The Supreme Court, 2014 Term — Foreword: Does the Constitution Mean What it Says?

Abstract

The conventional view is that constitutional law begins with the text of the Constitution and proceeds from there. But that misdescribes U.S. constitutional law. Controversies in constitutional law are, almost always, about the meaning and effect of precedents, not about the text. Many important principles of constitutional law are inconsistent with the most natural reading of the text. The precedents govern the text, rather than the other way around; the text becomes important only when there are few precedents.

Constitutional law, in a word, is not a text-based system, but a mixed system in which provisions of the text are treated roughly like precedents: they are expanded, limited, qualified, reconceived, or all-but-ignored, depending on how the law develops, and on judgments about how the law should develop.

Keywords: constitution, constitutional interpretation, common law, textualism, originalism