68 Pages Posted: 13 Mar 2023
Date Written: March 9, 2023
A potential critique of any given theory of constitutional interpretation is that the theory is susceptible to abuse by judges and attorneys. One version of the critique raises the prospect of disingenuous interpreters hijacking the theory to reach desired results. Another version suggests that incompetent interpreters will fail to properly apply the theory. These concerns are almost always met with a standard response: they do not undermine the theory of interpretation because intentional or unintentional misapplications and mistakes are not a problem with the theory itself. The problem is with the practitioners, not the theory. Those who engage in constitutional interpretation simply must do so correctly and in good faith.
I push back against this response and argue that debates over theories of constitutional interpretation must consider and account for the prospect of disingenuous interpretation. I introduce and compare a variety of interpretive theories and evaluate how each of them stands up to disingenuous interpreters who seek to reach desired ends, and incompetent interpreters who are prone to error in their analysis. In doing so, I demonstrate that some theories lend themselves to abuse, and some resist it. Based on this survey of theories, I analyze features common to those theories that tended to resist disingenuous and ignorant interpreters. I conclude that theories that are more transparent, simpler, and less discretionary tend to resist disingenuous interpreters’ abuse and ignorant interpreters’ errors. Finally, I argue that ease of implementation itself should be a normative consideration when debating whether to accept a particular theory of constitutional interpretation over alternatives.
Keywords: constitutional law, constitutional interpretation, originalism, traditionalism, moral readings, common good, pragmatism, common law constitutionalism
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