html5-img
1 / 15

Class 4 August 30, 2006

COMPARATIVE CONSTITUTIONAL LAW. Class 4 August 30, 2006. INTERPRETING THE CONSTITUTION. What did the first generation of interpreters think about constitutional interpretation?. COMMON SENSE APPROACH. James Madison speech in the House of Representatives 1791

deirdra
Download Presentation

Class 4 August 30, 2006

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript


  1. COMPARATIVE CONSTITUTIONAL LAW Class 4 August 30, 2006

  2. INTERPRETING THE CONSTITUTION • What did the first generation of interpreters think about constitutional interpretation?

  3. COMMON SENSE APPROACH • James Madison speech in the House of Representatives 1791 • “Reviewing the constitution with an eye to these positions, it was not possible to discover in it the power to incorporate a Bank”

  4. COMMON SENSE APPROACH • Francis Lieber, Legal and Political Hermeneutics (1837)

  5. COMMON SENSE APPROACH • Francis Lieber, Legal and Political Hermeneutics (1837)

  6. McCulloch v. Maryland (1819) • Second Bank of the United States

  7. CONSTITUTIONAL INTERPRETATION: • McCulloch v. Maryland (1819) • In considering this question, then, we must never forget that it is a constitution we are expounding

  8. TYPES OF INTERPRETATIVE TECHNIQUES

  9. INTERPRETATION: ECLECTIC • Precedent • Text (ordinary meaning, technical meaning, textual structure, holistic interpretation (?), text and practice) • Originalist • Constitutional Structure (esp. in separation of powers/federalism cases)

  10. CONSTITUTIONAL STRUCTURE • Anticommandeering cases (invoked only twice) (federalism) • State immunity from suit by state citizens for violating substantive obligations Congress has power to impose on states (state sovereignty) • Rights cases (govt power is limited) • Such arguments tend to be supplementary to other arguments

  11. LESS FREQUENTLY USED • Representation Reinfocing Review • Appeals to Justice (moral/political philosophy)

  12. REPRESENTATION-REINFORCING REVIEW • John Hart Ely

  13. JUSTICE BREYER • Active Liberty

  14. MODERATELY DISFAVORED • Presumptive Interpretation • Academic Writing • Foreign Law

  15. Lawrence v. Texas, 538 U.S. 558 (1993)

More Related