Constructed Constraint and the Constitutional Text
69 Pages Posted: 8 Feb 2014 Last revised: 21 Dec 2014
Date Written: August 11, 2014
In recent years, constitutional theorists have attended to the unwritten aspects of American constitutionalism and, relatedly, to the ways in which the constitutional text can be “constructed” upon by various materials. This Article takes a different approach. Instead of considering how various materials can supplement, implement, or interact with the constitutional text, the Article focuses on how the text itself is often partially constructed in American constitutional practice. Although interpreters typically regard clear text as controlling, this Article contends that whether the text is perceived to be clear is often affected by various “modalities” of constitutional interpretation that are normally thought to come into play only after the text is found to be ambiguous — the purpose of a constitutional provision, structural inferences, understandings of the national ethos, consequentialist considerations, customary practice, and precedent. The constraining effect of clear text, in other words, is partially constructed by considerations that are commonly regarded as extra-textual. This phenomenon of constructed constraint unsettles certain distinctions drawn by modern theorists: between interpretation and construction; between the written and the unwritten constitutions; and between the Constitution and the “Constitution outside the Constitution.” While primarily descriptive, the Article also suggests that constructed constraint may produce benefits for the constitutional system by helping interpreters to negotiate tensions within democratic constitutionalism.
Keywords: constitutional interpretation, textualism, constitutional construction, unwritten constitution
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