Phl 347
Lecture 18: Constitutional Interpretation, I
The Mysteries of the Constitution

• 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."

A Meta-Constitution?

• 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.

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