CONSTITUTIONAL INTERPRETATION: A VIEW FROM A DISTANCE

2010

In recent years academic explanations of the originalist approach to constitutional interpretation have shifted the relevant inquiry from the subjective intent of the constitution-makers to the "original public meaning" of the Constitution's words. This article is a critical analysis of that development. In the actual course of adjudication by honest and competent judges either method should usually yield the same result. The reliance on public meaning, however, distracts the interpreter from the connection between the normative force of the Constitution and the founding events, a link that is essential to the legitimacy of constitutional judicial review. In the hands of less careful or less rigorous judges, moreover, abandoning intent as the central object of interpretation enlarges the range of plausible outcomes, threatening, as a practical matter, to subvert the clarity and stability of constitutional meaning that is central to the constitutionalist enterprise

In recent years, the literature of constitutional originalism has adopted a new concept, “constitutional construction.” This Essay is a critically examines that concept. Contrary to some claims, the difference between “interpretation” and “construction” is not well established in common law adjudication. Furthermore, contemporary descriptions of constitutional construction tend to leave some ill-defined discretion in the hands of constitutional decision-makers. Finally, the Essay disputes the claim that constitutional construction is indispensable because the constitutional text is incomplete, that failing to provide a decision-rule for many—indeed for most—constitutional disputes. The Constitution would indeed be incomplete if interpreted according to the “new” or “public meaning” version of originalism. At least in the context of constitutional adjudication, however, originalist interpretation seeking to identify the meaning of the text that was actually intended by the people whose assent made it law, leaves no indeterminate constitutional controversies. In every argument about the application of a constitutional provision to an actual dispute, one side’s interpretation will always better conform to that original meaning. In that sense, at least, the Constitution is complete.

Fordham Law Review, 2013

1984

In reviewing laws for constitutionality, should our judges confine themselves to determining whether these laws conflict with norms derived from the written Constitution? Or may they also enforce principles of liberty and justice when the normative content of those principles is not to be found within the four corners of our founding document?" I In two oft-cited articles Professor Thomas C. Grey has answered these questions, contending that judges who appeal to sources beyond the written document are acting as the framers wished. The implications of this conclusion are potentially far-reaching. For if Grey is right, then freewheeling judicial review can be justified even by reference to that most conservative of constitutional standards: the framers' intentions. Who then will take seriously the case for principled judicial restraint? Grey claims that the natural rights tradition of the 18th century created a reservoir of legally binding principles that could be drawn upon by judges as an unwritten constitution, supplementary to the written one. Rejecting this approach, some scholars have argued that the natural rights tradition is (and was originally perceived to be) irrelevant to constitutional interpretation.2 This article defends an intermediate position: that the written Constitution was meant to embody the natural rights commitments of the framers, and that therefore judicial appeals to "higher law," for example, are not justifiable to the extent that they lead to a distinction between written and unwritten constitutions. From this perspective the positivists are correct in their insistence upon the exclusive authority of the written document, but fundamentally misguided in their understanding of the nature of this docu

Fordham Law Review, 2013

Constitutional interpretation is the activity that discovers the communicative content or linguistic meaning of the constitutional text. Constitutional construction is the activity that determines the legal effect given the text, including doctrines of constitutional law and decisions of constitutional cases or issues by judges and other officials. The interpretation-construction distinction, frequently invoked by contemporary constitutional theorists and rooted in American legal theory in the nineteenth and twentieth centuries, marks the difference between these two activities.This Article advances two central claims about constitutional construction. First, constitutional construction is ubiquitous in constitutional practice. The central warrant for this claim is conceptual: because construction is the determination of legal effect, construction always occurs when the constitutional text is applied to a particular legal case or official decision. Although some constitutional theor...

The American Historical Review, 1997

Social Science Research Network, 2017

This article explores two assumptions about constitutional law and the form of practical reasoning inherent in constitutional argument and decision that have shaped the debate over originalism. The first assumption-adopted by originalists-is that constitutional reasoning is a formalistic process. Originalism's critics tacitly describe a very different and less formalistic model. The second assumption-shared by originalists and most of its critics alike-is that the central task of constitutional decision is to interpret the Constitution. Both of these assumptions are wrong. Constitutional argument is not, and cannot be, reduced to the formal model of reasoning tacitly employed in originalism. The critics of originalism correctly point out that constitutional argument is more complex than originalism's formal account allows. But those critics share with originalists the mistaken premise that our constitutional practice begins with interpretation. That agreement masks the substantial differences in their respective accounts of interpretation, however. This Article demonstrates how these two assumptions have contributed to the fruitlessness of the debate. For example, if we reject the premise of the logical priority of interpretation the celebrated problem of generality dissolves. By articulating the jurisprudential foundations of the debate, this Article allows us to recognize the sterility of the debate over originalism and the likelihood that it cannot be successfully resolved by the protagonists on either side of the debate. While discarding the formalism of contemporary originalism does not compromise core originalist claims, the importance of that formalism to some of originalism's stronger claims of privilege makes such an approach less attractive to originalism. Originalism's critics, while right about constitutional reasoning, fail to discredit other important originalist claims. Thus, the protagonists in the debate may be likely to continue even after better understanding interpretation and the practice of constitutional argument. That would be a mistake. A better account of the place of interpretation and the nature of practical reasoning in constitutional reasoning also opens up the alternative of moving beyond the fruitless, stalemated debate about originalism.

International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique, 2020

In this article, we suggest an alternate approach to interpreting the US Constitution, using founding-era translations. We demonstrate how both symmetries and asymmetries in structure and vocabulary of the languages involved can help in deciding nowadays’ problems of constitutional interpretation. We select seven controversial passages of the US constitution to illustrate our approach: Art. I, § 8, cl. 3 (“to regulate commerce”); Art. II, § 1, cl. 5 (“natural born citizen”); Art. II, § 2, cl. 3 (“recess”); Art. I, § 6, cl. 1/Art. I, § 8, cl. 10/Art. IV, § 2 (“felony”); and Art. IV, § 2, cl. 1 (“privileges and immunities”). Since these passages have recently been debated by constitutional scholars, reassessing them using our method can establish the additional value of our approach to constitutional practice. We presume that our approach is not limited to interpreting the US constitution, but suggest that constitutional hermeneutics in general could profit from adding a translation a...

Diponegoro Law Review, 2016

Hermeneutics can be used as a foundation of understanding on the interpretation of the constitution. Hermeneutic goal is not to develop a set of rules or procedures (methods) on textual interpretation, but as meta in the interpretation. Problems of constitutional interpretation cannot be blasted between theories that exist in the interpretation of the constitution. Clash between theories will not be able to resolve the constitutional issue. Each theory has a foundation of rationality and justification of each method. Therefore, the settlement should be drawn more into the realm of deep again, i.e. into the realm of ontology. The purpose is not to develop a set of rules or procedures on the interpretation of the text “method (be cognitive)” but the search for answers to no interpretation itself “ontis”. So objectivity lies in philosophy, then identified “not on what we do or we should do (in interpretation), but what happens to us other than what we want and do”. So it is clear that ...