UI 305: Judicial Reasoning
Principles of Constitutional Interpretation
Where do we find the Principles of Constitutional Interpretation?
- Can a written text include rules as to how that very text is to be interpreted?
- An infinite regress: how do we interpret the clauses laying out such rules?
- Did the constitution (not the text) include such principles implicitly? How did they become established?
- How do we discover them?
- J. Scalia has argued that the common law tradition has corrupted constitutional law in the U.S.
- The text of the Constitution is a kind of super-statute, and so must be interpreted by the traditions of the civil law.
- Instead, attention to past cases now dwarfs attention to the actual text.
What would a Civil-Law approach to the Constitution look like?
- Abandon, or severely limit, stare decisis.
- Focus on actual wording of the Constitution, taken as a whole.
- Shift emphasis away from individual rights, and toward the
organic functioning of govt.: separation of powers, federalism, checks
Separation of Powers
- Recognition of three distinct functions has ancient roots: Plato, Aristotle, Aquinas.
- Tripartite structure (executive, legislative, judicial) clearly formulated by Montesquieu and Locke.
- Legislature makes, judges interpret and apply, executive enforces the law.
Relation between Legislators and Judges: 2 models
- Chain of command model:
- Legislators are the judges' superiors.
- Laws are orders issued by legislatures.
- Lawmaking is a kind of communication of intentions.
- Lawmaking is a performative act.
- When legislatures pass a law, it is the text only, which they thereby establish as a standard. Their intentions are irrelevant.
Intentionalism vs. Textualism
- Chain of command model leads to "intentionalism."
- Legislative history becomes crucial -- provides clues about intentions.
- Performative model leads to "textualism."
- Legislative history is irrelevant -- only the final product matters.
Judiciary: Subordinate or Coordinate Branch
- The Command model makes the judiciary a subordinate branch. Merely the agents, instruments of the legislature.
- The Textualist model makes the judiciary a coordinate branch.
The legislature establishes authoritative texts, but the judges must
Democracy and the Three Branches
- Why are two branches (legislative & executive) subject to
periodic election, while one (judiciary) consists of persons appointed
- Federalist Papers 78 (Hamilton) provides a clue: courts are to provide a check on temporary, tyrannical majorities.
Then, Why Not Make All Three Branches Appointive?
- Advantages to representative democracy:
- Protects against tyranny by small clique.
- In a large republic, tyranny of the majority is impossible in the long run (FP #10).
- No taxation without representation is a fundamental human right.
- Participation in a democracy contributes to personal development in virtue and wisdom.
Is the Judiciary the "Least Dangerous Branch"?
- Hamilton thought so (FP # 78)
- "No influence over the sword or the purse."
- Has "neither FORCE nor WILL but merely judgment."
- "Must ultimately depend upon the aid of the executive even for the efficacy of its judgments."
Textualism vs. Literalism
- Textualism defended by Schauer, Scalia, Bork.
- Exceptions to a literal reading:
- Canons of interpretation can override literal meaning.
- Slips of the tongue, results of careless draftsmanship, can be recognized.
- Each clause must be interpreted in the context of the whole.
Canons of Interpretation
- Metonymy: using a part to stand for the whole, or a partial listing to stand for an entire category. E.g.:
- "Speech" and "press" mean any form of communication. (1st Amendment)
- "Authors and inventors" mean any similar sort of creator. (Article I, section 8)
- "All criminal prosecutions" includes any investigation that puts one's liberty or reputation at risk. (5th Amendment)
- Generalizations are defeasible: "all" means "almost all", or "all, excepting very unusual cases..."
- Right to jury trial in "all criminal cases" means in all felony cases, not misdemeanors. (6th Amendment)
- Slips of the pen -- recognized by common sense.
- No double jeopardy of "life or limb" surely means of "life or liberty". (5th Amendment)