Constitutional Interpretation and Reasoning
Legal Approaches
I. Textual Analysis
II. Precedent
III. Constitutional Doctrine (example: the "Three Tier Test")
IV. Logical Reasoning
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
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