April 2nd, 2015Constitutional and Statutory Interpretation Kent Greenwalt - The doctrine of precedent - Approaches to fit traditional legal usage: o “Interpretation” is not required when the text is clear and decision is simple It take place only when decision is difficult o “Interpretation” involves discerning the original meaning of a statutory or constitutional provisiono Distinguishes between discerning the conventional practices and usages of language and ‘interpreting’ the broad significant of a text or practice o Divides the interpretation of concepts from their application - The only time interpretation is needed is when the words are broad or vague - Interpretation is more needed for the constitution rather than statutes but they’re both importantConstitutionalism - Constitutionalism is the idea that government can and should be legally limited in its powers, and that its authority or legitimacy depends on its observing these limitations. o Constitutionalism  A minimal and a rich sense - A constitution consist of a set of norms (rules, principles, or values) creating, structuring, and possibly defining the limits of government power or authority- When we talk about constitutionalism we not only mean that there are norms creating legislative, executive, and judicial powers, but that these norms impose significant limits on those powers - Constitutionalism in this richer sense of the term is the idea that government can/should be limited in its powers and that its authority depends on its observing these limitations - The English legal theorist John Austin who, like Hobbes, thought that the very notion of limited sovereignty is incoherent - For Austin, all law is the command of a sovereign person or body of persons, and so the notion that sovereign could be limited by law requires a sovereign who is self-binding, who commands him/her/itself - His theory applies to the British Parliamentary system but what about governments like the US where it is clear that the powers ofgovernment are legally limited by a constitutiono Austin’s answer was to appeal to popular sovereignty, the idea that a sovereignty resides in ‘the people’, that is, the population at large o Sovereign Versus Government  Austin account- Needs to distinguish between the two different concepts o Sovereignty (the possession of supreme) Statutory Interpretation- General Parameters o Courts usually do not interpret these, it is normally lawyers, private citizens, and companies.  Courts are the final interpreters o 3 issues with statutory interpretations  Is meaning fixed at enactment or does it evolve?  How far is meaning determined by reader understanding?  What is the comparative important of narrow v. broad views of interpreting o Communication  A communication is incomplete if it fails to indicate how a subject it covers should be resolved  How to Resolve the issue of incomplete or vague direction - Intention of the speaker - What the listener would understand it to mean  Problem is that you can say shut the door and intend to say shut the window- So at that point the listener would shut the door wrongly - So we then need to look at what the listener understand o This is complicated because it changes over time as words get different meanings  Therefore we cannot depend on actual language when interpreting - Need to resolve with political and legal theory - Evolutionary v. Fixed Meaning o Evolutionary  Meaning of statutes change with the times o Fixed/Originalist  Meaning is what the statute meant at the time it was created - Readers understanding and legislatures intent o Use outside evidence to understand what legislature intended o Read with respect to social context - How to understand legislature intento Not about whether a legislature as a group intent of the legislature, but whether judges should take into account the attitudes of legislatures in interpreting statutes  Because the intent of the minority should matter  Legislatures may vote for an opinion they do not endorse so that they mainly gain votes for another statute - This intent is not reflected in the past statute - Those who vote nay are just as important because the legislature is a body, not just a majority figure o Judges could also make judgments based on what a reasonable legislature would come to agree onLegal Formalism, Legal Realism, and the Interpretation of Statutes and the ConstitutionRichard A. Posner - Posner considers concepts of formalism and realism to be meaningful and useful in common law reasoning, but in interpretation to be useless and forbidden (different intellectual tools should be used) Intro - Interpretation as mental activity distinct from both logical reasoning and policy analysis - Posner assumes that the function of judge-made constitutional law is to interpret the written constitution. Formalism and Realism Defined - Formalism o Use of deductive logic to derive the outcome of a case from premises accepted as authoritative  Logic can have correct or incorrect outcome depending on whether it is used correctly - Realism o Policy analysis  Deciding a case so that its outcome best promotes public welfare in non-legalistic terms - Considers Dworkin’s principles policy considerations - There can be good/bad Formalism/Realism - These terms can only be used in discussing common law o Common law has a logical structure and its premises are determined by notions of public policy - Statutes and constitutions are communications and neither logic nor policy is the key to decoding them. Formalism, Realism, and the Common Law - Conceptso E.g. negligence and possession  Furnish major premises for the decision of cases - Facts of the case are the minor premise - Choice of premises is critical, which is where public policy comes in o E.g. why enforce cases that were voluntarily entered into?  Public policy determines the premises (realist), and logical deduction follows from the premises (formalist) - E.g. what counts as a case should not be a semantic question but a policy question - Langdelismo Fallacy in legal reasoning in which the conclusion is smuggled into the premise - Holmes o Law isn’t a set of preexisting concepts of fixed scope but a tool of government which would and should be reshaped as desires of community change - Judges can change the concepts (e.g. negligence) that form major premises for common law reasoning based on changing