The Cost of the Text
13 Pages Posted: 22 Jul 2016 Last revised: 8 Aug 2016
Date Written: July 21, 2016
Prominent scholars have suggested that the major reason why constitutional decision making departs from the wording of enacted constitutional clauses more often than statutory decision making departs from the wording of enacted statutory clauses is that the U.S. Constitution has a large share of broadly worded clauses, such that constitutional text under-determines constitutional interpretation. I suspect that two other factors do more to account for the observed difference. One is the greater role of judicial precedent in constitutional interpretation, which results largely from the mere fact that the U.S. Code is orders of magnitude more extensive and more prolix than the U.S. Constitution and therefore gives rise to many more questions of first impression. The other is that constitutional cases are more apt than statutory cases to make judges feel that there is something big to lose from a decision that is unfortunate on its merits. The desire to avoid deeply unfortunate results is a major driver of a decision maker's willingness to buck preexisting authority, including the authority of enacted texts. Put another way, judges depart from texts when the cost of adhering to those texts is high. And the propensity of American legal practice to make the highest-stakes issues into issues of constitutional law means that the costs of unfortunate decisions are liable to skew high in constitutional contexts.
Keywords: Constitutional Interpretation, Textualism
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