Lecture 18: Constitutional Interpretation, I
The Mysteries of the Constitution
There are two great legal traditions: common law and civil law.
- From Great Britain, we inherited the common-law tradition, which continues to govern torts and contracts in 49 states.
- From Continental Europe (and Rome), we inherited the civil (statutory) tradition.
The Common Law
- Common law is judge-created.
- The principle of stare decisis is central: respect for precedents.
- Sharp distinction between what the law is (the underlying principle) and the words of past opinions, decisions.
- Dominated legal training in U.S. since Harvard adopted the ³case method².
The Civil Law Tradition
- Dates back to ancient Rome, especially the Code of Justinian.
- Revived during the Enlightenment: the codification and rationalization of the law.
- Clearest expression: Napoleonic code.
- Moved the Founders to adopt a ³written constitution².
Principles of Civil Law Interpretation
- Focus remains on the text of the statute, not on past decisions.
- No role for stare decisis.
- Emphasis on grammar, linguistic structure, overall context.
- Jurists interpret the code teleologically: discerning the organic purpose of the code as a whole.
Written vs. Unwritten Constitutions
- In Great Britain, the common law tradition coexists with an unwritten constitution.
- In continental Europe (e.g. Germany), we have written constitution and civil law tradition.
- Only in the U.S. do we combine common law with written constitution.
Can a Constitution be Written Down?
- Article VI: "This Constitution...shall be the supreme law of the land."
- Article VII: "The Ratification of the Conventions of nine States shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same."
- There must be some principle making the process by which the Constitution was drafted and ratified valid.
- This principle surely must be part of our "constitution", and yet it cannot be part of the text so established.
- The text of the Constitution cannot be the constitution of the United States.
Last updated April 20, 1999
Created by: Robert C. Koons
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