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There Is Nothing that Interpretation Just Is

17 Pages Posted: 1 Sep 2014  

Cass R. Sunstein

Harvard Law School; Harvard University - Harvard Kennedy School (HKS)

Date Written: August 29, 2014

Abstract

Some people believe that the very idea of interpretation requires judges to adopt a particular method for interpreting the Constitution. The problem with this view is that in constitutional law, the general idea of interpretation is compatible with a range of different approaches, and among them, none is mandatory, in the sense of having some unique or privileged connection with the general idea. Any particular approach must be defended on the ground that it would make our constitutional order better rather than worse. No one should doubt that there are legitimate questions about the institutional capacities of judges, and about the virtues and vices of a deferential role on their part; the answers to those questions can motivate a view about constitutional interpretation. But they do not depend on an understanding of what interpretation necessarily requires.

Keywords: interpretation, consequentialism, constitutional law

Suggested Citation

Sunstein, Cass R., There Is Nothing that Interpretation Just Is (August 29, 2014). Available at SSRN: https://ssrn.com/abstract=2489088 or http://dx.doi.org/10.2139/ssrn.2489088

Cass R. Sunstein (Contact Author)

Harvard Law School ( email )

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Harvard University - Harvard Kennedy School (HKS) ( email )

79 John F. Kennedy Street
Cambridge, MA 02138
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