The Historical Case for Constitutional 'Concepts'
73 Pages Posted: 19 Jun 2018 Last revised: 12 Jul 2018
Date Written: June 7, 2018
The concepts/conceptions dichotomy is prominent in both communication theory and the field of constitutional interpretation. It is most prominently illustrated by the provisions in the Constitution that contain broad, open-ended moral language. Those who hold the “conceptions” view believe that the legal content of those provisions includes both abstract moral concepts and its communicators’ subjective beliefs about, or conceptions of, how those concepts should apply. Under this view, the judge’s role is mostly empirical: he is tasked with examining historical evidence to ascertain those conceptions, which in turn supply applicational criteria by which he can decide specific cases. Those who hold the “concepts” view believe that the Constitution’s language directs the reader to objective moral concepts only; hence, its legal content does not contain any particular person’s or group of persons’ conceptions of those concepts. Thus, under this view, the judge’s task is mostly analytical: he must attempt to analyze the concepts to ascertain their defining criteria and develop applicational criteria from that analysis.
Through a focused study of the interpretive methods of William Cushing, James Madison, and lawmakers in the Virginia House of Delegates, this Article demonstrates that this debate has existed since at least the founding era, and that the above-named founding-era authorities held a conceptual view of the Constitution. It then reflects upon their interpretations to reveal that they used the Constitution’s text, structure, and moral authority to apply its concepts to the cases before them. Finally, this Article sets forth a preliminary sketch of the conceptual approach’s normative claim. It concludes that the conceptual approach taken by these authorities better respects the constitutional text, the Rule of Law, and the ideal of objectivity in law than those that seek to derive legal content from the conceptions of past actors.
JEL Classification: K, K40, K10
Suggested Citation: Suggested Citation