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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

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Class 4 August 30, 2006

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  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)

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