6 modalities of constitutional interpretation pdf

Constitutional interpretation under the new south african order adrians janet hofmeyr a dissertation submitted to the faculty of law, university of the witwatersrand, johannesburg, in fulfilment of the requirements for the degree of master of laws johannesburg, 1998. The modalities of constitutional interpretation continued the early controversy over slavery week 4 please read the rest of assignment 5 and assignment 6 on pages 86 to 121. Away from institutionalism and toward individualism 100. Access to higher education article 6 the republic shall, because of the vital role assigned to the individual citizen under this constitution for the social, economic and political well being of liberia, provide equal access to educational opportunities and facilities for all citizens to. Principles of harmonious construction must be applied. This text of the constitution is a copy of the text enrolled on november, 2019 pursuant to article 25. Constitutional law outline professor raskin general constitutional interpretation i. Randall kelso, styles of constitutional interpretation and the four main approaches to.

According to bobbitt, statements of constitutional law are true or legitimate only ff the modalities arc employed, l these modalities are. Constitutional law combination outline 1constitutional. Constitutional courts, constitutional interpretation, and. If the words are clear and unambiguous, they must be given the full effect. Jurisdiction of supreme court and inferior federal courts. Constitution and analysis and interpretation of the u. If a constitutional amendment passed today, we would expect a court five years. Now one prominent cum laude scholar columbia law school named phillip bobbitt calls these the modalities of constitutional interpretation. A read is counted each time someone views a publication summary such as the title, abstract, and list of authors, clicks on a figure, or views or downloads the fulltext.

Constitutional interpretationconstitutional interpretation comprehends the methods or strategies available to people attempting to resolve disputes about the meaning or application of the constitution. As someone who teaches constitutional law with the primary goal of educating future. This book is intended as an overview of the debate on constitutional interpretation, and employs historical, textual, doctrinal, prudential, ethical and structural methods of criticism. The theoretical approaches to constitutional interpretation are first briefly discussed. Vested rights and reliance o historical intentionalist. The constitution of the united states d1 appendix e. Modalities bring us towards argumentative certainty. Con law constitutional law outline professor raskin. An introduction to constitutional law brown university. Modalities, scope and costs of action under article 37. The role of intentions in constitutional interpretation keith e. Interpretation listing modalities of constitutional argument.

May 23, 2011 in it i offer a short primer on the modalities of constitutional argument, as philip bobbitt has described them. Constitution with intext annotations of cases decided by the supreme court of the united states. Encyclopedia of the american constitution dictionary. The interpenetration of aspirationalism and historicism in u. Not only was the principle of parliamentary sovereignty replaced by constitutional supremacy, but the interpretation clause stated the. If a constitutional amendment passed today, we would expect a court five years from now to ask what we intended to adopt. These six modalities of constitutional argument are. Rwandas constitution of 2003 with amendments through 2015. This topic page concerns the various interpretations of the constitution that have evolved over time. The article explains the topical approach to constitutional argument and contrasts it with philip bobbitts wellknown theory of modalities of constitutional argument. Please attend constitution day debate sponsored by the janus forum at 4. Modalities of constitutional interpretation bonus content. Analysis and interpretation, popularly known as the constitution annotated, encompasses the u.

Unlike bobbitts model, the topical approach is consistent with many different kinds of constitutional theories, including originalist theories. Meditations on bobbitts theory of the constitution ian c. Phiup bobbirr, constitutional interpretation 1991, discussed infra. The united states supreme court voted 6 to 3 against ernest cham bers. The topics in constitutional interpretation scholarship repository. Constitution was constructed with six 6 basic principles in mind. Biographical chart of supreme court justices since 1900 b1 appendix c. With this insight in place, bobbitt set about describing the accepted grammar of american constitutional argument. If one were simply to view the constitution as ordinary law, this outcome.

