PRINCIPAL TO BE APPLIES IN INTERPRETING THE CONSTITUTION :AN ANALYTICAL STYDY

HIMANSHU BHANDARI BA.,LLB 9th SEMESTER ROLL NO. : A3208307013 SUBJECT: INTERPRETATION

ACKNOWLEDGEMENT

I would like to thank my lecturer Mr. me and helping me throughout my project.

for guiding

Also I would like to thank ALS institution our Director sir Maj. Nilendra Kumar for giving me an opportunity to work on this project. Last but not the least I would like to thank my family and friends. Without there support and concern I would not have been able to make my project.

Thank you.

INDEX
1. Introduction 2. General features 3. There are five sources that have guided interpretation of the Constitution: 4. Definitions 5. Eight Reasons to be an Originalist 6. Eight Reasons to be a Non- Originalist 7. Judicial Interpretation 8. Principles of Constitutional Construction 9. Modes Of Constitutional Interpretation

INTRODUCTION
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is. When these principles are written down into a single or set of legal documents, those documents may be said to comprise a written constitution. Constitutions concern different levels of organizations, from sovereign states to companies and unincorporated associations. A treaty which establishes an international organization is also its constitution in that it would define how that organization is constituted. Within states, whether sovereign or federated, a constitution defines the principles upon which the state is based, the procedure in which laws are made and by whom. Some constitutions, especially written constitutions, also act as limiters of state power by establishing lines which a state's rulers cannot cross such as fundamental rights. The Constitution of India is the longest written constitution of any sovereign country in the world, containing 444 articles, 12 schedules and 94 amendments, with 117,369 words in its English language version, while the United States Constitution is the shortest written constitution, at 7 articles and 27 amendments. The term constitution comes through French from the Latin word constitutio , used for regulations and orders, such as the imperial enactments (constitutiones principis: edicta, mandata, decreta, rescripta). Later, the term was widely used in canon law for an important determination, especially a decree issued by the Pope, now referred to as an apostolic constitution.

GENERAL FEATURES
Generally, every modern written constitution confers specific powers to an organization or institutional entity, established upon the primary condition that it abides by the said constitution's limitations. According to Scott Gordon, a political organization is constitutional to the extent that it "contain[s] institutionalized mechanisms of power control for the protection of the interests and liberties of the citizenry, including those that may be in the minority."

The Latin term ultra vires describes activities of officials within an organization or polity that fall outside the constitutional or statutory authority of those officials. For example, a students' union may be prohibited as an organization from engaging in activities not concerning students; if the union becomes involved in non-student activities these activities are considered

ultra vires of the union's charter, and nobody would be compelled by the charter to follow them. An example from the constitutional law of sovereign states would be a provincial government in a federal state trying to legislate in an area exclusively enumerated to the federal government in the constitution, such as ratifying a treaty. Ultra vires gives a legal justification for the forced cessation of such action, which might be enforced by the people with the support of a decision of the judiciary, in a case of judicial review. A violation of rights by an official would be ultra vires because a (constitutional) right is a restriction on the powers of government, and therefore that official would be exercising powers he doesn't have.

In most but not all modern states the constitution has supremacy over ordinary statute law; in such states when an official act is unconstitutional, i.e. it is not a power granted to the government by the constitution, that act is null and void, and the nullification is ab initio, that is, from inception, not from the date of the finding. It was never "law", even though, if it had been a statute or statutory provision, it might have been adopted according to the procedures for adopting legislation. Sometimes the problem is not that a statute is unconstitutional, but the application of it is, on a particular occasion, and a court may decide that while there are ways it could be applied that are constitutional, that instance was not allowed or legitimate. In such a case, only the application may be ruled unconstitutional. Historically, the remedy for such violations have been petitions for common law writs, such as quo warranto.

THERE ARE FIVE SOURCES THAT HAVE GUIDED INTERPRETATION OF THE CONSTITUTION:
(1) The text and structure of the Constitution, (2) Intentions of those who drafted, voted to propose, or voted to ratify the provision in question, (3) Prior precedents (usually judicial), (4) The social, political, and economic consequences of alternative interpretations, and (5) Natural law. There is general agreement that the first three of these sources are appropriate guides to interpretation, but considerable disagreement as to the relative weight that should be given to the three sources when they point in different directions. Many interpreters of the Constitution have suggested that the consequences of alternative interpretations are never relevant, even when all other considerations are evenly balanced. Natural law (higher law, God's law) is now only infrequently suggested as an interpretive guide, even though many of the framers of the Constitution recognized its appropriateness. Persons who favor heavy reliance on originalist sources (text and intentions) are commonly called "originalists." Persons who favor giving a more substantial weighting to precedent, consequences, or natural law are called "non-originalists." In practice, disagreement between originalists and non-originalists often concerns whether to apply heightened judicial scrutiny to certain "fundamental rights" that are not explicitly protected in the text of the Constitution.

