Against Political Theory in Constitutional Interpretation

59 Pages Posted: 18 Jan 2023 Last revised: 6 Dec 2023

See all articles by Christopher Havasy

Christopher Havasy

Penn State Dickinson Law

Joshua Macey

University of Chicago Law School

Brian Richardson

Cornell Law School

Date Written: January 16, 2023

Abstract

Judges and academics have long relied on the work of a small number of Enlightenment political theorists—particularly Locke, Montesquieu, and Blackstone—to discern meaning from vague and ambiguous constitutional provisions. This Essay cautions that Enlightenment political theory should rarely, if ever, be cited as an authoritative source of constitutional meaning. There are three principal problems with constitutional interpretation based on eighteenth-century political theory. First, Enlightenment thinkers developed distinct and incompatible theories about how to structure a republican form of government. That makes it difficult to decide which among the conflicting theories should possess constitutional significance. Second, the drafters did not write the Constitution in the image of the philosophy of Montesquieu, Locke, or Blackstone. Instead, they developed a new form of government to meet what they perceived to be the needs of a nascent republic. And third, the Constitution itself departs from the dominant strands of Enlightenment political theory in crucial respects. For example, while some Enlightenment theorists advocated for precisely divided federal powers, the drafters favored a system of procedural checks, not formal separation. Thus, while Enlightenment works can be normatively persuasive or act as a guide to historical meaning, they should be treated as presumptively irrelevant in constitutional interpretation. Unless the party who would invoke an Enlightenment political theorist can produce evidence of consensus or common ground about that theory from an episode of American constitutional debate, the theorist’s prescriptions are no more probative than any other work of normative political theory.

Suggested Citation

Havasy, Christopher and Macey, Joshua and Richardson, Brian, Against Political Theory in Constitutional Interpretation (January 16, 2023). Vanderbilt Law Review, Forthcoming, U of Chicago, Public Law Working Paper No. 825, Available at SSRN: https://ssrn.com/abstract=4324954 or http://dx.doi.org/10.2139/ssrn.4324954

Christopher Havasy

Penn State Dickinson Law ( email )

150 S College St
Carlisle, PA 17013
United States

HOME PAGE: http://www.chrishavasy.com

Joshua Macey (Contact Author)

University of Chicago Law School ( email )

1111 E 60th St
Chicago, IL 60637
United States

Brian Richardson

Cornell Law School ( email )

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