Chapter 3: The Constitution and its Construction

What is the Constitution

- Fundamental and paramount law of the nation

o System of fundamental laws for the governance and administration of a nation
o Written in every statute and contract
o Law of the land
- Supreme, imperious, absolute
o Unalterable except by the authority from which it emanates
- All laws must conform to the Constitution

6 Modes of Constitutional Construction

Constitutional Construction

- No mode of interpretation can claim priority over the other

- Approaches must be faithful to the statute’s language, structure, and history

Textualism

- Text is the most obviously authentic embodiment of constitutional truth

o Text as primary authority of interpretation
- Requires close attention to linguistic context
o Context clues
o Reliance on mere text is insufficient
- Disadvantages
o Not all Constitutional provisions are definitive
 Some are ambiguous and self-contradictory
o The approach risks limiting the provision to a specific timeline (e.g. century) and
rendering it obsolete to the present times

Structural Analysis

- Reading across words

o Looks at the physical arrangement of the Constitution’s text
- Structure
o The text shows but does directly say what it means
o Diction, word repetitions, and organization contributes to the meaning
 E.g. the division of text into articles, word repetitions, separate commas in the
preamble)
o Structure often sees the emphasis on a provision that the constitution makes

Originalism

- Lawmaker’s intent
o Application of the Constitution in a way the authors originally intended
- Original intent
o Supplements the text and structure of the provision
 o Original meaning
 To the author, the one who ratified it, and/or the general populace of the time
it was written
- Disadvantages
o Considers provisions as purely subjective
 The subjective intentions of lawmakers who are already dead
o Focuses on abstract intentions rather than concrete expectations
o Constitution’s authors did not always share the same intention/purpose in writing the
provisions
o Historical record of such intentions and goals are often dramatically inconclusive and
sometime contradictory

Normative

- Also called pragmatic approach

- Interprets with basis on the moral and political character and identity of the nation
- Disadvantages
o Inappropriate subjectivity
 Raises subjective values/characteristics and relates it to the text
 Rejects potentially consistent issues/values consistent with the text
o Appeals to values and commitments that are not part of constitutional law

Stare Decisis

- Judicial elaboration of a doctrine to answer constitutional questions

o E.g. Marbury v. Madison
- Constitutional law does not consist of only the provisions but also judicial precedents
o Courts interprets the provisions
o i.e. judicial opinions as a second set of constitutional text
- Advantages
o Flexibility
 Adapts to changes in relation to context
o Stability
 Stare decisis
 Allows for consistency

Combination of the Five

- Courts adhere to certain conventions when interpreting the Constitution

o Verba legis
 “Literally;” Ordinary meaning
 Intent and purpose of the text is found in the language itself
 Courts may rely on extraneous aids of interpretation
 E.g. Proceedings of the Constitutional Commission/Convention to
determine actual intent and purpose
- Ratio legis est anima
o The reason of the law is the spirit of the law
 o Constitutional text should be interpreted with the intent of its authors
- Ut Magis Valeat Quam Pereat
o It is better for a thing to have effect than to be made void.
o The constitution must be interpreted as a whole
 One mandate should not be prioritized over the other
 Unless the primacy of one provision is expressed
 Kida v. Senate
 Synchronization of elections and autonomy are equally important
principles in the Constitution

Basic Rules of Constitutional Construction

Constitution Interpreted as a Whole

- Ut Magis Valeat Quam Pereat

Words Understood as they are Commonly Used

- Words used should be understood in the sense that they have in common use and given their
ordinary meaning
o Except when technical terms are given
o E.g. “recognized as treaty” means that the other contracting party accepts or
acknowledges the agreement as a treaty; there was no need for the other party’s
recognition
- Constitution is not merely a lawyer’s document
o It may be understood and used commonly

Prospective Application

- Provisions of the Constitutions do not act retroactively

o Unless otherwise provided

Language Requires No Construction

- Where the words of a statute are clear, plain, and free from ambiguity
o It must be given its literal meaning
o No need for interpretation
- Interpretation should be used where a literal interpretation would be impossible, absurd, or
unjust.
- Verba Legis non est recedendum, index animi sermo est
o There should be no departure from the words of the statute, because speech is the
index of intention
o The legislature is presumed to know the meaning of the words

When Construction is Required

- When the law is clear and free of ambiguity/doubt, there is no room for interpretation
 o Only room for application
- Interpretation is only done when the law is impossible or inadequate to apply without doing so

Mandatory and Directory Provisions

Rule

- There is no rule in determining whether the language in a statue is mandatory or directory

- Issues must be addressed on a case-by-case basis
- Liberal construction of the provision would result in absurd, impossible, or mischievous
outcomes

Directory Provision

- When there is no consequence or liability in ignoring the original intent of the provision
o When the intent is accomplished in a manner other than prescribed
 Different approach, same results
o E.g. provisions on procedure

Mandatory Provision

- Generally, all constitutional provisions are mandatory

- Exceptions
o The period of deciding a case
 A directory, procedural process

Aids in Interpretation

Legal Research

- See authorities in legal research

Statutes and Executive Regulations Not Binding on Courts

Statutes and Implementing Rules

- Important in interpretation as contemporaneous interpretation

o Relative to its time only
- Not necessarily binding or conclusive to courts
o When the meaning of the provision is clear, there is no need to take an executive
regulation based on it into account

Self-Executing Provisions

Self-Executing

- Not all provisions are immediately operative; some are self-executing; some are not
o Litigants cannot invoke a provision just because it is there
- E.G. Art 2 Const. are not self-executing principles ready for enforcement through courts;
intended to be used by courts as aids or guides in judicial review and by legislation in lawmaking