Part i the following excerpts from supreme court opinions illustrate a variety of approaches to interpreting the constitution in terms of the sources of guidance relied on. Law outlines constitutional outlines this is an extract of our congressional power to enforce the reconstruction amendments document, which we sell as part of our constitutional outlines collection written by the top tier of u. Levinsons seventh modality of justice is reflected in this article in non. The first is the most familiar to all of you, and thats an appeal to text. One of the bestknown, most comprehensive, and widely read constitutional law textbooks published today. Can the same be said for a court 100 or 200 years from now. Styles of constitutional interpretation and the four main approaches to consitutional interpretation in american legal history r. Time chart of the united states supreme court a1 appendix b. This article considers the procedural and resulting legitimacy issues of constitution making and fundamental constitutional amendment. It is an open question and a hotly contested one in constitutional theory whether there must be some rules that are generated outside these six modalities. In it i offer a short primer on the modalities of constitutional argument, as philip bobbitt has described them. Essay the modes of constitutional interpretation 37 appendix a. General rules of interpretation of the constitution. Constitutional interpretation, or constitutional construction, the term more often used by the founders, is the process by which legal decisions are made that are justified by a constitution, although not necessarily correctly.

He emphasizes the modalities of constitutional argument. Originalism better respects the notion of the constitution as a binding contract. Source for information on constitutional interpretation. Theories of constitutional interpretation umkc school of law. The historical argument is largely, though not exclusively, associated with the theory of original intent or original understanding, under which constitutional and. Constitutional construction is the part of constitutional interpretation in which interpreters implement and give effect to the constitutionfor example, by creating doctrines, practices, and institutions. History and constitutional interpretation university of arkansas. Scholarly writing has identified six forms of constitutional argument or construction that may be used by courts or others in deciding a constitutional issue. Bartrum language is the fleshgarment, the body, of thought.

It is made, enacted and adopted by an assembly or council called a constituent assembly or constitutional council. Cases arising under the constitution, laws, and treaties of the united states. The constitutional topics pages at the site are presented to delve deeper into topics than can be provided on the glossary page or in the faq pages. Selected theories of constitutional interpretation congressional research service 1 introduction the united states constitution, as amended, is a complex legal document which sets out the structure of the federal government, the legal authorities of that government and, to a lesser. Of course, other scholars may have different categories, but these largely overlap these six forms. It considers only those political and economic factors which contribute to specific constitution making features. The letters of the constitution are fairly static and not very easy to change but the laws enacted by the legislature reflect the current state of people and are very dynamic. Constitutional fate undertakes, in biographical form, an exploration of each of these modalities of argument. Constitution of mauritius chapter i the state and the constitution article1. The 1994 interim constitution apart from its constitutional implications and political ramifications, it also changed the interpretation of the statutes as we knew it. As someone who teaches constitutional law with the primary goal of educating future practitioners, i have always brought bobbitts very practical while also very theoretical work into my classroom discussions. The idea of constitutional construction is central to the new originalism, which divides constitutional interpretation into two tasks. Shabalala v the attorneygeneral of transvaal nyamakazi v president of bophuthatswana.

Whittington ronald dworkins effort to distinguish multiple layers of intention that are embedded in the constitutional text has been taken as a substantial critique of traditional originalist jurisprudence. Outline the steps and use of modalities in justice holmes opinion in missouri v. New york widely considered to be a bad nonoriginalist decision. The case is then analysed in respect of section 3 5, chapter 3 and the constitution itself in order to determine the significance. Words of power constitution gives powers to act, otherwise it would be a laundry list.

Theories of constitutional interpretation modern democracy invites us to replace the notion of a regime founded upon laws, of a legitimate power, by the notion of a regime founded upon the legitimacy of a debate as to what is legitimate and what is illegitimatea debate which is necessarily without any guarantor and without any end. Constitutional law and interpretation wiley online library. This led me to propose a new list of modalities one that allowed for the many different uses of history in constitutional argument, and that did not limit historical argument to adoption history or original intentions. Physical assessment examination study guide page 2 of 39 adapted from the kentucky public health practice reference, 2008 and jarvis, c, 2011. Judicial interpretation refers to different ways that the judiciary uses to interpret the law, particularly constitutional documents and legislation. Critically, bobbitt refers to these six argument types as constitutional modalities. This book is intended as an overview of the debate on constitutional interpretation, and employs historical, textual, doctrinal. Constitutional interpretation 89 speaking up and speaking more 98 exhibit 2. Holland, and determine whether the prudential or doctrinal modality is more pivotal. Principles of constitutional construction constitutional interpretation, or constitutional construction, the term more often used by the founders, is the process by which meanings are assigned to words in a constitution, to enable legal decisions to be made that are justified by it. Constitution of the state of kansas secretary of state. For instance, a logical modality may be attributed to a proposition, p, by saying that it is logically necessary or contingent or logically impossible, that p. Bobbitts theory of the modalities was inconsistent with all forms of originalism.

