Intro to the Constitution

Question 1

What are the 5 “modes” of constitutional interpretation?

Answer 1

Text, Structure, Historical Purpose, Precedent and Practice, and Policy

Question 2

What is the textual mode?

Answer 2

• Meaning text would have had when adopted/enacted
• Conservative mode of interpretation
• Similar to originalism, but originalists look to purpose when ambiguous

Question 3

What is the structural mode?

Answer 3

• Draw inferences from the relationship of provisions to each other, their locations within the Constitution, and the structures of government necessarily framed by the text as a whole

Question 4

What is the historical purpose mode?

Answer 4

• Look at historical background
• Intentions of the drafters and ratifiers based on their statements
• Different words have different meanings based on time period

Question 5

What is the precedent and practice mode?

Answer 5

Look at previous interpretations that have become sufficiently settled to “fix” or liquidate the meaning of an ambiguous provision

Question 6

What is the policy mode?

Answer 6

• Look at consequences and ask which interpretation produces best results according to specific notion of what’s best
• Liberal mode of interpretation
• Functionalism is form of policy interpretation
• “Does anyone get hurt?” test

Question 7

What are the 6 broad themes of the Constitution?

Answer 7

• It’s written
• Republicanism and Popular Sovereignty
• Separation of Powers (split between branches)
• Federalism (split between Fed and States)
• Individualism
• Imperfect congruence between Constitution & justice

Question 8

What are the ideas of sovereignty in the Constitution?

Answer 8

• Sovereignty is invested in the people, not the states or federal government
• In a republic, people elect folks to represent them

Question 9

What are the arguments for dissolving the Articles of Confederation?

Answer 9

• Madison argues dissolving A of C was “absolutely necessary.”
• Lockian theory that sovereignty is in people who can govern themselves
• Needed to change to expand power of Federal government

Question 10

What are the arguments FOR the creation of the First Bank of the United States?

Answer 10

• Hamilton argues the Congress has power to “lay and collect taxes” and bank is necessary and proper for the purpose
• “Necessary” = needful, convenient, useful/conducive

Question 11

What are the arguments AGAINST the creation of the First Bank of the United States?

Answer 11

• Lower standard of necessity would allow you to include almost anything and give gov’t unlimited power
• Can’t justify with taxing power b/c not a tax
• Doesn’t under to borrow money, just makes it possible
• Would destroy all other limits on power

Question 12

What is Madison’s theory of “power checking power”?

Answer 12

Each power is kept in check vis-a-vis others b/c they don’t want their power usurped

Question 13

What is Brutus theory of “power checking power”?

Answer 13

• Power checking power will become power colluding with power to expand the whole size of government to the detriment of the states (Brennan thinks this has happened!)
• The more Congress can legislate, the more the court can decide, which expands the judiciary power

Question 14

What is Hamilton’s argument in favor of judicial review?

Answer 14

Judiciary is the least dangerous branch because they are reactive instead of active (Brennan says Hamilton = wrong!)

Question 15

Marbury v. Madison - Holding?

Answer 15

The Judiciary Act of 1789 is unconstitutional because Congress cannot allow original jurisdiction beyond what’s in the Constitution