Question on Approaches to Conlaw Interpretation

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Question on Approaches to Conlaw Interpretation

Postby TFR » Sun Apr 22, 2012 1:52 pm


My Conlaw prof is very into approaches of the different justices (i.e. originalist, textualist, functionalist, interpretivist, naturalist, and who knows what else...)

I have no clue what these are, and Chemerinsky has a few pages or so classifying the approaches into originalist and non-originalist.

I have a strong feeling that there will be an essay on the exam regarding conlaw interpretation, and my approach to conlaw has been more to get the principles out of cases, and be able to apply them efficiently to a fact pattern. I did not really care which justice said what.

Ideally what I am looking for is some type of chart that will have all the approaches, their definitions, and examples of opinions that used them.

Alternatively, is there any supplement that has a good section on this. I've searched all the major ones and have not been able to find one other than the few pages in Chemerinsky which doesnt have enough detail.

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Re: Question on Approaches to Conlaw Interpretation

Postby apl6783 » Sun Apr 22, 2012 4:27 pm

Formalist vs. Functionalist is more of a separation of powers thing. You can make both formalist separation of powers arguments that a statute violates separation of powers principles (and is thus unconstitutional) or you can make functionalist arguments to the same effect, or you can make both.

The E&E has a pretty good discussion of formalist vs. functionalist separation of powers arguments, and separation of powers principles in general.

As to the other stuff, I can't help much.

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Re: Question on Approaches to Conlaw Interpretation

Postby TFR » Mon Apr 23, 2012 8:49 am

Thanks, any suggestions for such an essay for someone who didnt concentrate on the approach taken in all the cases?

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Re: Question on Approaches to Conlaw Interpretation

Postby kalvano » Mon Apr 23, 2012 11:03 am

1. Originalism – The court is bound by how the founders intended the Constitution to be applied.
2. Text – The court is bound by the actual reading of the text, not by the founder’s intention.
3. Structure – The structure created in the Constitution requires the result.
4. Natural Law – The Constitution is a living, breathing, flexible document.
5. Representative Reinforcement – The goal is to reinforce the spirit of when the Constitution was created (when people came together and made decisions above their self-interests).

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