Constitutional Interpretation – Page 47 – Marquette University Law School Faculty Blog

The Importance of Being Logical

Post author:Edward A. Fallone
Post published:May 12, 2009
Post category:Constitutional Interpretation

I went to see the Star Trek movie this past weekend with my twelve-year-old son, Andrew. He was the one dressed in full Klingon regalia (true story). The star of the movie is undoubtedly everyone’s favorite Vulcan, Mr. Spock. As you will recall, Spock is the character who always insists on behaving logically. Seeing the movie made me reflect on legal education and the importance of being logical.

Teaching Constitutional Law, it is easy to get wrapped up in ideological conflicts and to overlook the key role that logical syllogisms play in the construction of Supreme Court opinions. Certainly the students do not immediately grasp the connection between formal logic and Supreme Court decision-making. They begin the semester with the assumption that the members of the Court merely vote their ideologies. As the students assimilate the various interpretive theories for reading the text, such as textualism or intentionalism, they flirt with the possibility of deriving the meaning of the Constitution in an objective manner. However, the inconsistent manner in which the members of the Court employ these interpretive methods soon frustrates a fair proportion of the class. Some students begin to drift towards the view that the decisions of the Court are merely bald assertions of political power, while others begin to flirt with nihilism and the belief that the entire interpretive enterprise is arbitrary.

My personal view is that the United States Constitution is a political document, constructed via compromise between various interest groups and left intentionally ambiguous in several key respects.

Tribe on the Use of Foreign Law

Post author:Michael M. O'Hear
Post published:May 6, 2009
Post category:Constitutional Interpretation

In an earlier post, I outlined the basic themes of Laurence Tribe’s The Invisible Constitution. One specific section that was of particular interest to me was Tribe’s defense of the use of foreign law in constitutional interpretation. I run into this controversial practice every spring when I teach Atkins v. Virginia, 536 U.S. 304 (2002), and Roper v. Simmons, 543 U.S. 51 (2005). Interpreting the Cruel and Unusual Punishment Clause of the Eighth Amendment, Atkins banned execution of the mentally retarded, while Roper outlawed the death penalty for juvenile defendants. In both cases, the majority drew intense criticism for citing foreign law in support of its holding.

Based on Atkins and Roper anyway — I am admittedly not as familiar with some of the Court’s other uses of foreign law — I think that Tribe is right about at least two things.

Restrained Judicial Activism

Post author:Sean Samis
Post published:April 27, 2009
Post category:Constitutional Interpretation Judges & Judicial Process

In contemporary legal discussion, “judicial activism” is roundly condemned. This behavior refers generally to any instance in which a court’s opinion is the product of the court following its personal policy preferences instead of the commands of the law.

The favored behavior is “judicial restraint,” which is usually defined by the values of “originalism” (deference to the original intent of the lawgivers), “textualism” (respect for the language of laws), “self-restraint” (respect for precedent) , and “separation of powers” (deference to the prerogatives of democratically elected legislative bodies and/or the States).

The foundations of “judicial restraint” are originalism and textualism. “Self-restraint” and “separation of powers” are secondary values. Precedent and legislative enactments are binding and commendable only when they are consistent with the original intent and text of higher law, which is not always the case.

The words of any law (statute or a decision) are the best evidence of its meaning because it is presumed that the law’s Framers picked those words to efficiently describe what they intended the law to require or prohibit. (For the sake of convenience I use “Framers” to refer to courts rendering a decision or legislative bodies drafting a statute.) “Textualism” demands respect for the clear meaning of these words. Unless there is some unavoidable flaw or ambiguity in the drafting which makes the intent of the Framers incomplete, incoherent, or ambiguous, courts should treat laws as meaning what they say they mean.

Textualism has its limitations.