Ethical/Values-Oriented

Approach to Constitutional
Interpretation

Lawrence H. Tribe

Report by John Colin E. Yokingco

I-EVE

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#1 Guess the year!
Lobotomy

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Answer: 2006

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#2 Guess the year!
Public execution by Guillotine

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Answer: 1977

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#3 Guess the year!
Segregation of public schools for black and white
children

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Answer: 1954

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Ethics
Also known as moral philosophy
A sub-branch of axiology, along with aesthetics
Both sub-branches are concerned with Values
it involves systemizing, defending, and
recommending concepts of right and wrong
conduct.

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Construing the Constitution in
Accord with the Nations Values:
The Place of Normative and
Pragmatic Arguments in
Constitutional Interpretation

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 Criticism of approach might be too
subjective
But, consider.
- choice of any interpretative method reflects the
embrace of some substantive values not
necessarily and unambiguously enacted by the
constitutional text and the rejection of others
potentially consistent with the text.

-interpretation that appeals directly to values deemed by the interpreter to be worthy

not simply because they are his own, but because the interpreter is prepared to
defend them as the quintessential American values reflected in the constitution itself
seems eminently defensible

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 Example
Brown V. Board of Education of Topeka (1954)
This is the case where the U.S. Supreme Court
declared that state laws which establishing
separate public schools for black and white
students was unconstitutional.
The Court was unanimous in this decision

Robert Post has explained that this was an example of a case that used that same
approach

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 Cont.
Ideally, any values to which an interpreter
appeals directly or that underlie an interpretive
mode the interpreter uses will be values in some
sense embodied in the Constitution itself or at
least in our nation's constitutional heritage.

-the interpreter who is self conscious about and candid in describing, just what
better angels of our nature are carrying that interpreter aloft is likely to pursue an
idiosyncratic vision unrooted in our national experience and constitutional traditions,
and less likely to produce an opaque and unconvincing reading of the constitutional
materials than are the interpreters who are secretive about the vision driving their
analysis of the interpreters who are genuinely unconscious that any such vision is of
work and unaware of what its contents are as it invisibly shapes the reading of the
constitution.

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 Cont.
The project of interpretation cannot be divorced
entirely from values or influences extrinsic to the
document being interpreted

a value-driven reading of the Constitution is

inevitable, ungirding as it must every other
mode of interpreting the document

Any interpretive mode will be most convincing to the extent that it draws upon
something in the nation's ethos that is reflected in, or that manifestly sheds light on
the Constitution

If Constitution is not itself regarded as reflecting a commitment to the binding nature

if text: Textualism becomes empty formalism
If the Consitution itseld reflects no national commitment to respecting the
agreements of the past, Constitutional history and its original meaning may become
Aimless
If we are not deeply commited through the Constitution itself, to the reule of law
values of stability, predictability, and reliance that following and elaborating upon
prior judicial decisions help ensure then: Stare DecisisPrecedent seems to depart
from constitutional values

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 Picture and the apple
Abraham Lincoln wrote the following:
The Assertion of that Principle [Declaration of
Independence/Liberty for all], at that time, was
the word fitly spoken which has proven an
apple of gold to us. The Union and the
Constitution are the picture of silver framed
around it.

The picture was not made to conceal or destroy the apple, but to adorn and preserve
it. The picture was made for the apple, not the apple for the picture.

It reflected Lincolns assertion of abolishing slavery in spite of the constitutional

provision of the Fugitive Slave Clause.

Is the significance of the appeal to any given value itself historically contingent?
Is it a proper final form for expressing constitutional conclusions?

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 Proposition
1. Values and commitment if they do not obviously
originate in constitutional provisions, structures,
or history, must find their location in some other
source deeply linked to our national experience

Legal analysis may reveal certain patterns of emphasis, recurring recognition of

government actions, supplying norms for evaluating the propriety of legislation or
other official acts that are the subject of Constitutional challenge.

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 Cont.
2. If values and commitments are thought to be
matters of common decency or right reason, the
form in which they are articulated may be as
relevant as substance

Self-evident norms provide cautionary reasons not to adopt certain constitutional

principles. Cautionary vs. the Affirmative

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 Cont.
3. Appeals to values and commitments figure
differently in preliminary constitutional analyses
an in final constitutional statements.

Advocates of appeals to values put arguments or alludes to the language of

constitutional provisions

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Conclusion
Appeals to values must satisfy legal subject-
matter expectation and like all other forms of
Constitutional argument become vulnerable to
criticism for falling short in that respect
The final form of constitutional argument must
always adequately accommodate text.

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Illustrative Case
Maquiling v. Comelec
Relevant Facts:
Arnado is a natural Filipino Citizen who eventually lost it
through naturalization in the U.S.
In 2008 Arnado re-acquired his citizenship via the process
in RA 9225 (Repatriation) by taking the oath of allegiance
He further strengthened his re-acquisition by filing an
affidavit of renunciation for his U.S. citizenship. And taking
the oath of allegiance once again
In 2009 Arnado ran for mayor in the municipality of
Kausungan, Lanao Del Norte and subsequently won.
Before his subsequent victory, Arnados candidacy was
questioned because of his use of his U.S. Passport in a trip
in November 2009

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Cont.
Decision
The Court ultimately ruled in favor of the
petitioner and disqualified Arnado and declared
Maquiling as the duly elected mayor

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 Cont.
Relevant Issue:
W/N The use of foreign passport after renouncing
one's foreign citizenship is a positive and
voluntary act of representation as to one's
nationality and citizenship;

it does not divest Filipino citizenship regained by repatriation but it recants the Oath
of Renunciation required to qualify one to run for an elective position.

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Cont.
1987 Constitution:
Article IV Sec. 5 - Dual allegiance of citizens is
inimical to the national interest and shall be
dealt with by law.

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In Connection with Tribe
Ratio
The renunciation of foreign citizenship is not a
hollow oath that can simply be professed at any
time, only to be violated the next day. It requires an
absolute and perpetual renunciation of the foreign
citizenship and a full divestment of all civil and
political rights granted by the foreign country which
granted the citizenship.

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Tribe
Any interpretive mode will be most convincing to
the extent that it draws upon something in the
nation's ethos that is reflected in, or that
manifestly sheds light on the Constitution

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Conclusion

we seek through our Constitution and the

process of interpreting itto articulate our
common commitment to the flourishing of the
mutual enterprise of nationhood

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