What does rule of construction of constitution mean

Please help us improve our site! No thank you. LII Wex Construction. Whether judges have to decide on the constitutionality of lethal injections, NSA spying of emails, bans on same-sex marriage, or laws requiring government workers to contribute to public sector unions, constitutional text and the history of that text simply run out before any useful result can be reached.

The Second Amendment provides a useful and powerful example of why current conditions should be deemed by judges to be much more important to constitutional law than text and history. Obviously the Framers were not aware of either small, powerful guns that could do great damage or assault-type weapons that could spray hundreds of bullets without reloading.

Barnett argues that the resolution of these kinds of Second Amendment issues should be guided by a strong presumption in favor of individual liberty and freedom. Judge Posner and Strauss would not indulge theoretical posturing and generalizing about the role of guns in the eighteenth century.

They would look to see what purposes the law is trying to serve; whether those purposes are likely to be achieved; what consequences result from either upholding or invalidating a particular gun measure; and whether prior cases block the preferred result. In fact, Judge Posner adopted exactly that analysis in a decision striking down an Illinois ban on carrying guns outside the home. See Moore v. Madigan, F. Eric J. In that system, judges have much less discretion, and most cases would be resolved by my particular background rule of almost-complete judicial deference to the political branches.

But that is not now — and unlikely to be anytime in the future — how our system of judicial review works. Why not? See Blackman, supra note 3. The closest Strauss comes to providing an answer to the question is his belief that there are some structural issues of government that need to be settled regardless of whether the settlement is optimal such as the age of the President, the date of presidential succession, and the rule that there must be two senators from every state.

See Strauss, supra note 1, at 56— In particular, it explains the taboo against explicitly ignoring the text. If it were sometimes acceptable explicitly to ignore the text, then it might be more difficult to rely on the text to settle issues like the date on which the President leaves office. If they were, and the Court believed that policy reasons were strong enough, the Justices would in fact ignore the text as they did in the numerous examples Strauss sets forth in his article.

Perhaps Strauss believes that judges should not admit text can be ignored because that would be incorrect in the sense that our general societal commitments to free speech, freedom of religion, bans on cruel and unusual punishments, and so forth, are taken more seriously because of the text. Rights that are explicitly recognized in the text seem to be generally easier for judges and scholars to justify than non-enumerated rights.

For example, the right of women to choose to terminate their pregnancies and the rights of states to be immune from lawsuits brought by citizens of the same state seem more controversial than the right to free speech or the right to equal protection. But the existence of nontextual rights, whether found in substantive due process, the Privileges or Immunities Clause, the Ninth Amendment, or for that matter in natural law, is now virtually universally accepted by judges and scholars.

The real debate is over which specific rights judges should recognize. Here, the constitutional text provides little or no help. Vague commitments to free speech or non-establishment of religion tell judges nothing about how to decide specific free speech and religion cases.

When deciding what level of protection judges should provide to hate speech, obscenity, or commercial speech, for example, or whether legislative prayer or aid to parochial schools amount to unlawful establishments of religion, the text, as Strauss shows, does no work. Whether or not citizens and scholars debating grand theories of constitutional law should declare constitutional text irrelevant, judges deciding cases can truthfully do so. But why should they? There are a number of benefits that would flow from judges fully accepting the descriptive accounts set forth by Judge Posner and Strauss even if Strauss himself is unwilling to go all the way.

First, simply as a matter of governmental transparency, if Judge Posner and Strauss are right that policy considerations and prior cases truly generate results in most constitutional cases, judges should not hide behind textual and historical considerations that do not drive decisions and are merely window dressing.

Second, if policy considerations do drive decisions, judges and lawyers should openly debate them without the veneer of textual and historical considerations that marginalize a comprehensive and open debate. For example, Barnett argues for a libertarian reading of the Constitution that limits government regulation and calls into question much of the New Deal.

Whether his views prevail in litigation will inevitably depend on whether his assessment of the public good is shared by the Justices. Better to have that debate directly than to hide it using technical and largely irrelevant legal jargon. Third, public acknowledgement and acceptance that ambiguous text and contested history do not and should not resolve modern problems might lead to more transparent judicial confirmation hearings where the nominees are asked truly hard questions about their policy views, and both the Senate and the public demand truthful answers.

Recognizing how little text and history matter to modern constitutional problems might start to shake up that process, even if just a little bit. When Judge Posner told approximately one hundred law professors in Chicago that he does not care about constitutional text when deciding cases, the room went suddenly still.

Had he simply said that in his experience text is often unhelpful when deciding difficult constitutional questions, there would have been a collective yawn. Is Judge Posner violating his oath of office by saying that he does not care about constitutional text when deciding hard cases as Barnett politely suggested? Of course not, because, as Strauss demonstrated, our constitutional law is not about the text of the document but about Supreme Court interpretations of that text.

And, neither Strauss nor Judge Posner is the first legal scholar to make that observation. Of these, only the first three, textual, historical, and functional, are methods of interpreting or constructing the written constitution of government , and the historical and functional methods may be more a matter of construction than interpretation.

The last, natural, is construction not interpretation of the unwritten constitution of nature , or the unwritten constitution of society , which form a hierarchy of authority, with the constitution of nature superior to the constitution of society, and the constitution of society superior to the written constitution of government.

The doctrinal, prudential, and equitable methods are not interpretion or construction of any of these constitutions, although judges often claim they are. There is an misguided tendency among modern judges to misrepresent what are essentially prudential or equitable decisions as constitutional constructions. Too many lawyers are complicit in this by casting what are essentially prudential or equitable arguments into constitutional terms.

There is nothing inherently wrong with making prudential or equitable decisions. The U. Constitution confers both law and equity jurisdictions on federal courts, as do the state constitutions.

The problem comes with treating such decisions as establishing precedents, especially binding ones. It is one thing to treat a decision as a precedent that clarifies some ambiguity in the constitution, but quite another to essentially insert a prudential or equitable decision into the constitution as a kind of amendment.

Such decisions must not conflict with constitutions or constitutional statutes, but often do. Doctrinal and prudential decisions are more troublesome. The doctrinal method may be compatible with the written constitution of government if it merely involves clarifications of ambiguities in the original text, but not when those doctrines depart from original legal understanding, as they sometimes do.

Within these methods, we can, by study of the writings of the Founders, and the writings they read, elicit such principles for interpreting or constructing the Constitution for the United States as the following:. The problem with the original methods approach is to identify and state such methods, which at the time of the Founding were mostly not explicit, but an art practiced by lawyers and judges, something they learned to do but probably not to explain, like horse riding or archery.

The main evidence we have of what they were are the Maxims, some of which are listed here.