CONSTITUTIONAL LAW
Fall 2006, W.B. Fisch
Assignment #6
Theories of Interpretation
- Text and Plain Meaning
- CHISHOLM V. GEORGIA
(1793), Wilson's
opinion (handout)
- How persuasive is his
argument from the text?
- NB: he did begin
with discussion of the plausibility of his reading, in terms of
the nature of the Union and
contemporary trends in sovereign immunity
- Logic:
- language could be
limited to States as plaintiffs
- but the State-vs-State category shows that States can be defendants
- Intent of the Framers and
Adoption History
- HANS V. LOUISIANA
(1890) (handout)
- Interpretation of the
11th Amendment, for a case not within its scope
- Logic:
- 11th
Amendment overruled Chisholm
- That constituted an
endorsement of Iredell's dissent in Chisholm,
which was founded on the general law of sovereign immunity!
- Therefore the 11th
Amendment constituted an endorsement of sovereign immunity
- Why shouldn't it have
made a difference that Chisholm was a pure diversity case under
state law, whereas Hans was a constitutional case?
- Precedent and Interpretive
Tradition
- STUART v. LAIRD (1803)
(handout): what exactly does it tell you about the proper interpretation
of a constitutional provision, that
- members
of the First Congress believed that it was not violated by a specific
law that they adopted?
- those
directly affected by the law have followed it from the beginning,
without challenging its constitutionality? How long does that
"acquiescence" have to last, to be binding?
- Harlan, J.
(Grandson of the Hans dissenter!), dissenting in POE V. ULLMAN
(1961) (handout): How does he know that the due process clause embodies a
general concept of liberty?
- Structure and Effective
Functioning of Institutions
- MISSOURI V. HOLLAND
(1920) (handout)
- "Matters
requiring national action"; "power which must belong to and
somewhere reside in every civilized government"
- Extratextual
Values: Natural Law
- Calder v. Bull
(1798), excerpted in CB pp. 467-468
- What is the problem
with judges applying "natural law"?
- Extratextual
Values: Contemporary Public Opinion
- HARPER V. VIRGINIA
BOARD OF ELECTIONS (1966)(handout)
- Can Harlan's
opinion here be reconciled with his opinion in Poe?