It Doesn't Matter What 'Interpretation' Is

Abstract

There are many proposals on how to interpret a constitution. How should one (a judge, a legislator, a citizen) choose? Cass Sunstein answers this question in his recent book How to Interpret the Constitution? The book is both an introduction to debates on constitutional interpretation in the U.S., and a substantive argument about interpretive choice. Building on Sunstein’s previous work, the book argues that the idea of interpretation is capacious, encompassing several ways of interpreting (“there is nothing that interpretation ‘just is’”). The idea of interpretation does not settle which interpretive approach one should choose. Such choice should be based on normative criteria — specifically, on what makes the constitutional order better. In determining this, one should try to arrive at reflective equilibrium.

I focus here on constraints to interpretive choice. A common critique of Sunstein’s view is that it entails great discretion for judges. I argue that this critique is misplaced. It conflates two different questions. The first is: What are the reasons that determine interpretive choice? The second is: How should specific agents (e.g., judges), given the constraints of their role and other such considerations, choose? The claims that the concept of interpretation is broad, and that the relevant reasons for interpretive choice are normative, do not entail that judges should have no constraints in choosing a method of interpretation. An argument on the scope of the concept of interpretation, or on the reasons that bear on interpretive choice, does not, by itself, settle who should make that choice or whether, as a matter of fact, there are legal constraints on the interpretive choices of judges in a specific legal system.

I then turn to the concept of interpretation. Does it constrain interpretive choice? This seems implied in the critics’ concern with Sunstein’s broad concept of interpretation and its implications for judicial discretion. I argue that the idea of interpretation is irrelevant for interpretive choice, which is ruled exclusively by normative criteria. It is not only that there is “nothing that interpretation ‘just is’”. For interpretive choice, it simply doesn’t matter what interpretation is.

Keywords: Constitutional Interpretation, Interpretation, Legal Interpretation, Jurisprudence, Legal Philosophy, Legal Theory, Constitutional Law