Envisioning the Constitution

Abstract:     
If one of the more persistent problems of constitutional interpretation, particularly of the Bill of Rights, is that we lack a clear view of it, then it would appear that how we see the Constitution is as important as how we read it. What clauses we see as connected in order to form comprehensive values, such as federalism or rights protections, are not so much products of constitutional interpretation as constitutional vision. To obtain a view of the Constitution, we have to do more than derive semantic meaning from diverse articles and clauses. To have a vision of the Constitution is to have a general attitude of attending to particular matters rather than others, of connecting these matters to others in particular ways, and of making decisions based on seeing the matters in a specific light. Vision is the mechanism and metaphor through which attention is focused on particular constitutional matters. By envisioning the Constitution, one illuminates overall structures as well as particular meanings. For example, the meaning of the Equal Protection Clause is generally not determined by an interpretation of the clause's text or an "interpretation" of the Fourteenth Amendment, but rather by the way in which the Supreme Court is willing to look at a problem arising under the Equal Protection Clause - that is, what level of scrutiny is applied to the issue. Moreover, changed or competing visions drive substantive changes in the law. The thesis of this Article is that vision, by shaping the grounds for interpretation, is essential to constitutional law and legal theory.

Keywords: Constitutional Law, Interpretation, Equal Protection, Legal Theory

Accepted Paper Series