A Comment on Text, Time and Audience Understanding in Constitutional Law

7 Pages Posted: 5 Feb 2013

Date Written: January 1, 1995

Abstract

Professor Cunningham, in a provocative memorandum, asks how the legal landscape might change if courts interpreted statutes to reflect average citizens' understanding of statutory language. This is an intriguing thought experiment and perhaps even a wise proposal. Rather than address Professor Cunningham's experiment directly, however, I would like to consider a variant of it that nicely highlights important issues in my own field, constitutional law. Substituting "the Constitution" for "statutes," we have the following question: What if the audience understanding of rules of, say, contract law, applied to the interpretation of the Constitution?

When we switch our focus from statutes to the Constitution, a somewhat latent ambiguity in Professor Cunningham's question comes to the fore. Should judges interpret constitutional language in accordance with the common understanding of the words at the time the relevant provision was ratified, or at the time the case comes before the court? The ambiguity is not obvious in the statutory context because statutes are modified with much greater frequency than the federal Constitution, so that in a typical case of statutory interpretation, not much time will have elapsed between enactment and interpretation. There are, of course, exceptions, and in many ways statutory and constitutional interpretation are quite similar - as Professor Eskridge has so brilliantly illustrated 2 - so that much of what I say will apply to statutory interpretation as well. But for present purposes I shall confine my remarks to constitutional interpretation.

Keywords: Constitution, interpretation, language, statutes

Suggested Citation

Dorf, Michael C., A Comment on Text, Time and Audience Understanding in Constitutional Law (January 1, 1995). Washington University Law Review, Vol. 73, p. 983, 1995, Cornell Legal Studies Research Paper No. 13-11, Available at SSRN: https://ssrn.com/abstract=2211697

Michael C. Dorf (Contact Author)

Cornell Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

HOME PAGE: http://www.lawschool.cornell.edu/faculty/bio.cfm?id=333

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