Dead Hand Arguments and Constitutional Interpretation

67 Pages Posted: 10 Jan 2008

See all articles by Adam M. Samaha

Adam M. Samaha

New York University School of Law

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

Suggested Citation

Samaha, Adam M., Dead Hand Arguments and Constitutional Interpretation. Columbia Law Review, Vol. 108, 2008, U of Chicago, Public Law Working Paper No. 194, Available at SSRN: https://ssrn.com/abstract=1082052

Adam M. Samaha (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
514
Abstract Views
3,028
Rank
100,499
PlumX Metrics