Constitutional value judgments and interpretive theory choice. Chambers follow precedent of lemon at some time there is no doctrine, so this cannot exist on its own. These procedures are partly related to the different historical scenarios and substantive material factors that give rise to econstitutions. Selected theories of constitutional interpretation congressional research service 2 theories should be applied. The principles of constitutional interpretation the. The six forms, or modalities as he refers to them, are drawn from p. Methods of constitutional interpretation oxbridge notes. Use all six kinds of constitutional argument to write an opinion in home building and loan association v. It is the way in which we characterize a form of expression as true. This is followed by a description of the four respective judgments in the decision. These constitutions are generally rigid and little changing, adapting slowly to advances in political views, popular opinion, technology, and changes in government. The following are some of the general principles formulated by sa courts.

Modalities of constitutional interpretation o doctrinal brennan dissent in marsh v. Pdf constitutional interpretation in a globalised world. Constitution is supreme law this constitution is the supreme law of mauritius and if any other law is inconsistent with this. It also tries to show how constitutional issues are addressed by different people, such as the president, members of congress and students of political science. Bobbitt identifies several forms of argument or modalities that comprise the practice of constitutional interpretation. The understanding of the framers and ratifiers of a constitutional clause provide those neutral criteria. Interpretive norms by which we interpret the constitution.

It is duly passed after a thorough discussion over its objectives, principles and provisions. Constitutional interpretation is an issue which has come under considerable scrutiny in the usa, in the light of such happenings as the nomination of robert bork for the supreme court, and the irancontra affair. Styles of constitutional interpretation and the four main. Footnotes 759 the six forms, or modalities as he refers to them, are drawn from p. They are fair and legitimate method of interpretation. Principles of constitutional interpretation introduction. Physical assessment examination study guide nursing assessment. The constitution of the united states preamble we the people of the united states, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do. It is these basic guides that kept the authors of the constitution on track and guided the content of the worlds greatest document of real freedom. The constitution of the united states confers full power on the federal government to maintain and perpetuate its existance existence, and whensoever any portion of the states, or people thereof attempt to secede from the federal union, or forcibly resist the execution of its laws, the federal government may, by warrant of the constitution. Textual the language of the constitution, not just that which is at stake but other parts too intratextual, plain meaning approach. Constitutional interpretation the modalities of constitutional argument first, what is a modality. The state mauritius shall be a sovereign democratic state, which shall be known as the republic of mauritius.

So you see, textual arguments are usually pretty clear and straight forward. Phillip bobbitt calls these the modalities of constitutional interpretation. Mar 31, 2017 principles of constitutional interpretation introduction. Blaisdell which affirms the minnesota supreme court holding and. Styles of constitutional interpretation and the four. The concept of constitutional interpretation is foreign in some countries, where the constitution makes a reasonable effort to cover every eventuality. As bobbitt puts it, there is no constitutional argument outside these forms. Leaving it to the people to amend their constitution when need be promotes serious public debate about government and its limitations.

They are what constitutional argument depends upon, what must be understood in order to engage in the practice. A supreme constitution must be given a generous and purposive interpretation. Constitutional controversies are about whether an official act is consistent with, and authorized by, a constitution or constitutional statute or. It is written in the form of a book or as a series of. Increasingly, constitutional theorists are turning attention away from the modalities of constitutional interpretation text, history, structure, etc. See bobbitt, constitutional fate, supra note 2, at 6 discussing united states. Like many contemporary scholars, bobbitt believes that the constitutions durability rests, in part, in the flexible manner in which it can be and has been interpreted since its creation. This is an extract of our congressional power to enforce the reconstruction amendments document, which we sell as part of our constitutional outlines collection written by the top tier of u. Constitutional controversies are about whether an official act is consistent with, and authorized by, a constitution or. Philip bobbitt later identified six modalities of constitutional. I just wanted to give you sort of a basic overview.

Methods of interpreting the constitution juridica international. Arguments which deviate from these modalities are liable to be weak ones. Principles of constitutional interpretation constitutional interpretation, or constitutional construction, the term more often used by the founders, is the process by which legal decisions are made that are justified by a constitution, although not necessarily correctly. Chapter 6 the regulatory power of the states in the federal system 362 c hapter 7 property rights and economic liberties 410 a ppendix a.