illuminating text and and structure with history

7/29/2019 Illuminating Text and and Structure With History

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Historical Or Originalist Approach

-By Laurence Tribe

LAURORA, Maria Cecilia O.


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Constitution is a purposive document

The task of interpreting its words, phrases andclauses must be distinguished from the task ofcomposing a dictionary

What the text should convey to a reader wholooks to it across the generations for instructionson required, permitted or prohibited courses ofaction?

Influences of the Constitution and itsAmendments Response to difficulties in Articles of Confederation

and other laws

History (i.e. American Revolution)

European influences and ideology (i.e. Reformation,Renaissance)


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Relevance and persuasiveness of these bodyof ideological assertion and politicalarguments: Ethical Approach

Influence of changes in judicial thinkingabout constitutional law: Doctrinal or StareDecisis Approach

Influence of history upon the meaning ofwords, phrases and clauses of constitutional

provisions.What weight should we give to what we know

of original understanding of constitutionallanguage?


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What those provisions, or that design, meant

at the time they were conceived and later at

the time became law?

Linguistic community within which a piece ofconstitutional text is initially composed,

communicated and understood

Example:

Interpreting law as a concrete rule: 7thamendment

Retains significance only as an evocation of a

general principle: Article 1 8, Clause 11


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Argument against Original Meaning:

Subjective and unenacted Intentions of a

group of people

There is first a struggle whether thedeparture from original meaning is justified

When new meaning should be resisted?

Destabilizing and inconsistent with the basic

structure Example: Domestic Violence of Article IV

4


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Original meaning/ Linguistic or semanticintentions What the text of the Constitution meant at the

time of its adoption

Define what a lawgiver intends to communicateor means to say

Original intent/ Legal or PoliticalConsequentialist intentions

What the people connected assumed or imaginedwhat the adoption would do in various areas orgroups as a result of the law

Example: Racial Segregation and Death Penal


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The text is binding as law because the peopleconsented to it through acts of ratification

What they meant to be ratifying, i.e. theoriginal meaning of the text, is thus law andanything else lacks legitimacy

Original intent Subjective intentions and understandings

Intentions not presented to the ratifiers in theform of text cannot be transmuted into law

Relevance: means of shedding light on the values

the provision protects


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Look into the background why the framers

intended in enacting the provision and what

ratifiers generally assumed it would mean.

Example: McCulloch v Maryland Tenth Amendment: Powers not delegated

Powers not expressly delegated or powers not

expressly or impliedly delegated?


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Arcane manner: employing terms of artunderstood within the historically relevantspecialized community

Viewed in terms of constitutional structureand history, competing visions of what theConstitution as a whole is for and thedoctrinal claims of stare decisis.

Example

Treaty vs Compacts or Agreements functional view

Bill of attainder basic notions of fairness andseparation of powers


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Ordinary Language

William Winlow Crosskey: Word meanings

common at the time the Constitution was ratified

John Marshall in Gibbons vs. Ogden: The

Constitution itself may change what all America

understands.

Natural sense of ordinary terms respect original

meaning but may require to give this term a present

meaning Mix of dynamics and constants

Mea


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Forbidding Abuse

Expressing a broad principle whose essence might

best be preserved by reading its precise contents

differently as times change to prevent

occurrence or recurrence of abuse

Example:

Speech

Unreasonable Search and Seizures of House, papers

and effects


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Preserving Practices

Nailing down a historic practice by securing it

against the winds of change

Considerations to identify or establish and assure

the continuation of, particular concrete

institutional practices


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Rights Securing Provisions may either be:

Abuse avoiding (principle-generating)

Designed to secure rights against the government

Bill of Attainder

Ex post Facto Law

Prevent abuses solely by preserving a particular

institution

Writ of Habeas Corpus

Grand Dury Practice-preserving (non-principle-generating)

Basic architecture of Power

Specific formulas for what is permitted and what

forbidden


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Provision that is abuse avoiding need not be

rights-securing

Example:

Publishing Statement of Account of Public Receipts and

Expenditures

Prohibitions on state alliances or treatise or import or

export duties without the consent of Congress


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Provoking revision to avoid intolerable

conflict with subsequent constitutional text

Occurs when a constitutional amendment soalters the rest of the Constitution that, upon

referring back to the Constitutional provision in

question, we are bound unless we are satisfied

a Constitution that merely collects contradictions

to recognize a revision in that Constitutionalprovision even if the amendment did not in so

many words decree a change in that provisions

words


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Provoking revision to render a constitutional

provision more harmonious with, and more

faithful to, the provisions basic meaning inlight of subsequent developments whether or

not in the form of new Constitutional

language

Altering the setting/ ground on which suchunderstanding were built

Suggest new questions to be asked regarding the

old provisions


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Interpretation of the constitution is changed

due to following factores:

Important political and social moments of

transition

Economic realities

Technology

History: shift in the Doctrines


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When we are dealing with words that are also aconstituent act, like the Constitution of the UnitedStates, we must realize that they have called into lifea being the development of which could not havebeen foreseen completely by the most gifted of its

begetters. It was enough for them to realize or tohope that they had created an organism; it has takena century and has cost their successors much sweatand blood to prove that they created a nation. Thecase before us must be considered in the light of our

whole experience and not merely in that of what wassaid a hundred years ago.

- Justice Oliver Wendell Holmes


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In agreement with Tribe that Original meaning

should be used as a starting point and that in

some cases, we must depart from it in the light

of historical changes

Philippine Constitutional law is relatively young.

Heavy reliance on original intent as shown in the

deliberations of constitutional convention

Use of original intent (framers) helps in

explaining the original meaning (peoples

understanding) Legaspi v. Minister of Finance

illuminating text and and structure with history

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