DEFINITIONS
Textualist: An originalist who gives primary weight to the text and structure of the Constitution. Textualists often are skeptical of the ability of judges to determine collective "intent." Intentionalist: An originalist who gives primary weight to the intentions of framers, members of proposing bodies, and ratifiers. Pragmatist: A non-originalist who gives substantial weight to judicial precedent or the consequences of alternative interpretations, so as to sometimes favor a decision "wrong" on originalist terms because it promotes stability or in some other way promotes the public good. Natural Law Theorist: A person who believes that higher moral law ought to trump inconsistent positive law.

EIGHT REASONS ORIGINALIST

TO

BE

AN

Originalism reduces the likelihood that unelected judges will seize the reigns of power from elected representatives. 2. Originalism in the long run better preserves the authority of the Court. 3. Non-originalism allows too much room for judges to impose their own subjective and elitist values. Judges need neutral, objective criteria to make legitimate decisions. The understanding of the framers and ratifiers of a constitutional clause provide those neutral criteria. 4. Lochner vs. New York (widely considered to be a bad non-originalist decision). 5. Leaving it to the people to amend their Constitution when need be promotes serious public debate about government and its limitations. 6. Originalism better respects the notion of the Constitution as a binding contract. 7. If a constitutional amendment passed today, we would expect a court five years from now to ask what we intended to adopt. [Can the same be said for a court 100 or 200 years from now?] 8. Originalism more often forces legislatures to reconsider and possibly repeal or amend their own bad laws, rather than to leave it to the courts to get rid of them.

EIGHT REASONS TO BE A NONORIGINALIST

1. The framers at the Convention in Philadelphia indicated that they did not want their specific intentions to control interpretation. 2. No written Constitution can anticipate all the means that government might in the future use to oppress people, so it is sometimes necessary for judges to fill in the gaps. 3. Intentions of framers are various, sometimes transient, and often impossible to determine. Text is often ambiguous and judicial precedents can be found to support either side. In such cases, why not produce the result that will best promote the public good? It's better than flipping a coin. 4. Non-originalism allows judges to head off the crises that could result from the inflexible interpretation of a provision in the Constitution that no longer serves its original purpose. (The amendment process is too difficult and cannot be relied upon to save us.) 5. Non-originalism allows the Constitution to evolve to match more enlightened understandings on matters such as the equal treatment of blacks, women, and other minorities. 6. Brown vs Board of Education (on originalist grounds, it was decided incorrectly). 7. Originalists lose sight of the forest because they pay too much attention to trees. The larger purpose--the animating spirit--of the Constitution was the protection of liberty, and we ought to focus on that. 8. Nazi Germany: Originalist German judges did not exercise the power they might have to prevent or slow down inhumane programs.

JUDICIAL INTERPRETATION
The judicial function is all about interpretation. Judges and justices do not make law - that is the role of the legislature -- justices interpret existing law. Interpretation is an art, not a science. Sometimes, it's specific; other times, interpretation only yields more abstraction and obtuseness. Think of constitutional interpretation as trying to interpret the meaning of dreams. The dream in this case is the basic dilemma of any constitutional democracy -- how to assure majority rule while protecting minority rights (the Madisonian dilemma of avoiding tyranny by either the majority or minority). In order to resolve this dilemma, one needs some kind of theory, a guide, a roadmap, something to follow. It doesn't really matter which theory yields the most correct conclusions, as long as you have a theory which justifies why you are there trying to resolve the dilemma, and that theory harmonizes or resonates well with the goals of a constitutional democracy. There have been many debates over the different modes of constitutional interpretation. The first debate was in Marbury v. Madison (1803) when the Supreme Court first asserted its power of judicial review. Not only did this famous case establish that the Supreme Court would be the sole interpreter of the constitution, but it laid down several important ground rules, or assumptions (for later theories):

Assumption 1 - the Constitution is a set of rules Assumption 2 - the rules in the Constitution are to be regarded as supreme Assumption 3 - the rules embodied in legislation are inferior Assumption 4 - in cases of conflict, inferior rules must give way to superior rules Assumption 5 - in cases of dispute, it is the role of a judge to determine what rules to apply

Assumption 6 - the standard for assessing constitutionality must be the Constitution itself, not what judges would prefer the Constitution to mean.

