Interpretive methodology

Question 1

Interpretive methodology

Answer 1

Not mutually exclusive, may be used simultaneously

Are you asked to act as an advocate or a judge?

Confront weaknesses/strengths of different interpretations, do not ignore.

Question 2

Originalism

Answer 2

Based on original intent of framers

Question 3

Originalism: premises

Answer 3

Premises:

1. Meaning of the Cnstn today should be determined by the original intent / state of mind of the collective body that created it
2. Judges/Scholars today can come to rsnbl and reliable understandings about thiss state of mind through careful historical examination of archival work
3. This should be authoritative on judges

Question 4

Originalism: Rationale

Answer 4

Consistent with:

• History
• Separation of Powers (Judicial branch implements value choices, does not create)
• Democracy (Unelected judges unaccountable, Cnsntn should evolve through amndmnts by elected officials, deference to the elected creators of cnsntn)

Question 5

Originalism: Weaknesses

Answer 5

• Difficult to ascertain intent
• Impoverished version of equality

Question 6

Textualism

Answer 6

Based on actual words of law - most rigorous and objective

Question 7

Textualism: Rationale & Weaknesses

Answer 7

Judges may not impute personal preferences into the law

Weaknesses

• Text doesnt answer all questions; unenumerated rights
• Competing definitions
• Undemocratic; rigid std constrains amendment (article V)
• Original framers represented only the interest of a tiny fraction of the population

Question 8

Process Theory

Answer 8

Based on the procedural mechanisms that judiciary was designed to protect

Question 9

Process Theory: Rationale & weaknesses

Answer 9

Rationale: The judicial branch is best to ensure political/instnl processes respect the rights of political minorities while leaving substantive value choices to politically accountable bodies

• Unelected, immune to majoritarian preferences

Weaknesses:

• Not terribly objective in determinng which categories apply in protecting political minorites

Question 10

Living constitutionalism / Pragmatism

Answer 10

Based on costs and benefits of ruling

Question 11

Living Constnlsm / Pragmatism: Rationale

Answer 11

• Judges should be sensitive to the desirability of social change, stability, conseqences, decisions of other bodies, etc
• Framers intended to use ambiguous language such that the document could adapt and endure as its meaning “liquidated” over time

Three Types of language in the Cnstn:

1. Fixed, easily discernible rules
2. Abstract principles
3. Silence