Debate Magazine

Rules of Constitutional Construction

Posted on the 28 June 2012 by Mikeb302000
Just a simple list, but something people need to be aware of before they start coming up with nonsense. It was found here

Within these methods, we can, by study of the writings of the Founders, and the writings they read, elicit such principles for interpreting or constructing the Constitution for the United States as the following:

  1. The Constitution is the written document. Although it may be considered to include the understandings of its words as of the time of ratification, it does not include the subsequent body of practices or precedents upon which constitutional decisions might be based, which may or may not be consistent with it, or authorized by it. The written document refers to itself as "this Constitution", and provides for only four methods by which it may be amended, all of which apply only to the written document.
  2. The authority for provisions of the Constitution is the ratifications and state admissions. Current consent or acquiescence, or lack thereof, to the Constitution or any practice, does not affect the original constitutive acts, and has no authority, unless expressed through adoption of amendments as provided in Article V.
  3. Provisions of the Constitution are mutually consistent. There are no internal logical contradictions, except that a provision of an amendment inconsistent with a previous provision supersedes that provision.
  4. None of the words are without force and effect, except those superseded by amendments, unless such amendments are repealed. Except for the statement of purpose in the preamble, every word was intended by the Framers to be legally normative, and not just advisory, declaratory, aspirational, or exhortatory. Verba intelligi ut aliquid operantur debent. Words should be interpreted to give them some effect.
  5. Rights and powers are complementary. Every right recognized by the Constitution is an immunity, that is, a right against a positive action by government, and is equivalent to a restriction on delegated powers. Conversely, every delegated power is a restriction on immunities. An immunity may be expressed either as a declaration of the right, or as a restriction on powers.
  6. There are no redundancies within the original unamended Constitution. However, amendments may be alternative ways of expressing equivalent content in the original unamended Constitution or previous amendments. More specifically, the Bill of Rights added no new content not implicit in the original unamended Constitution, except the twenty dollar rule of the Seventh Amendment.
  7. The Constitution was intended to define a functionally complete and harmonious system. That does not mean, however, that all powers anyone might think the nation or any branch, level, office or department should have, were actually delegated.
  8. Original "intent" is functional, not motivational. The private motives of the Framers or Founders are irrelevant and largely unknowable, and likely to have been diverse. The common law rule of interpretation understood by the Founders was to discern the functional role of elements of the law, not the private purposes of the lawgivers.
  9. The ratification debates are the best evidence of original understanding. The arguments of those opposed to ratification are not just the positions of the losers in the debates, which some might dismiss as not indicative of original understanding. As the debates proceeded, understandings evolved and clarified, and positions changed. Most opponents were satisfied by adoption of a Bill of Rights, and by assurances by the proponents concerning how the words of the Constitution would be interpreted, and those assurances must be considered part of the original understanding. That means that a construction to which the more significant "anti-federalists" would object is almost certainly incorrect.
  10. Powers are narrow, rights broad. The entire theme and tenor of the ratification debates was that delegated powers were to be interpreted as strictly as possible, consistent with the words, and rights as broadly as possible, with the presumption in favor of the right, and the burden of proof on those claiming a power. Potestas stricte interpretatur. A power is strictly interpreted. In dubiis, non præsumitur pro potentia. In cases of doubt, the presumption is not in favor of a power.
  11. Delegated powers cannot be subdelegated. The U.S. Constitution vests all legislative powers in Congress, and all judicial powers in the Supreme Court and inferior courts, except as specifically expressed. Executive branch officials may subdelegate but must remain responsible for the actions of their subordinates. There can be no authority exercised that is not accountable through constitutional officials.Delegata potestas non potest delegari. A delegated power cannot be delegated. 9 Inst. 597.
  12. The power to regulate is not the power to prohibit all modalities of something. It is only the power to issue prescriptions to "make regular", enforceable only by deprivations of property or privileges, not of life, limb, or liberty. There must always be some modality that is not prohibited.
  13. Implied powers are only to "carry into Execution" an expressed power and not to do whatever is necessary to achieve the intent for which a power might be exercised. Delegation of a power is delegation of the right to make a certain kind of effort, not to do whatever is necessary to get a desired outcome.
  14. There can be no common law crimes. They are in conflict with the prohibitions on ex post facto laws and bills of attainder.
  15. Rights may not be disabled or unduly burdened by legislative or executive process. "Due" process is judicial only, involving the granting of a petition to disable a right of the defendant, with the burden of proof on the plaintiff or prosecutor, and with the defendant having at least those minimum protections that prevailed during the Founding. with similar disablements having similar standards of proof and protection.
  16. There is no right without a remedy. Ubi jus ibi remedium. There must always be an accessible forum in which a complainant has oyer and terminer for any petition.
  17. The Founders were learning. "Original meaning" is not just about what the Founders consciously meant at the moment of ratification, but includes what they would discover with further study of the legal tradition they invoked in the words they chose. Thus, they referred to authors like Blackstone and Coke when they were unsure what they meant, and so must we.
  18. Early practice indicative but not dispositive. Early practice by the Founders may provide evidence of their aspirations in the words they chose, but should not be regarded as perfect expressions of their intent. Practice can represent compromise with practical concerns and may lag behind the ideals contained in the words.
  19. Mental models of mental models. Each of us has a mental model of the world that includes a model of the mental models others have of the world. Communication is possible only to the extent that our mental models of the mental models of others are somehow accurate or congruent. When a lawgiver issues a law, a command to others for future compliance, he is relying on others to understand his words the way he does, and those others are relying on him to use words with the meanings they have for them. But words are an imperfect way to convey meanings, and if the recipient of the command cannot interrogate the lawgiver for his meaning, he must try to improve his mental model of the lawgiver's mental model by such means as learning to accurately predict what the lawgiver will write about matters the recipient has not previously read.
  20. Find the right level of abstraction. It was common for the Founders to use somewhat more concrete words to mean broader principles. Thus, "press" or "arms" is not limited to the technology of the time, but refers to the general function they served. "Militia" does not mean merely those legally obliged to respond to an official call-up, but defense activity generally.

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