Hi, everyone. I'm Jackie, and I'm one of your TAs in the course. I hope you're enjoying the class so far and I'm happy to be here to help those of you learn about America's unwritten constitution. And for those of you who are with us for America's written constitution, welcome back. Now, now that you've listened to the first few weeks of Professor lectures, you're probably starting to realize that many of the concepts that we've grown to find inherent in our constitution. Some of our individual rights for instance, or the separation of powers between congress and the president. They actually can't be found anywhere in the document. And what we've learned from that is that, the Constitution can be interpreted in a number of different ways in addition to just reading the text of the document. And it's helpful to understand the different ways in which lawyers, and judges, and scholars derive meaning from the constitution, as we think about how reach beyond the text in this part of the course. And that's why today, I wanted to talk to you a little bit about the various methods of constitutional interpretation. Now one prominent cum laude scholar Columbia Law School named Phillip Bobbitt calls these the modalities of constitutional interpretation. And if you google his name or modalities, you'll be able to look at them yourself and study them a little more, but I just wanted to give you sort of a basic overview. So, Bob and I identify six different modalities and basically what he means is that, there are six different ways of making a constitutional argument. The first is the most familiar to all of you, and that's an appeal to text. So, you've seen this kind of argument being made already many times in this course. It's when a lawyer or a judge grounds his argument in the literal text or clause of the constitution. So, a judge might say something like, we know that Congress has the power to coin money because article one, section eight of the constitution explicitly says so. So you see, textual arguments are usually pretty clear and straight forward. But, sometimes one isn't able to rely on a specific clause of the Constitution, even if she believes that the document implicitly grants some sort of power or right. And so, in these cases, one might look to Bobbitt's second modality, which he calls constitutional structure. And this occurs when you're making an argument about a right or a power derived from the constitution based on the relationship among the different parts of the document. So, you might say something like the framers society to enumerate the powers of Congress first. They included Congress and not the executive in article one. And you might say that that means that the legislative branch to be more powerful or to be supreme over the executive. Or maybe you might say something like, the framers outline the powers of Congress before they outline the restrictions on that power, and so that means they meant for the powers of Congress to be interpreted expansively, rather than restrictively. And then third, you might also make a historical argument. This is the third of the six modalities, and you might try to do this when the text is, there, but kind of ambiguous, so, say the framers used a certain word in the constitution. And you want to figure out what they meant when they used that word, because maybe you're not sure since the word today can be interpreted in many different ways. And so, what you might do then is look back to the time that the framers wrote the clause, and ask yourself, what did the word mean, and how was it used at the time it was written into the constitution? And some people call this an original intent or an original meaning argument. And some of the justices on the Supreme Court are particularly fond of these, especially in the conservative wing of the nine justices. Or maybe, for instance, there's a lot of debate about how widely applicable the Second Amendment is. People ask does it apply to all persons or are only people in the military allowed to own a gun? And to understand how the framers meant for the second amendment to be applied, you might make some kind of historical argument. You might look back to how people thought about the right to bear arms in post-revolutionary America. And this is often considered again one of the most conservative of the modalities because you're really tethered to what the words or concepts in the constitution meant over two hundred years ago. And now, we'll turn to the fourth modality which is that you can make what is called a prudential argument. And this basically means that you might evaluate or interpret the constitution based on the practical considerations that are at issue, so you're really making an argument based on consequences. So you might say something like, what's going to happen to the relationship between Congress and the President if we grant the executive the power that he's asking for? Or what's going to happen if we, the court, declare that the right to marriage is present in the Constitution, even if the Constitution doesn't explicitly say that? Now, judges are very concerned about overreach, and so often they try to make their rulings, and their opinions, as conservative, and as incremental as possible. And so, the classic prudential argument would be something like the slippery slope argument. Maybe you've heard that term before, if you've ever taken a course in law or constitutional decision making or anything like that. And it would go something like this. If we grant Congress this power, what other unenumerated powers are they going to be able to assert, as a result? Or if we grant this right to the American people, what other individual rights can citizens then make a claim to? So, basically you are asking, what's going to happen if we take this argument to its logical extreme? And lawyers and judges are always thinking about the logical consequences of their argument, so, it's good to maybe get in the habit of doing that as you are learning in this course and as you watch the lectures. And then let's turn to the fifth modality, which is that you might make an argument appealing to what we call national character or ethos. And this modality is a little less clear cut, but basically what it means is that sometimes lawyers will make arguments because it just feels right, based on the lived experiences of the American people. And you're familiar with this concept from the past few lectures that you've listened to, as Professor Mora outlines how American people actually developed a right to certain privileges or liberties that aren't necessarily listed in the Constitution. And you also see these arguments being made a lot in the death penalty context, for instance, when judges talk about something called evolving standards of decency. And really the court is sad that governments cannot execute minors for instance, or people who hold a certain iq, because based on evolving American understandings about punishment to do so would be cruel and unusual. And so you, you see there is sort of an appeal to national character and ethos because basically, you're making an argument based on the changing values of the American people. And last, and possibly the most important to judges and lawyers, you can make a doctrinal argument based on judicial precedence. So, that's the sixth modality. Now, this means that you might say that based on the court's early rulings, they should decide a case in a certain way. And this is very important because judges are, are very loyal to existing precedent and they're very reluctant to overturn the holdings or opinions of earlier judges. And so, if you're going to make a constitutional argument, it will be much more compelling if you have some kind of precedent to rely on. If you can say, the court decided a similar case 50 years ago, and this is the ruling that they came out with, and as a result, that ruling should apply squarely to these facts or to this argument. But, sometimes that precedent just doesn't exist, and that's where the other modality sort of come to fit in. And so you'll start to see, I hope, as you continue with the course that there are many different ways to make constitutional arguments. And these are just six of, sort of, the most significant ones, but there are certainly others. And you can use one, or a combination of these modalities to make your case, as you think about how to interpret the constitution. And it will be helpful for you to sort of keep these modalities in mind as you proceed throughout this course. And as you read and you watch the lectures, ask yourself what kind of constitutional argument is Professor Mar making? Is he appealing to history, or to ethos, or directly to the text itself? And ask yourself too, which of these modalities do you find the strongest or the most persuasive? And if you start to internalize these meso, methods of interpretation, then you're on track to start to start thinking like a lawyer or law student. So, thanks for watching and enjoy the rest of the class and I'll see you soon. [MUSIC]