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. Some scholars distinguish between "interpretation" assigning meanings based on the meanings in other usages of the terms by those the writers and their readers had probably read, and "construction" inferring the meaning from a broader set of evidence, such as the structure of the complete document from which one can discern the function of various parts, discussion by the drafters or ratifiers during debate leading to adoption ("legislative history"), the background of controversies in which the terms were used that indicate the concerns and expectations of the drafters and ratifiers, alternative wordings and their meanings accepted or rejected at different points in development, and indications of meanings that can be inferred from what is not said, among other methods of analysis. There is also a question of whether the meanings should be taken from the public meanings shared among the literate populace, the private meanings used among the drafters and ratifiers that might not have been widely shared, or the public legal meanings of terms that were best known by more advanced legal scholars of the time. Most of the U.S. Constitution appears to have been written to be understood by ordinary people of that era, although people then were much more literate in the law than people are now. However, many of its words and phrases are fairly deep legal terms that were only well understood by a few of the legally educated Founders, even though the general population probably had a rudimentary understanding of them. Constitutional controversies are about whether an official act is consistent with, and authorized by, a constitution or constitutional statute or court decision. Since a constitution is a law, and the supreme law within its domain, and authorizes statutes and other official acts which have a textual

expression, the principles of constitutional interpretation are essentially the same as the principles of statutory or judicial interpretation.

MODES OF CONSTITUTIONAL INTERPRETATION

1.ORIGINAL INTENT, or Original History, intended meanings of words - the reasoning behind this approach is that the framers carefully debated and chose their words precisely to produce neutral principles of law. Advocates claim it fosters consistency and stability in law, and keeps rights that exist today from ever disappearing tomorrow. Critics claim that it can be easily used to disguise ideological ends, that the framers were not of one mind, and historical records are lost. The doctrine of original intent was used in Hustler v. Falwell (1988) to find that cartoon parodies are a form of protected First Amendment expression. Intent of the framers is also the logic behind reasonable expectation of privacy in Katz v. U.S. (1967). Another place where the doctrine is framed is over whether capital punishment is cruel and unusual, as those words were used by the writers of the Eighth Amendment. The leading proponents of original intent are Justice Stevens and to a lesser extent, Justice Ginsburg.

2. TEXTUALISM, or Literalism, Plain Words approach, ordinary meanings of words - this approach doesn't look any further than the words of the Constitution itself; it doesn't try to infer any intended meanings. The reasoning is that justices should take the words as written and promulgated to the people of the United States. A pure textualist, or literalist, approach looks for key phrases like "Congress shall make no law...abridging the freedom of speech" and finds that no law means no law. Reading the Constitution literally is also called strict construction. Other strands of textualism try to understand what the words would have meant to the people at the time they were written. Advocates claim it produces value-free jurisprudence and keeps justices in touch with the people. Critics claim it leads to inconsistent decision making, and represents a static, non-living document view of the

Constitution. Textualism is often found in Fourth, Fifth, and Sixth Amendment cases involving criminal procedure when the Court decides to go off in some new expansionist or restrictionist direction. Textual analysis was present in Coy v. Iowa (1988) which struck down a system in which child witnesses could testify behind a screen. The leading proponent of textualism is Justice Scalia and to a lesser extent, Justice Rehnquist.

3. PRECEDENT, or Stare Decisis, look at previously decided cases - this is the doctrine of stare decisis (let the decision stand) which means that the Supreme Court looks at its own past decisions. Technically, all courts are bound to follow the rule of law in all previous decisions by higher courts (the Supreme Court being no exception), in what is called the holding. The holding of a case is the opposite of dictum, what is irrelevant to decide a case. For example, if a case involves overturning a confession police obtained from a mentally retarded person, the part about the person being mentally retarded would be the dictum, and the rule that police should not obtain confessions from any mentally challenged person would be the holding. Advocates claim that precedent serves as a clear-cut guide, makes interpretation predictable, and keeps the Court from reversing itself. Critics claim that precedent is used as a weapon rather than guide, justices often pick and choose which precedents they like, and that the Supreme Court has generated so much precedent that support for any conclusion is possible. Precedent is often used as a rationale to limit the rights of criminal defendants. The leading proponents of precedent today are Justice Rehnquist and to a lesser extent, Justice O'Connor. Precedent was present in the reasoning behind the famous desegregation case of Brown v. Board of Education (1954), although that case also involved social scientific testimony that Justices who follow precedent don't always favor.

4. LOGICAL, or Mathematical, put words into logic formulas - this is the approach that justices ought to engage in formal reasoning, usually in the form of a syllogism, a type of logic which draws a conclusion from a major and minor premise. Advocates claim that it gives legal reasoning a scientific justification. Critics claim that minor premises are often faulty and lead to invalid conclusions. Currently, there are no Supreme Court justices that use

this method. The most famous case to use logical reasoning is Marbury v. Madison (1803) which created the right of judicial review.

