it meant at the time the statement was made. B. “McCullogh v. Maryland:” Marshall interpreted the necessary and proper clause to mean “useful and convenient.” 1. Established the doctrine of implied powers, e.g. not all powers granted by the Constitution need be explicitly written in the Constitution. 2. Articulated the supremacy of the Federal Government. 3. Looks at degrees of necessity, common usage, surrounding words in text. 4 “Let us never forget this is a constitution we are expounding.” NOT A PROLIX LEGAL CODE. a. Constitution must speak in general terms to be more applicable to wide range of situations and to endure. Not like a statutory scheme. C. “Gibbons v. Ogden:” Marshall could have used dictionary definition of commerce but did not. Instead he looks to purpose of Commerce Clause. D. Perhaps the framers intentionally left ambiguity to allow for later flexibility. PRAGMATISM A. Interpreting the Constitution based on what will work in practice.
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