Back to Basics: Constitutional Meaning and 'Tradition'

Abstract

This Article's focus is on the danger of reality being warped by a set of insider assumptions in the world of law and specifically, in the world of constitutional interpretation. Legal scholars' undivided focus on the engine parts of United States Supreme Court decisions and tests ignores the empty gas tank-the fact that those decisions and tests are largely disconnected from the document that they purport to interpret. These legal-insider dangers present a serious problem. Over more than two centuries of interpreting the United States Constitution, the Supreme Court has developed a mass of tests, standards, interpretations, and levels of scrutiny that have completely eclipsed the focus not only of judges but also of lawyers, law professors, and legal commentators. This article considers those concerns with a call back to constitutionalism.

Keywords: Constitution; interpretation; judicial

JEL Classification: K10