Tung 1

Tammy Tung PLSC 101 Timothy Wilson October 11, 2012 Approaches to Constitutional Interpretation There are six approaches to constitutional interpretation. These are Textual Analysis, Precedent Approach, Constitutional Doctrine, Logical Reasoning Approach, the Adaptive Approach or The Living Constitution and the Original Understanding Approach. Textual Analysis applies an interpretation that is rooted on the basis of the words found in the constitutional text. It adheres closely to this approach. This means if the Constitution is to control the outcome of a case, and the text is clear, the interpretation should stop there. There is nothing more to construe when the language is clear and therefore of conclusive. Using this approach judges should be governed only by the tradition and text of the Constitution and not use their personal, moral or intellectual perceptions. If the text is allows for conflicting interpretations, many judges then turn to the specific legal tradition that the text appears to say in other words what did the language of the Constitution mean to the society at the time it was adopted. Some weaknesses with the Textual Analysis Approach are that it is difficult to apply in many situations. Often the provisions of the Constitution are not perfectly clear and may require extensive construction. Other issues include that even when the relevant words in the Constitution are perfectly clear, multiple provisions could for be applied. So then the decision comes down to which provision should be applied and which should get priority. The Precedent Approach uses previously decided cases, searching for answers on the basis of precedent. This essentially means using similar cases that have already been decided and

Tung 2

uses those decisions to settle the new cases. This approach is often used when textual analysis alone is inadequate. Precedent a primary method of legal reasoning in Anglo-American law helps add predictability, stability and continuity to the legal proceedings. Precedent has only been applied sporadically though in Constitutional law. The Precedent Approach is not commonly used by the Supreme Court because many scholars and justices believe that the Constitution, rather than previous decisions of the court, should be the standard for decision making. Often constitutional cases deal with political and social issues are in litigation for short times, and these issues cannot be resolved satisfactorily on the same basis as other legal problems. Some further issues with precedent can also include that prior case law may have been incorrectly decided especially if the judge deciding the particular case4 was seeking to impose their own social or political ideas. Constitutional Doctrine includes using formulas that are usually extracted from a combination of related cases and constitutional text. This approach can allow original texts to be bypassed at times. Constitutional Doctrines can become increasingly important many times public debate focuses on the center of the me4aning of the doctrines not the me4aning of the Constitution. On such Constitutional Doctrine is separation of church and state. This is not found anywhere in the text of the Constitution, conflicts with the principle of a constitutional entitlement to Freedom for Religion, is inconsistent with both legislative and constitutional history. Yet you will hear it quoted often as being part of the First Amendment Establishment Clause. The weakness lies in the price of clarity of constitutional understanding regardless of the efficiency or bluntness of the constitutional doctrines / formulas.

Tung 3

The Logical Reasoning Approach emphasizes the use of logical reasoning. This is generally presente4d by a formal argument which will have a major and minor premise and a conclusion. The weakness with this approach is obvious from the word logic. Logic alone is not capable of determining if a particular is Constitutional or not. Those who use the logical reasoning approach recognize that constitutional interpretation must also look upon and use and understand the Constitutions proper endings. The Living Constitution or Adaptive Approach treats the U. S. Constitution more like a Political document rather than a legal one and according to this theory believes that constitutional interpretation must be influenced by present-day values and also the American experience. Furthermore, this approach insists that each generation has the right to adapt the Constitution to its own needs. Those who support The Living Constitution or Adaptive regard the Constitution as an ever changing document. So basially from generation to generation, the Constitution means whatever the Society, and ultimately the Court, thinks it ought to mean. Proponents do concede that adaptations must be reconcilable with the language of the Constitution. Weaknesses with The Living Constitution or Adaptive Approach are many. In particular the one that brings the most fear to me personally is that the Constitution and its various provisions could be adapted so much that the original document is no longer able to provide guidance concerning what our founding fathers originally wrote and what our country was based on. Other issues include that often rather than seeking just a new mean to the ends of the Constitution it seems that often proponents want to devise entirely new ends. So this seems as if they are trying to move away from the Constitution rather than stay within it.

Tung 4

The Original Understanding Approach is based on the belief that constitutional interpretation must proceed from an understanding of what those who initially drafted and ratified the Constitution and what it was intended for to accomplish. Those who use this approach rely heavily on documentary evidence of the original understanding of the Constitution. Problems of the Original Understanding Approach include that The Framers exact intentions are difficult to determine in many cases. Not every issue was addressed by all of the delegates and on some issues only a few spoke. Secondly, should we be bound by previous generations intentions? According to those who use the Original Understanding Approach, they approach this criticism with a simple response. Proponents point out that they do not turn to the Founders for specific answers but for general guidance as to what the Constitution was intended to accomplish and how constitutional questions can be resolved in a manner consistent with these overall intentions. Our overall understanding of the Constitution should help us in our understanding of the Framers intention. I would choose to use textual analysis and also precedent if I was a Supreme Court Justice. I also think I would use Original Understanding. I would want to evaluate each case on a case by case basis. But I prefer to use the methods that use the Constitution as a basis and do not try to change it dramatically. I think it was well thought out by our founding fathers and we should be evaluating cases on their merit and on the constitution not trying to change the law or add laws.

Tung 5

Bibliography
Rossum, Ralph, Tarr and Alan. "American Constitutioal Law - The Structure of Government." Vol. 1. Wadsworth Publishihng Company, 2003. 1-20. 10 October 2012.