first-year law review

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Constitutional Law: Methods of Interpretation

I haven’t posted much on constitutional law because it’s a pretty convoluted subject and we’re using a pretty convoluted book. (I recommend the constitutional law outline in the Emanuel series. It helps a lot). After talking about McCulloch regarding the enumerated powers, we talked about methods of interpretation. These methods blend together too; it’s not always clear when one interpretation is strictly one method or another. We’ve talked about six methods: textual, structural, prudential, historical, precedential, and national ethos.

The buzz words of textual interpretation are “plain meaning.” This is where you look up the words in the dictionary, use contemporary sources, and look at the location of the words in the text (like when Marshall said the Necessary and Proper Clause was in the section granting powers to Congress and not the section which limits Congress).

With structural interpretation, you can make inferences from the structure and relationships set up by the Constitution. An example is the division of powers within the branches of the federal government and between the government and the states.

In prudential interpretations, you ask what the consequences of the decision are and what the consequences of who decides are (this means you ask who’s best suited to decide; it may be the legislature or it may be the judiciary).

The historical method of interpretation is often paired with Originalism (it ties both textual and historical interpretation together). You look at the purposes for various clauses in the Constitution and uses sources to get into the “brain of Madison” as some say, meaning you try to ascertain the Framers’ intent.

We didn’t spend much time on the last two. Precedent is self-explanatory and we glossed over national ethos. (I’ll try to edit this and include more on it when I learn it on my own).


January 16, 2007 - Posted by | Constitutional Law

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