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Interpreting and Preserving the Constitution
ing of a clause in the Constitution. In certain instances, however, new
rules would have to be devised because a constitution is obviously different in many respects from a law or treaty and therefore raises unique
interpretive problems.
A basic interpretive task common to all three is the task of determining intent. What was the intent of the lawmakers who made the law? Of
the foreign ministers who drafted the treaty? Of the delegates who wrote
the Constitution? In his Commentaries on the Laws of England, Blackstone
noted that the first and fundamental rule in the interpretation of all instruments is to construe them according to the sense of the terms and the
intention of the parties. ‘‘The fairest and most rational method to interpret the will of the legislator is by exploring his intentions at the time
when the law was made,’’ wrote Blackstone, ‘‘by signs the most natural
and probable. And these signs are either the words, the context, the
subject matter, the effects and consequence, or the spirit and reason of
the law.’’
He went on to explain that words are generally to be understood according to their usual or popular usage. If they are ambiguous, then the
next step is to try to establish their meaning from the context, or by comparing them with other words and sentences in the same instrument, or
by comparing them with another law on the same subject. The law of England, for example, declares murder to be a felony ‘‘without benefit of
clergy.’’ To learn what the ‘‘benefit of clergy’’ means, it is necessary to
turn for guidance to other laws employing this term.
Failing here, the judge may find the intent of the law by observing the
subject matter or the purpose of the law. Blackstone cites as an example
an English law forbidding members of the clergy from purchasing ‘‘provisions’’ in Rome. This does not mean they are prohibited from buying
food and grain, but from securing nominations to ecclesiastical office,
which were called ‘‘provisions.’’ This is clearly what the statute intended
because its purpose was to prevent the Pope in Rome from usurping the
powers of the King, who is the head of the Church of England.
As for the effects and consequences, the rule, said Blackstone, is that
where words seem to lead the court to absurd results, it is helpful to
abandon their literal meaning and rely on common sense. A law, for example, stating that ‘‘whoever drew blood in the streets should be pun-