7/29/2019 Illuminating Text and and Structure With History
1/19
Historical Or Originalist Approach
-By Laurence Tribe
LAURORA, Maria Cecilia O.
7/29/2019 Illuminating Text and and Structure With History
2/19
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)
7/29/2019 Illuminating Text and and Structure With History
3/19
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?
7/29/2019 Illuminating Text and and Structure With History
4/19
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
7/29/2019 Illuminating Text and and Structure With History
5/19
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
7/29/2019 Illuminating Text and and Structure With History
6/19
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
7/29/2019 Illuminating Text and and Structure With History
7/19
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
7/29/2019 Illuminating Text and and Structure With History
8/19
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?
7/29/2019 Illuminating Text and and Structure With History
9/19
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
7/29/2019 Illuminating Text and and Structure With History
10/19
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
7/29/2019 Illuminating Text and and Structure With History
11/19
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
7/29/2019 Illuminating Text and and Structure With History
12/19
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
7/29/2019 Illuminating Text and and Structure With History
13/19
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
7/29/2019 Illuminating Text and and Structure With History
14/19
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
7/29/2019 Illuminating Text and and Structure With History
15/19
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
7/29/2019 Illuminating Text and and Structure With History
16/19
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
7/29/2019 Illuminating Text and and Structure With History
17/19
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
7/29/2019 Illuminating Text and and Structure With History
18/19
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
7/29/2019 Illuminating Text and and Structure With History
19/19
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