The Irrelevance of Writtenness in Constitutional Interpretation

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 is a mistake. Nothing - or virtually nothing - follows from the writtenness of the American 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. For example, one can be committed to the constitutional text as focal point for legal coordination in the manner of the rules of the road; as a platform for common law reasoning; as a locus of normative discourse in a flourishing constitutional culture; or as one of many legitimate ingredients in a pluralistic practice of constitutional adjudication. 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. Our "commitment to written constitutionalism" may mean that we are unlikely to accept an answer to that question that does not accord some role to the constitutional text. But all plausible theories - not just originalism - do that. The writtenness of the Constitution can therefore provide no ground for choosing originalism over other plausible contenders.

Keywords: Constitution, Constitutional Interpretation, Originalism, Constitutional Theory, Writtenness, Persuasive Definition