70 Pages Posted: 25 Oct 2017 Last revised: 20 Dec 2017
Date Written: October 18, 2017
Do lawyers and judges use distinctive arguments when they interpret the Constitution? Should they? In a 2016 article, Is the Constitution Special?, Christopher Serkin and Nelson Tebbe argued that professionals do in fact interpret the Constitution differently from other sources of law, and they questioned the accepted justifications for that difference. Subsequently, the editors of the Cornell Law Review asked Richard Primus and Kevin Stack to respond to the article. The result is this “Debate,” which features several rounds of short responses, published together in the print edition. This format reveals disagreements among the authors about whether the Constitution is and should be interpreted distinctively, how the category “constitutional law” shifts over time, and how the Constitution’s mythic cultural status informs these questions. But it also uncovers much common ground, including a new way of understanding and debating the distinctiveness of constitutional interpretation. The authors conclude by considering what can be done to reduce some of the dangers that commonly accompany constitutional discourse.
Keywords: Debate, Constitution, interpretation, courts, constitutional law, statutory law, Affordable Care Act, free speech, amendments, values, discrimination, Supreme Court, Tebbe, Serkin, Primus, Stack, Ratchet Effect, politics, legislation, lawyers, lawmakers, Bill of Rights, Commerce Clause
Suggested Citation: Suggested Citation