5. PRUDENTIALISM, or Doctrinal, if appropriate for adversary process this is a common approach found throughout the court system. What every prosecutor knows is that you only try cases you can win with, look good in court with, and call forth established doctrines or rules of law. The Supreme Court is no exception. It avoids unfamiliar ground, but in some cases will decide on a case very carefully and thoroughly simply in order to allow important legal arguments to be heard, to enhance the prestige of the Court, and to clarify important doctrines. It's unknown how many Supreme Court justices explicitly adhere to this approach, but whenever you get lengthy opinions that cover a wide range of subjects and doctrines, you know its being used. An example is Baker v. Carr (1962) which was a judicial review over legislative redistricting case involving the political question doctrine, the Equal Protection clause, standing, and justiciability.

6. STRUCTURALISM, or Aspirational, if maintains social order - this is a Constitution as "living document" approach which looks at each and every case as unique, and is more concerned with remedy-making than rulemaking. More case specific than philosophical, this method usually results in a balancing test, matching the powers of government on one side and the rights of individuals on the other side. It's unknown how many Supreme court justices use this method, but it's assumed the logic behind the famous abortion case Roe v. Wade (1973) is the idea of a living constitution.

7. Equitable also called ethical : Decision based on an innate sense of justice, balancing the interests of the parties, and what is right and wrong, regardless of what the written law might provide. Often resorted to in cases in which the facts were not adequately anticipated or provided for by the lawgivers. Some scholars put various balancing tests of interests and values in the prudential category, but it works better to distinguish between prudential as balancing the interests and values of the legal system from equitable as balancing the interests and values of the parties. It arises out of the Latin maxim, quitas est perfecta qudam ratio qu jus scriptum interpretatur et emendat; nulla

scriptura comprehensa, sed sola ratione consistens. Equity is a sort of perfect reason which interprets and amends written law; comprehended in no code, but consistent with reason alone. Coke, Littleton, 24. 8. Natural : Decision based on what is required or advised by the laws of nature, or perhaps of human nature, and on what is physically or economically possible or practical, or on what is actually likely to occur. This has its origin in such ancient Latin maxims as: Jura natur sunt immutabilia. The laws of nature are unchangeable. Jacob. 63. Impossibilium nulla obligatio est. There is no obligation to do impossible things. D. 50, 17, 185. Lex non cogit ad impossibilia. The law does not compel the impossible. Hob. 96. Lex neminem cogit ad vana seu inutilia peragenda. The law requires no one to do vain or useless things. 5 Coke 21. Legibus sumptis desinentibus, lege natur utendum est. Laws of the state failing, we must act by the law of nature. 2 Rol. Rep. 98.

Of these, only the first three, textual, original intent , and structural, are methods of interpreting or constructing the written constitution of government, and the original intent and structural methods may be more a matter of construction than interpretation. The last, natural, is construction (not interpretation) of the unwritten constitution of nature, or the unwritten constitution of society, which form a hierarchy of authority, with the constitution of nature superior to the constitution of society, and the constitution of society superior to the written constitution of government. The doctrinal, prudential, and equitable methods are not interpretation or construction of any of these constitutions, although judges often claim they are. There is an misguided tendency among modern judges to misrepresent what are essentially prudential or equitable decisions as constitutional constructions. Too many lawyers are complicit in this by casting what are essentially prudential or equitable arguments into constitutional terms. There is nothing inherently wrong with making prudential or equitable decisions. The U.S. Constitution confers both law and equity jurisdictions on federal courts, as do the state constitutions. The problem comes with treating such decisions as establishing precedents, especially binding ones. It is one thing to treat a decision as a precedent that clarifies some ambiguity in the constitution, but quite another to essentially insert a prudential or equitable decision into the constitution as a kind of amendment. Such decisions must not conflict with constitutions or constitutional statutes, but often do.

Doctrinal and prudential decisions are more troublesome. The doctrinal method may be compatible with the written constitution of government if it merely involves clarifications of ambiguities in the original text, but not when those doctrines depart from original legal understanding, as they sometimes do. The prudential method may be justifiable as necessary to handle large caseloads, but often neglect to render justice in particular cases, especially when they involve avoidance of controversy rather than a desire to settle all issues brought before the court.

CONCLUSION
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 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. 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. 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. 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.

2.

3.

4.

5.

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. 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. 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. 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 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. 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.

6.

7.

8.

9.

10. Implied powers are only to "carry into Execution" an expressed

11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.

BIBLIOGRAPHY
1. www.google.com

2. www.wikipedia.com 3. Book- keeping faith with the constitution