I. Literalism: literal text of the Constitution

• Just read the words: All answers found in the wording of the Constitution.
• No external sources as support.
• Complete belief in Constitution's ability to provide answers.

  Advantage:

  1. Removes judge's predisposition: Follow the law, not what the judge wants the law to say.

  Problems with Literalism:

  1. Seemingly inconsistent outcomes: Seem at odds.
  2. Ambiguity in Constitution: Sometimes seem intended by framers to provide flexible document.
  3. Lack of precision in language itself: Words have different meanings and contexts.
  4. Some values in Constitution are at odds with each other, but the literalist approach offers no guidelines for resolving the differences.

II. Original Intent: historical basis; intent/motives of framers

• What is the law supposed to mean? Purpose of Law?
• What the framers intended the Constitution to mean.

  Advantage:

  1. To deviate from intent is to change the nature of the Constitution.
  2. Law doesn't change according to interpretations of judges.
  3. Starting point when faced with unanticipated circumstances: Derive principles and apply to circumstances.

  Disadvantages:

  1. Lack of complete record: No transcript of Convention debate
  2. Whose intention to follow? Whom do we mean by framers?
  3. Demands that judge know something that is in some sense unknowable: How do you truly know true intent?

III. Doctrinal Approach: follow precedent

principle of Stare de cisis: "Let the decision stand"
• New cases should be decided the same way as old cases.
• Follow precedents if similar facts in previous cases.
• Makes laws stable and predictable so people know what to expect because judges follow previous decisions.

Advantages:

1. Adopt principle and apply to cases with similar circumstances: Attempts internal consistency by judges in decisions.
2. Consistency and continuity in law.

Disadvantages:

1. Size & diversity of cases/rulings: Always find precedent for either side.
2. Most common approach, but it's used by judges in both majority and minority opinions.
3. Difference between
   ratio decindi: underlying principle/rule of decision
   obiter dictum: excess language; legal reasoning to support decision
   Which is which?
4. Justices can alway decide facts of case are different from precedent: No guidelines for following precedent.

IV. Competing Interests (Prudential): balance one interest against another

• Which outcome is most sensible? Practical application of what judge believes he or she ought to do.
• Which value deserves more protection?
• Concerned with deciding on case-by-case basis: What makes the most sense for those circumstances?
• Recognizes implications of the decision.

  Problems:

  1. Fails to ensure consistency: Less weight to precedents. Depends on what judge thinks.
  2. No standard means of making a decision: Judges have to weigh criteria on their own. Should be a standard under which any judge could come to same conclusion.
  3. Subjective opinion of judge.

  Difference between Prudential and Precedent:

  • Prudential = particulars of case over legal principle
  • Precedent = principle over particulars of case

V. Structuralism: larger relationships within the Constitution, not specific provisions

Problems:
1. More abstract approach means less accurate.
2. More chances of multiple interpretations.
3. Subjective

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