The irrelevance of writtenness in constitutional interpretation

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Abstract

Arguments about the nature of judicial review and appropriate methods of constitutional interpretation based on the "writtenness" of the Constitution date back at least to Marbury v. Madison. In recent years, originalists ranging from Jack Balkin to Keith Whittington to Randy Barnett have argued in varying fashion that an originalist interpretive approach follows logically from "our commitment to a written constitution. " This argument has been extraordinarily important to the ongoing originalism renaissance, but it is a mistake. Nothing - or virtually nothing - follows from the writtenness of the U.S. Constitution. One can be committed to a written constitution in any number of ways for any number of reasons, the vast majority of which do not entail an originalist interpretive approach. The originalist argument to the contrary is one instance of a broader rhetorical phenomenon that the philosopher C.L. Stevenson helpfully labeled "persuasive definition. " It is an attempt to resolve a normative debate through redefinition of a normatively charged term - in this case, "interpretation. " There is broad agreement that judges should interpret, rather than make, the law. Thus, by redefining "interpretation " to include only originalist interpretation, originalists appear to answer the normative question of how judges should decide constitutional cases. But it is only an appearance. Their argument sheds no light on the actual normative question at issue, which is how we should want judges to decide constitutional cases.

Original languageEnglish (US)
Pages (from-to)1025-1091
Number of pages67
JournalUniversity of Pennsylvania Law Review
Volume158
Issue number4
StatePublished - Mar 1 2010
Externally publishedYes

ASJC Scopus subject areas

  • Law

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