Constitutional Interpretation and Reasoning


Legal Approaches

I.    Textual Analysis

II.    Precedent

III.    Constitutional Doctrine (example:  the "Three Tier Test")

IV.    Logical Reasoning

    A.    Deductive Reasoning

    B.    Inductive Reasoning

    C.    Reasoning by Analogy

                  This involves extending a legal rule to a fact situation not covered by its express words.   For example, if there was a rule prohibiting the executor of a will from bringing an action outside of the state of his appointment, this rule might be extended by analogy to an administrator of an estate.

    D.    Dialectical Reasoning

              This process is one in which a new problem may exist for which no suitable rule has been created, or two or more rules conflict, or in which an existing rule is deemed inappropriate, thus there is produced a new rule by joining two or more previous ones.

    E.    Typical Process

        1.    Discovering pertinent issues in present case
        2.    Identification of prior cases exhibiting similarity with present case
        3.    Discovery and announcement of principles of law inherent in similar cases
        4.    Statement of support or opposition (with reasons) for adherence/rejection of principles found
        5.    Application of rule of law to present case
        6.    Decision in present case

V.    Adaptive Interpretation

VI.    Intent of Framers & Originalism

VII.    Textualism

Extra-Legal Approaches

I.    Strategic Considerations

II.    Political Considerations

III.    Value Considerations

 


Key Web Sites

The Jurisprudence of Constitutional Interpretation  (Excellent Summary of Approaches to Interpreting the Constitution)

An Exercise Relating to Judicial Review

Theories of Constitutional Interpretation