Dead Hand Arguments and Constitutional Interpretation

Abstract:     
This Article attempts to reset the relationship between theories of constitutional authority and methods of constitutional interpretation. Several scholars assert that our reasons for respecting the United States Constitution as law - despite its imperfection and dead authors - strongly influence the proper method of interpretation for that text. The "why" of authority supposedly drives the "how" of interpretation. But this relationship can be better understood. To the extent an authority theory can be distinguished from interpretive method, it is true that the former will identify what counts as law to be interpreted. Beyond that, the asserted relationship fades. First, some authority theories actually depend on a given interpretive method rather than the reverse, and an overarching normative framework can independently suggest interpretive choices. Second, and oddly, the correlation between a constitutional authority theory's persuasiveness and its logical implications for interpretation seems negative. Perhaps the more persuasive, the less influential. This is so even putting aside institutional considerations, which already have been used to soften the influence of high theory on interpretation. Yet authority theories and interpretation may be connected in a different way. The link involves multiple sources of law, instead of the interpretive method for one text. An authority theory can gauge the relative strength of competing sources of law bearing on the same decision, helping to resolve conflicts among them. Even the Constitution is subject to an evaluation of its strength.

Keywords: constitutional law, authority, legitimacy, interpretation, originalism, path dependence, legal positivism, precommitment, social contract, Condorcet Jury Theorem, coordination, supreme law

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