Towards a Dramaturgical Theory of Constitutional Interpretation

Abstract

Like legal texts, dramatic texts have a public function and public responsibilities not shared by texts written to be appreciated in solitude. For this reason, the interpretation of dramatic texts offers a variety of useful templates for the interpretation of legal texts. In this Article, I elaborate on Jack Balkin and Sanford Levinson’s neglected account of law as performance. I begin with Balkin and Levinson’s observation that both legal and dramatic interpreters are charged with persuading audiences that their readings of texts are “authoritative,” analyzing the relationship between legal or theatrical authority and tradition. I then offer my own theory of constitutional interpretation organized around realizing the potential of the text. I test this theory against provisions of the U.S. Constitution written at varying levels of abstraction, using dramaturgical analogies to identify an appropriate interpretive framework for each type of provision. In doing so, I discover parts of the Constitution where merely applying the text “as written” in an originalist sense would be impossible. I argue that a dramaturgical approach to constitutional interpretation has advantages over previously proposed literary criticism-inflected approaches because dramaturgy answers to the demands of the present where these other approaches mainly look backward.

Keywords: Constitutional Interpretation, US Constitution, Constitutional Law, Originalism, Dramaturgy, Law and Literature